IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ^1^1^ itt B2 g2.2 2f HA ■■ Sf L& 12.0 I.I 1^ Miii 1^ i Fhotographic Sciences Corporation ^ g>- \ h. \ N «%^ *"%* ^ CIHM/ICMH Microfiche Series. CiHIVI/iCIVIH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques Technical and Bibliographic Notaa/Nota* tachniquaa at bibliographiquaa Tha tot Tha inatituta haa attamptad to obtain tha baat original copy avaiiabia for filming. Faaturaa of thia copy which may ba bibliographically uniqua, which may altar any of tha imagaa in tha raproduction, or which may aignificantly changa tha uaual mathod of filming, ara chackad balow. D D D D Colourad covara/ Couvartura da couiaur r~1 Covars damagad/ Couvartura andommagte □ Covara raatorad and/or laminatad/ Couvartura raataurAa at/ou palliculAa r~~1 Covar titia miaaing/ La titra da couvartura manqua Colourad mapa/ Cartaa gtegraphiquaa an couiaur Colourad ink (i.a. othar than blua or black)/ Encra da couiaur (i.a. autra qua blaua 9u noira) I I Colourad plataa and/or illuatrationa/ D Planchaa at/ou illuatrationa an couiaur Bound with othar matarial/ Rail* avac d'autraa documanta Tight binding may cauaa ahadowa or diatortion along intarior margin/ La re liura aarr^a paut cauaar da I'ombra ou da la diatortion la long da la marga intAriaura Blank laavaa addad during raatoration may appaar within tha taxt. Whanavar poaaibia, thaaa hava baan omittad from filming/ 11 aa paut qua cartainaa pagaa blanchaa aJoutAaa lora d'una raatauration apparaiaaant dana la taxta, maia, ioraqua cala Atait poaaibia, caa pagaa n'ont paa At* fiimiaa. Additional commanta:/ Comrnantairaa aupplAmantairaa: L'Inatitut a microfilm* la maillaur axamplaira qu'il lui a *t* poaaibia da aa procurar. Laa ditaila da cat axamplaira qui aont paut-itra uniquaa du point da vua bibliographiqua, qui pauvant modifiar una imaga raproduita, ou qui pauvant axigar una modification dana la mAthoda normala da filmaga aont indiqute ci-daaaoua. D D D D D D D D Colourad pagaa/ Pagaa da couiaur Pagaa damagad/ Pagaa andommagAaa Pagaa raatorad and/or laminatad/ Pagaa raataur^aa at/ou pallicultea Pagaa diacolourad, atainad or foxad/ Pagaa dicolortea, tachatAaa ou piqutea Pagaa datachad/ Pagaa dAtachAaa Showthrough/ Tranaparanca Quality of print variaa/ Qualit* InAgala da i'impraaaion Includaa aupplamantary matarial/ Comprand du material auppMmantaira Only adition avaiiabia/ Saula Mition diaponibia Pagaa wholly or partially obacurad by arrata alipa, tiaauaa. ate, hava baan rafilmad to anaura tha baat poaaibia imaga/ Laa pagaa totalamant ou partiailamant obacurciaa par un fauillat d'arrata, una palura, ate, ont At* filmAaa k nouvaau da fa9on A obtanir la maillaura iniaga poaaibia. Tha poa oft film Ori( bag tha •lor oth< first •ion oril Tha shal TINI whii IMa^ diff< antii bag! righ raqu mati Thia itam la fllmad at tha reduction ratio chackad balow/ Ca document eat filmA au taux da riduction indiquA ci-daaaoua. 10X 14X 18X 22X 2SX 30X y 12X 16X aox 24X 28X 32X lir* details net du modifiar ger una filmaga Tha copy filmad hara has baan raproducad thanks to tha ganarosity of: National Library off Canada Tha imagat appaaring hara ara tiia bast quality possibia contidaring tha condition and lagibility of tha original copy and in kaaping with tha filming contract spacifications. L'axamplaira ffilmA ffut raproduit grAca A la gAnArosit6 da: BibliothAqua nationala du Canada Laa imagas suivantaa ont At* raproduitas avac ia plus grand soin, compta tanu da la condition at da la nattatA da l'axamplaira ffilmA. at 9n confformitA avac las condition* du contrat da ffilmaga. Original copiaa in printad papar covara ara filmad baginning with tha front covar and anding on tha last paga with a printad or iliustratad impras- sion. or tha back covar whan appropriata. All othar original copias ara ffilmad baginning on tha ffirst paga with a printad or iliustratad impras- sion, and anding on tha laat paga with a printad or iliustratad imprassion. Aaa Las axamplairas originaux dont la couvarture an papiar ast imprimAa sont ffilmAs en commandant par la pramiar plat at an tarminant soit par la darnlAra paga qui comporta una amprainta d'imprassion ou d'illustration, soit par la sacond plat, salon la cas. Tous las autras axamplairas originaux sont filmAs an commandant par la pramiAra paga qui comporta una amprainta d'imprassion ou d'illustration at en tarminant pat- la darnlAre page qui comporte une talla ampreinte. The last recorded frame on each microfiche shall contain the symbol ^^ (meaning "CON- TINUED "), or tha symbol y (meaning "END '), whichever applies. Un des symboles suivants apparattra sur la darnlAre image de cheque microfiche, selon le cas: la symbole — »• signiffie "A SUIVRE". le symbols ▼ signiffie "FIN". re Maps, plates, charts, etc.. may be filmed at diffferent reduction ratios. Those too large to be entirely included in one exposure ara ffilmad beginning in the upper lefft hand corner, lefft to right and top to bottom, as many fframea as required. The ffollowing diagrams illustrate the method: Les cartes, planches, tableaux, etc.. peuvent Atre ffilmAs A des taux de rAduction diffffArents. Lorsque le document est trop grand pour Atre reproduit en un seul clichA. 11 est ffilmA A partir de I'angle supArieur gauche, de gauche A droite. et de haut an bas. en prenant le nombre d'images nAcessaire. Les diagrammes suivants illustrent la mAthode. f errata d to It la pelure, pon A 1 2 3 32X 1 2 3 4 5 6 E N A N Q^ U I R INTO THE EXTENT OF THE POWER OF JURIES, O N TRIALS OF INDICTMENTS OR INFORMATIONS, FOR PUBLISHING SEDITIOUS, OR OTHER CRIMINAL WRITINGS, OR LIBELS, EXTRACTED FROM A MISCELLANEOUS COLLECTION OF PAPERS THAT WERE PUBLISHED IN J776, INTITULED, ADDITIONJL PJPERS CONCERNING THE PROVINCE OF QUEBEC. TO WHICH IS AOBSD, AN ENCLUIRV I M T O THE maion fenfe [ 3 I (tt\(Q muft teach us, that, if they mean to do juilice between the parties, they ought, with refpedl to fuch points, (in which they muft know ihemfelvcs to be unfkilled) to be guided by the opinion of the judge, or, if they think t!iat may be partial or infufficient, to find a fpecial verdi^, to the end that the law may be rightly determined, upon full argument by the judijes of the court in which the action was A brought, I There is, however, one fubjefl upon which, I imagine, all lovers of public liberty would be inclined to think, that juries ought to have the whole power of determining the matter in conteft. The fubjedt, I mean, is the dodrine of feditious libels, and the criminal profecu- tions carried on againfl the writers and publishers of them. Thefe profecutions iRie attended with fo much danger to that mol valuable privilege of Englifh fubjedts, the Liberty of the Prefsy or the right of animadverting freely, and publickly, (but with a ftrid: adherence to truth,) on the pernicious tendency of publick msafures, that one would wifh them to be intirely under the controul of the people tbem- fehes^ fo as never to be carried on with fuccefs B 2 but i [ 4 1 but when i/je people themfclvcs arc fatlsficd of the faUehood and mifchievous tendency, or, at lead, of tlie mifchievous tendency, of the writ- ings which are the occafion of them. And for this p'lrpofe it woulil be ncceflary, that the whole determination of ihefe profecutions fliould be veiled in the juries, who are a part of the people, and may be fuppofed to entertain the lame fentimcuts with them. For, if the event of thefe profecutions was to depend upon the inclinations of the judges, there would be rc.i- pn to apprehend, that they would meet with lucccfs much oftener than would be coniiftent with that fpirit of free enquiry and examina- tion of the mcalures of government, which is neceffary to the correction of the abufes of power, and tlie prefervation of public liberty. Thofe magi ft rates muft naturally be fuppofed to be, in fjme degree, partial to government in cales of this kind, even from refpedlable motives. Their friendfhip and their gratitude would often contribute to make them fb ; not to mention their felf-intercft and ambition, which would lead them to hope for future fa- vours from the crown. For, who would be the objcd: of the cenfures contained in the writings under profecution ? Probably the king^s miniflcrs of ftate, by whofe favor and pa- tronage jk \ dof r, at ivrit- dfor the lould ►f the n the event n the 3 rc.1- with (iftent mina- ^ich is fes of berty. )pofed ment aable titude )ition, ire fa- ild be 10 the kingis Id pa- ronage [ 5 1 tronage they, perhaps, would have obtained their offices of judges, and might hope to gain ftill higher honours for themCelves, or prefer- ments for their families. In thefc cafes, there- fore, a jury of men of ordinary rank, as, for example, of fubftantial houfc-keepcrs in the city of London, would be much Icfs likely to interpret the intentions of the writers and publishers of fuch writings in a fcvcre manner, and to confider the tendency of them as of dangerous confequence to the public, than a bench of judges would be : and yet, they would be fufficiently intcreftcd in the prefer- vation of the public peace (upon which the continuance of their own liberty, trade, and property, would depend,) to be free from any undue biafs of favour towards thofe perfons, if the writings, they had publifhed, had a real and manifeft tendency to difturb it : and therefore, upon the whole, they would be a fafer and more impartial tribunal for the determination of ihefe matters than the judges. It is reafon- ablc, therefore, that all lovers of public liber- ty (hould wifli, that the whole power of de- termining the merits of profecutions upon thefe fubjeds Ihould be vefted in the juries. But, in order to its being (o, it is by no means neceffary, in my apprchenfion, to depart in any « M ,i ': [ 6 ] « «ny degree from the rules above-mentioned, concerning the diftind^ provijices of judges and juries in i\\c dccilion of law fuits, and the mo- ral obligaiion. undvfr which jurymen have been fuppofed ro lie, to keep llridlly within the bounds of their own province, without ever prefuming to determine any matters of law. ^ All ihefe rules may, as I conceive, be mod inviolably adhered to, and yet juries will re- main in poircflion of the whole of this im- portant power of deciding all the matters irt contcll: upon profecutions for fcditious libels. For in thefc profecutions all the matters in conteft between the crown and the defendant upon an iflue of Not guilty are mere matters of Ja6i^ without any, the leall, mixture of matters of law. This I rtiall now endeavour to prove, by confidering the feveral .nllcgntions which go to the compofiiion of a criminal charge for writing a feditious libel. An indidtment, or information, againft a man for writing a feditious libel, confifls of the tour following allegations, and of nothing mores to wit, firfl, That the defendant wrote the pa- per in queftion, which is always fet forth, word for word, in the indiiflment or informa- tion ; fecondly. That he publifhed it : thirdly, That he published it with a bad intent; and fourlhlv, med, and mo- been 1 the ever flaw. ; moft ill rc- is im- ters irt libels, ters in endiint ters of alters prove* ich go ge for a man of the more; [he pa- forth, Iforma- [hirdly, , and lurihly, I 4 [ 7 ] fimrthly, That the p'.per h:is a tciiJcncy to iliftiirh the public peace. I /peak ot an in- (lidmcnt, or ii.forinjtlon, in wliicli the fedi- tious paper is nut charged to be f:i!ic, but only f.:aiuidous and malicious', and tending tocaufe a breach ot tiic pcaco. For, if tlio charge ot ialfehood is inlertcd in the inform uion, that muft be reckoned as a fifth allegation contained in it. Tins was formerly thought a necediry part of a tiiarge for publilhing a feditious li- bel, but was omitted (for the firft time, as I have heard,) in the information brought by Sir Fletcher Norton in 1 764, againft Mr. Wilkes, for publifhing the 45th number of the paper called the Notth Briton, and has been omitted in moft of tlio informations that have been brought for fuch publications fince that lime. The reafon for omitting it was, to avoid the altercation which it ufed conftanlly to occalion at the bar upon the trial of ihefc informations, and the plaufiblc, if not juft, pretence ii afforded to the defendant's counfel to infift, that the charges contained in them were not proved. For, though this charge of falfchood ufed to be in- fer ted in the information?, no attempts were ever made to fupport it by proof, and thejudges, who tried thcle informations, would neither require the counfel for the crown to prove tha: the writings in qiieftion were falfe, nor even [ 8 ] even permit the counfel for the defendants to bring proof that they were true ; fo that every information, that was brought for a fcditious libel, was defcdtively proved in this article of the fahthood of it. Vet the juries ufed ®ften to find vcrdidls for the crown againft the de- fendants, notwithflanding this defedl in the proof of the charges brought againft them ; and the court of King's-bench ufed, in confe- quence of ihcfe verdids, to pafs judgments, and inflldl punifhments, upon them. This, however, was fometimes complained of as an irregular way of proceeding, that was not con- fident with the rules of law obferved in other cafes, and more efpecially in criminal pro- ceedings, in which, in all other inftances, the greatcit ftridtnefs is required. And it was often made uCc of at che trial, by the defen- dants couhftrl, as an argument to the jury, to p<_^rluadc them not to find the defendant guilty, lince the counfel fur the crown had not made good the whole of the charge againft him, but had failed with rcfpecl to fo material an article as the faifchood of the paper complained of. " For, faid they, if the law be really fo fevere as to confider the publication of a truth as a public crime, and deferving of public pu- nifhment, it muft, at Icaft, be allowed, that it r : '• - n ^ " ^ is ■If idants to »at every fcditious article of ed ©ftcn I the de- l in the t them ; in confe- dgments, 1. This. I of as an J not con- i in other linal pro- ances, the it was le defen- \c jury, to ant guilty, not made him, but an article ilained of. f (o fevere truth as a blic pu- d, that it is I 9 r is a lefs crime than the publication of thtf i.ime things would hi?, if thev were falfp; and therefore, the defendant, who is only proved to have pLibUHic'd the writings in qiiellion with- out anv proof that they are fnll'c, oiif^lit not to be cjnfi>lcred in the i\\mc I'ght, nn i made liable to be punidicd in the Lime nun-ier, as if it had been proved th:u the fa\i writings were falfc, as he will be, if the jury iliould find him guilty upon this information." This argument {which I take to be unanlWerable,) was frequently made ufe of by the counlel for the defendants upon (he trial of thefe in- formations, while the charge of the falfchood of the libel, or writing, complained of, ufed to be inferted in them : and it, probably, might fometimes prevail with the juries, (notwith- ftanding the dirediions of the judges to the contrary,) to find the defendants not guilty. Sir Fletcher Norton, therefore, feeing that the infertion of this charge of faUehood in thefe informations tended only to hamper the pro- f the officers of the crown ai jgs n ft the publiHicrs of fcditious libels, relolvcd to leave it out for the future in all the informa- tions of that kind of which he was to have the management ; in doing which he thought himfclt furhcicntly warranted by the preceding C Ce clarai ions [ 'O ] declarations of the judges on various occafivon?, that this charge of falfehood was an iiimate^ rial part of every information for a fcditioui libel, which the profecutor was not bound to prove, nor the defendant permitted to difprove. And it is faid, that Sir Fletcher's fucceffors in office have followed his example. And thus, ever fmce that profecution of Mr. Wilkes for the publication of the famous number 45 of the North-Briton, thofe informations have been drawn up without alledging, that the writings complained of in them were falfc; and the profecutions of thefe offences have gone on, in this refpc II 1 ! *, ! [ '3 ] per judges of all that external evidence that confifts in the teftinnony of witncflcs. We muft, therefore, enquire, whether, or no, the inten- tion of a man in publishing a writing, and the tendency of the writing to produce a par- ticular ill effedi, are matters which are capable of being proved, or difapproved, by the tefti- mony of witncflcs. Now it appears to me, that they moft manifeftly are capable of being fo proved, or difapproved. For, firft, as to the intention. Who can doubt but that proof may be given by witnefles, that the paper was pubiifhed with an innocent, or even a good intent, or, in fome cafes, with an abfence of the bad intent alledged in the information, and without which there can be no guilt in the publifher ? This may be eafily ilia ft rated by the following examples. It is allowed upon thefe profecutions, that the delivery of a (ingle paper from one perfon to another (whether the paper be in print, or manu(cript,) is an a f vWfc' t 24 ] writer of :t for writing and publishing a fe- ditious libel, it would in luch a cafe be lawful for the defendant to call witnefles to prove that the great man fpoken of in the paper was fo eminently free from the vices imputed to him in it, that it could only be underftood, by all perfons who had any knowledge of his cha- rader, as a panegyric upon him conveyed un- ' der the form of an invedive, and that it had been generally fo underftood by all the worlds . and confequently could have no tendency to excite thofe difturbances which a belief of his having thofe vices would probably occaiion. And if the jury believed thefe witneiTes, and confequently were of opinion that the paper had not the pernicious tendency afcribed to it in the inforn"-ation, fand which from the mere perulal of it, without a knowledge of the cha- radler of the perfon fpoken of in it, one would be apt to think belonged to it,) it would be their duty*^o find the defendant Not guilty. In the next place I will fuppofe the oppolite cafe to the former, to wit, that of a fevere in- vedlive againft a great man, conveyed under the form of a panegyric, commending him for virtues which he was generally thought to want, without any blanks, initial letters, or ' feigned names. In fuch a cafe it would be ^ , lawful .) '%i i [ 2J ] lawful for the profeculor to produce witneflcs to prove, that the writer of the paper was a bitter enemy of the great man thus ironically commended in it j— that they had often heard him express a very bad opinion of him, and deny him the virtues afcribed to him in the paper, and afcribe to him the oppofitc vices ;— that they thcmfelves therefore underftood the paper to be meant ironically, and that they had met with fcveral other perfons who had all underftood it in the fame manner ;— — . that not only the writer and the other enemies of the great rnan, but even mod of his friends were of opinion that he was not intitled to the praifes beftowed on him in the papen and that they, therefore, on that account, (as well as on account of the known enmity of the writer againft the great man,) 'believed thofe praifes to be meant ironically, and in- tended to bring him into public odium and contempt j — -and that they adually had pro- duced that efFedt, and raifed a great difguft againft him in the perfons who were moft conncdtfd with him, and whofe chearful obedience, afliftance, and concurrence, were moft neceffary to his difcharging the duties of his great office with fuccefs and advantage to the public. If thefe things were made out to E the [ 26 ] the fatisfadlion of the jury, it would be theif duty to find the writer of the paper guilty of publiihing a leditious libel, notwithdanding the apparent inoffcnfivenefs of the paper, or its want of tendency to produce any ill efFc(5t> fo far a., its tendency could be collected fona the mere perufal of it: fo that in this, as well as in all the former inflances, the tendency of the paper would be afcertained by the tcfti- mony of witneffes, and would confequently be the objedt of the confideration and deter- mination of the jury. We may therefore, I think, fafely conclude that this fourth and lad allegation, contained in an information againd a man for writing and publiQiing a ledirious paper, or libel, to wit, its tendency to didurb the public peace, or to produce .the other bad cffcdis fel forth in the informa- tion, is a proper objedt of the confideration and determination of a jury, or, in the law- ienfe of the phrale, a matter of fadt, as well as the three former allegations, of the writing the paper, the publilhing it, and the intention with which it was pubhLbed. J I have hitherto confidered thofc thing? only ab being matters of fadt,. or objc^s of a jury's confideration. ay [ 27 ] confideratiOD, which are capable of being proved, or difproved, by witncffesj becaufc this is the plaincft and clearcft mark of dif- tindtion between them and matters of law that can, as I apprehend, be given. But I conceive that the province of the jury extends a degree further than this, and that they have a right to make all fuch inferences from fadts as may be made without any fkill or know- ledge of the law, even if no new evidence could be given by witnefTes in fupport of fuch inferences. For fuch inferences from fadts are merely operations of reafon, which is a talent common to all men, to jurymen as well as to judges: and, with refpeft to the meaning of feditious papers, and the inten-^ lions of the publifhers of them, and their ten- dency to produce certain bad efFedls ftated ia an information, it often happens that jurymen are better able to make thefe inferences than judges, even where no evidence fhould be given by witneffes concerning them ; becaufc they have often a more extenfive intercourfc with the reft of mankind, and a greater know- ledge of the bufinefs and converfation of the world, than judges (who are men of retired lives, given up to the ftudy of the law, and the difcharge of the duties of their refpedtable E 2 offices,) [ 28 J offices,) can be fuppofed to have, Thofc in- ferences tlicrefore ought not to be called in-- ferences of law, but inferences of fadt, being a fecondaiy, or fubcrdinate, fpecies of fadts, derived from the more iimple and direct fadls, of which they are the circumftances or pro- perties. For fads may be divided into two clafles, which it may perhaps be of fomc ufe, in confidering this fubjed, to diftingui{h by the names of primary and fecondary JaSls* The former, or primary, fads are thofc plain and fimple fads which are the objeds of the fenfes, and are generally proved by ihe pofitive teflimony of witnejOTes; fuch as, whether fuch a man gave fuch another a blow, or a wound vrith a fword, or fired a piAol at him, or whether fuch an one delivered a particular paper to fuch another; though even thefe may fometimes be colleded by inference from cir- cumftances. Thefe things are fo plainly matters of fad, that no fophiftry in the world can make them appear to any body to be mat- ters of law. But the latter, or fecondary^ fads are fads of a more abftrad, or remote kind, and may often bt colleded from the former by mere reafoning, withou* ehehelp of external tcftimonyw Such is the intention . rid I *9 r of a man in breaking open and entering a houfe by night; which, if it be to commit a felony, makes the breaking and entering the houfe amount to the crime of burglary, which is puniihed with death ; bur, if it be to com- mit a trefspafs only, (as, for inflance, to beat, or to frighten, fomebody in the houfe,) makes it only a mifdemeanour, which is puniOiable by fine and imprifonment. And fuch is the intention of a writer in writing and publifhing a paper againft the meafures of government- which, if it be to raife a fpirit of difcontent in the people againft their governors, is crimi- nal, and makes the writer and publiftier liable to punidiment ; but, if the paper is intended only as a petition to the king, or any inferior magiftrate, praying him to deiift from a mea- fure by which the petitioner thinks himfelf aggrieved, and it is delivered only to the per- fon from whom the redrefs is prayed, it is an innocent intention, and cannot make the adt of publiftiing the paper the objcd of puni(h- ment. In all thefe cafes the intention of the party accufed is a matter of fadt, as well as the giving a blow, or a wound with a fword, or firing the piftol, or breaking and entering the houfe, and the writing and publifliing the paper, though it is of a lefs grofs and obvious nature f 30* 1 nature than thofe other fadts, and lefs capable* of being proved by the pofitive teftimony of witnefies, and fometimes can only be col-p ledted from thnfc other fadts by reafoning upon them} I H^y, JcmetimeSy becaufe for th® nioft part, (as we have (een above,) it will alfo admit of confirmation and explanation by the teftimony of witneflef. Thefe fadls there- fore, from their being concomitant circum^ ftances of the former, or more fimple, fadts, may with fome propriety be called Jecondary fadl?, if the former be called primary ones. And this diftindtion may perhaps be ufeful to prevent thefe fecondary fidts from being con- founded with matters of law, with which they agree only in this point, to wit, that fome degree of reafoning is to be ufrd in difcufling and inveftigating them both. But the differ-* ence between the cafes is this. The reafon- ing to be ufcd in the inveftigation of mattcra of law is grounded on the knowledge of the law, and can only be ufed by perfons who are poflefTed of that knowledge ; whereas, in the cafe of thefe fecondary fadls, the reafoning to be ufed is grounded on common fenfe and a knowledge of the world, and the prefent tran- fadlions of it, and the ftories that are told of perfons in adiive life and in offices of great ' -^ rani^ > » f c f 31 1 rank and power; all which (as we before oblcrved,) are things thai are cften better known to jurymen than to judgts. And therefore we may conclude, that if no evi* dence could be produced by witnefTes to con* firm or dilprove thefe fecondary fadls, yet the jury would (till have a right to judge of them, and to infer them from the primary fadls by the exercile of their own rcafon. But it al- moft always (or, perhaps, abfolutdy always) happens that thefe fecondary fadls, though they may in fome degree be inferred from the primary fadts by mere reafoning, yet may be alfo confirmed, or controuled and difproved by the pofitive teftimony of witnefles ; which diftingu](hes them dill more clearly from matters of law, (in determining which the teftimony of witnefles is wholly inadmiflible,) and proves them beyond a doubt to be matters of fa(5t, in the law fenfe of the phrafe, or objeds of the confideration and determination of a jury, according to the fundamental po. iition above laid down, to wit, that fuch matters are proper objeds of the confideration and determination of a jury as are capable of being proved, or difproved, by the evidence of witnefl*es. I conclude, therefore, that both the intention of tlie writer and publiflier of a paper t 32 I paper charged to be a fcditious libel, and thg tendency of the paper to difturb the public peace, or produce the other mifchicvoos effeds fet forth in the informatioo (which arc fecondary fadts in the fcnfe herein before defined,) are proper objects for the confidera- lioB and determination of a jury, or, in the ufual law-phrafe, matters of fadV, as well as the actual writing and publication of it. ' . ' If this conclufion is jud, the whok budnefs of a jury, upon the trial of an information for writing and publi(hing a fcditious libel, may be faid in few words to be this ; ** To enquire into the condudt of the perfbn charged with having written and pribliOied the paper in queftion, by the means of the evidence of witncflcs and of luch fair inferences as they, the jury, by their natural reafbn and good fcnfe, are able to derive from the faid evi- idence; and, having thus difcovered what the conduct of the faid defendant, with refpe6b to the faid charge, has been, to compare it with the condud: imputed to him in the in- formation; and, if they find it to be the fame with the condudt imputed to him in the information in all points, to ' affirm the in- formation, by finding the defendant guilty of . the of [he . f il ] the charge in the iiitnncr and form foe for«<| in the ioformotion, (for thofis are the woru« n^d in a verdi^ of qonvidion;) and, if they Bad his <:ondudt, as proved by the evidence, to fall (hort of the conduift irnpuct-d to htm in the information in any of the four points above-mentioned, to deny the information, by finding the defendant N^t ,guii/y of the charge in the manner and form let forth in the information, which are the words ufed Mn> a verdi^ of acquittal." This feems to me Id be an accwfate and plain defcription of the do^ of a jury on the trial of one of thejCb inlbrfnacions, f > IwfibU w.; ;i'» it. 1 1^ iv«- •••«» #1 ei'ii . F legal [ 34 ] legal reafonings at the bar, that the writing tnd publifhing the paper in queftion, though it was done deliberately, and has the tendency afcribed to it in the information, yet is not an offence of fuch great and public confe- quence as to be an objedt of legal punifh- menc, it will be the duty of the court to forbear giving judgment againft the defen- dant, and to difmifs him with impunity, not« with (landing the verdidt of convi^ion found again (I him by the jury. But this, I appre^ hend, is a matter which the judges only have a right to determine, either upon a motion made before them on the behalf of the defendant in arred of judgment, or of their own accord, without fuch a motion, if they of tberr own accord come to be of opinion that the h&t charged in the information do not conftitute 9i legal offence. Fur this is really and truly w matter of law, and not a fecondary fadt, or iflference from other fafts, nor a matter to which the teflimony of witneffes is in any degree applicable, (like the intention of the writer and the tendency of the paper, and other fuch fecondary fadts as have been above mentioned,) and therefore is not sl fit Qbjed of the confideration and determination of a jury. An Inflance or two will make Ml^l fV 4 this ■■ »• X " [ 35 ] this matter very plain. It is certainly a public and punifhable offence to publidi a paper tending to difgrace and vilify the king upon the throne, and alienate the afFc^ions of his fubjecis from his perfon and governmenty more efpecially if the imputations thrown out againft him are falfe. This was the offence committed by Dodtor Shebbeare in the reign of our late gracious Sovereign, George 11. for which, in the opinion of moft people, he was defervedly punifhed. But, if the fame abufe were now to be re-publifhed againft the fame good monarch, it may be doubted whether the publifher of it would be an ob* jedl of legal punifhment, though he would juilly incur the cenfure, and excite the indig- nation, of all good men that remembered the juil and prudent government, and refpeAed the memory of our late fovereign. For, as it can no longer tend to produce the fame bad •ef^dts as formerly, the monarch, who was the object of it, being no longer among the living, it feems unrealonable to fuppofe that At could be the objedt of that legal cenfure which was grounded on its tendency to pro- .duce thofe bad effedls. Yet it might be faid, on the other hand, that it flill had a tendency to produce Jbme bad effects, though not the fame as before, nor of fo < great importance; F 2 and i( [ »« 1 ftnd that, o^ account Gf ks faid tendency to pro«4 duce thefe lefler bad effcdtsi it ought ftill to be the bbjcdl offome, though a kffer, legal puni(hment. And to this it might be replied on ilie behalf of the re-publiflier, that every tidi that in a fmall degree has a tendency to produce feme ill efftdl, ought not to be the objedt of a legal punilhrnenr, and is not lo by the law of England • — that, for example, the mod fcurrilous words fpoken, (but. not writ- ten,) even of a peiipn How alive, are not the febje^t of fueh puniftiment, but only of • civil adlion; and many fcurrilous words arc xtbX even the objedt of a civil aftiori> but only bf ft proceeding in the ecclefiaflical court olF the bifhop of the diocefe, carried on fro fdliite anima, it corre&ione morunii-^xhiX only thOfe actions are the ob)e<5t& of legal puni^* ment in the temporal courts which have t tendency to produce fome very pernicioss public Confequences, and diAurb the tdniK nlftration of the government ,$ and that this was not likely to be the ^flFed of a republic Cation of the abufe upon our deceafcd fover*» Vigo I and tonfequently that fuch a repubi?* Oration was not the objedl of legal punishment. Now in all this argument tiic teflimony of witnefles is evidehtly quite iftadmiffiblc ( nor can mere reaibn» Or common ferife, dcter^ ?>' :« mine lis ft* in r 17 3 wtAm on ^leh fide the truth Ikis; hut it li plain that this can only he deCermined by tht jxinciples of the crim'tnal law of England, and the decifions of former judg«:s, upon ibiemn arguments, in cafes of the fame kind, or that are nearly (imilar to it, if fuch are to he found : and, therefore, it is truly a matter of law, and muil be determined by the judges only. But this does not at all in- terfere with the fight that has been above aicribed to the jury, of determining the truth of all the charges contained in the informa* tidn, Of declaring whether, or no, the con* 4u£t of the defendant, as proved by the wit^ DeiTes, agrees, or is commenfurate, with the conduit imputed to him in the information^ with refpe^ to all the allegations of which the infiofftiaMon is compofed. . ,. , I have flow goiie through all I had to ofler jft/tl^e way pf reafon and argument, con* Pining the extent of the province of the jury in ttie ttial of an information for publKbing a feditious libel, I am fenfible, I have ufed a great number of words on this occafion, and «vej» (bme repetitions, which I knew not well how 10 avoid, and which, I therefore hope* the reader will excufe ; more efpecially at the, region of my treating this matter fo fully . '♦U was I C 38 ] was that he might clearly fee the grounde upon which I have prefumed to differ in opr- ntoD from thofe learned and refpeifhble per- fons who have declared, that the intention of the publifher of a feditious paper is a matter of law, which the jury have no right to confider. The great refpcdt due to thofe eminent perfons made me at firft aimed afraid to differ from them, and excited me to exa- mine the fubjedt with as much care and at- tention as I was capable of beftowing on it ; in confequence of which, I became perfectly convinced, that their opinion was not well- grounded. And the fame refped to their authority made me afterwards cautious of ex- prcffing the opinion I had formed in oppo- sition to that which they had declared, with- out, at the fime tln>e, fctting forth, in the fulled manner I could, the reafons upon which I had prclumed to differ from, them, and adopt the other opinion. And now, that I have ventured to date and maintain that other opinion, I fliall (from the fame motive of refpcdl to thofe great perfons) en- deavour to confirm and fupport it by the authority of other great perfons who formerly held the fame hjh offices of judicature with themfelves, oppofing judge to judge, and chief judice to chief judice, in at lead equal num- beri ■l "<' ief t 39 ] bers, and marfhalling on my fide of the ar- gument,' *' ^v r 'ffiij'h, fi>^HU'^i,,:y »/:; ,•;>:•-•. • * r? /*tfr^5 aquilast et pila minantia pilis ; * it fed the weight of thcfe great modern autho- rities (hould be thought to over-bear the ar- guments, which, in the courre of this en- quiry, have been deduced from reafon only, in favour of what I take to be the true opi^^ nion upon the fubje^j # jr'rf^.;\s-U\^uii *irri i\i ** ' In the famous trial of the feven bi(hop9, who were profecuted in the laft year of the reign of king James II. by an information in the court of King*s-bench for publishing a fclitious libel, Sir Robert Sawyer, (who had been attorney-gcncral,) Mr. Finqh, and Mr. Somers, (who was afterwards Lord-chan- cellor,) were of counfel for the biihops, and Sir Thomas Poways, (the then attorney-ge- neral,) and Sir William Williams, (the then* folicitor-general,) were of counfel for the Crown, Sir Robert Sawyer contended, " That ** both the fallity of the paper, and that it ** was malicious and feditious, were all mat* ** ters bf fa<5t to be proved j" and made this the firft head of his fpeech to the jury : fo that :rs ( 40 3 that here we fee; that the falfchood of the paper; the malicious intentioii of the v^ritef, and the feditious tendency of the paper, are all afferted by this learned lawyer to be mat- ters of h6t and objeds of the confideration of the jury. His brother-counfel held the fame ian){ti3ge. Mr. Finch exprefled himielf thus : *' If you, gentlemen, (houjd tbiofc V that there is evidence to prove the,deU«' *<.9iery^ by the bifliops, of the paper fet forth. '* in the information, yet, unl^ their pre« ** fenting it to the king in private may be ** fyad to be a tnairdoua and feditious lilel, ^ with an intent to ftir op the people to icM ¥ ditiony and to diminifh thie King's preri»-< *^ igttiire and authority: unlers aU this caa '^ be fooad, there is no man living caa ** find the bi^ps guilty i:pon this inf<>rma^ •-'jtion/' This was afTart^ng, that the /W /ff-. ttMtiott of fliriiag up difcontents tn the ipindsv of ihe poopk afsinft die King, was sao cfleiir tral pactof tbe4:harge, and one that the jui^^ ought to lake into their confideratiton, and not: leave to the judges as sl mere bfer^nce of faiw. Mr. Sonoeis fpoke next, and iaid. That *^ the paper could not >poiEbly ftir up icdi^ ^ tioo m the niinds of the people, bccaufe^ vas not at that time univerfally adopted by the judges. His words are as follow: *• Truly, I cannot fee, for my part, any thing ** of (edition, or any other crime, fixed upon •* thefe reverend fathers. For, gentlemen, •' to make it a libel, it muft be falfe, it muft *^ be malicious, and it mud tend to fedition. •' As to the falfehood, I fee nothing that is " offered by the king's counfel, nor any •* thing as to the malice. Now, gentlemen, ** the matter of it is before you ; you are to ** confider of it, and it is worth your confi- " deration, &c." Such were the dirc<5tions of chief Juftice Wright, and Juftice Holloway, and Juilice Powell, at this famous trial : by which we fee, that the intention of the de- fendants in publishing the petition, or paper, and the tendency of the paper to raifc dis- contents in the minds of the King's fubjedts againft his government, were fo far from be- ing confidered by them as mere inferences cf ; G 2 law [ 44 ] law, which they, the judges, only had a right to make, that they were recommended to the confidcration of the jury as the principal ob- jedi^, to which it was neceffary for them to attend. And chief Juftice Holt appears to have been of the fame opinion, when he fummcd up the evidence to the jury upon the trial of the information againft Tutchin, tlie writer and publiflier of certain papers, called The ObJervatorSt in the year 1704. His words, on that occajion, were as follows : ^* Gentlemen of the Jury, this is an infor- ^* mation for publi(hing libels againft the ^* Queen and her government." And then, after ftating the proof of the publication, and reading fome palTages from The Obfervators^ he goes on in this manner: *' So that, now you •« have heard this evidence, you are to con- «< fider whether you are fatisfied that Mr, *< Tutchin is guilty of writing, compoiing, *? and publilhing thefe Libels. They fay they (* are innocent papers, and that nothing is a " Libel but what refledts upon fome parti- " cular perfon. But this is a very ftrange ** do<5trinc, to fay it is not a libel refledting " on government to endeavour to poflefs the " people that the government is male-ad- ^* miniftcr'd by corrupt perfons that are cm- ** ployed i%l - d e 11 i> e g e [ 45 ] «^ ployed in fuch and fuch flations, either in " the navy or army. For it is very neceflfary " for all governments that the people (hould '* have a good opinion of it: and nothing *< can be worfe than to endeavour to procure << any animofities as to the management of it. ** This has been always looked upon as a " crime; and no government can be fafe, " without it be punifhcd. Now, you are to ** conjidery whether thofe words, I have read <* to you, do not tend to beget an ill opinion <* of the adminiftration of the government/' Here we find this able Chief Juftice exprefsly direfting the jury to confider the tendency of the papers in queftion, to wit. Whether they do not tend to beget an ill opinion of the adminiilration of the government? How dif* ferent is this condudt from afferting that this tendency is a mere inference of law, which the judges only have a right to make, with* out any concurrence of the jury? From thefe authorities, together with the reafons above fet forth, I flatter my felf, that the reader will join with me in concluding, that, upon the trial of an information for writing and publifhing a feditiuus paper, the jury have a • determine all th ight particuh the C:harge, the malicious intention of the writer, and [ 46 j iod die tnifchievoos tendenqr of the paper, as wdl as the more fimple iads of ilie writ- ing and publrcation of it, and the ffieanirrg of the blanks and feigned names in k; and chat the only qutflion, whidi the )«%es are to determine, is, whether, if the whole in- ibrmation, wkh all the allegations contained in k, the maiicious intention of the wrker, and the mifchicvous tendency of the paper, he admitted by the defendant, or fomid by lhe}ury, to be true, the coadsd fo dcfcribed and found, is an objedt of legal ceniare. I could wi(h, that even this I^tft particular were alfo to be determined by the jury : but it rather, I mud confefs, appears to me to belong to the province of the judges. H-^ A N I , 1 ■ ' i' M^ E N A N 9^ u y R V j? ' •;" I ft TO TH5 QjJ EtTtOK, WHETHER JURIES ARE. OR ARE NOT. JUDGES OF LAW. AS WELL AS OF FACT- ^ With a particular Reference to the C A S E O F LIBELS. ^x •*.-■■ ••. ' vi : r J '- ,*: ':H ■"'^■.■B ' f : :■: t- 'i ■"•-rt ^.ir-m 49 ] * f • * ' ■ • .f AN' ' EN C^U I R Y, &c. rr^ H E importance and advantages - J?vj ^hich arife to the liberties of the civ fubje(fl, from trials by jury, are fo univer- fally acknowledged, that, to Englijkmen, it may be prefumed, little need be laid upon that head. This great privilege has ever been the pride and the boaft of our ancef- tors J it has excited the higheft applaufe, and been the adm'uation of foreigners 3 and is juftly confidered as the greateft fecurity of our lives and properties, and the beft de- fence againft tyranny and arbitrary power. ■ But this great privilege, though too ftrong to be battered down, may yet be io undermined by fubtle pretences, as to be refi- ll dered, [ so 1 dercd, in many cafes, of very little worth. In particular, fome pofitions have heen laid down by certain Lawyers, with refpedt to the dodlrine of libels, which have the moft fatal afpedt upon the liberty of the prefs ; if they do not tend to a tof law in other matters, what reafon can be aiiigned, why this right fhould be takeii from them in the cafe of libels only ? <* A- << mong other devices (fays another old au- ** thor *) to undermine the rights and powec «« of juries, and render them infignificant, ** there has been an opinion advanced, That «« they are only judges of fadt, and not at " all to confidcr the law, Thus fome ** people argue ; but it is an apparent trap «* at once to perjure innocent juries, and render them fo far from being of good s » . * < jH The following are fome of the arguments made ufe of by Lord Chief Juftice Jeffi^rys, in his charge to the jury, on the trial gf Sir Samuel 6ernardi(^on, in the court of King's Bench, for a midemeanour, in Ja/Jlyy fcandakujly, malidoujly^ zxidfeditioujly writing and y- t 63 ) dlnd publidiing certain letters, again/l the peace of the King, his crown and dignity, (Sc, Thefe letters were never printed j zwd all the publication which was endeavoured to be proved, was, that they were lent to the foft'Office, " It hath been objedtcd, (faid Jcf- •* feryh) that inafmuch as the uords fajjly^ *^feditiouJly^ malicioufts ^ fachouj!/, and the like «< words, arc in 'hz inJonnavion, they would ** have you believe, that tiiere l^lng no «« evidence of a??y fuch tlnr-g ns fath'on, ** malice, and Jidihon^ or lb at tlie mari &.a «* it maliciouliy, and ad'/fcdly, ;M)d jc ihi- " ouOy, (which are tht woj Js \i:\ ;hc preci?- ** fcs, as I may call them, or ihe preanrthlc " of the information) therefore thty mutl *' be acquitted of that part. Now -as ta ** that, I told them then, and le'I you now, ** genilertien, that no man living can d:lco- «* ver the maliciour^ evil defigns nhi inten- ** tions of any other man, fo as to give evi- " dence of then:> but by their words and *f a(ftions. Mo man cau prove what I intend ** but by ny woids and anions. Therefore «* if one doth compafs and imagine th6 « death of the king, that, by our law, i$ <» High-treafon ; but whether or no he be v.. ' have been delivered in later times from the fame bench « But every man mud fee the fallacy of them. In the cafe JefFerys mentions, of compaffing and imagining the death of the king, there mud be a proof of fome overt-adt, or words, or writing, to evidence fuch a treafonable de- iign. In the cafe of murder, the proof of the ad: itfelf is a fufHcient evidence of guilt} becaufe to kill any man, unlefs it be by accident, or in felf-defence, is an illegal * See the trial of Sir Samael Bernardiffon, publifhed in 1684, by the authority of JefFerys himfelf. K and { 66 ] and wicked acft. But the cafe of libels is cf- fentially different. If, in a trial for a libel, nothing is proved but what is called the fa(5):, namely, the writing, printing, or publifhing of a book or paper, there is no guilt ©f any kind proved j bccaufe thefe things are, in themfelves, innocent and indifferent adltons. There muft, therefore, in any book or paper, which is ftiled a malicious or feditioas libel, be fome evidence of malice or fedition laid before the jury in fuch book or paper, other- wife the faSt itfelf is not proved to them ; for proving iimply, that a man has publi(hed a book or paper, and proving tliat he has pubMflied a fedittotis or maliciom Hbelt are two diftindt things. As writing, print- ing, and publifhing books or papers are, in themfelves, innocent and lawful actions; if it be not proved, that fuch baoks or papers are malicious ov /edit ions ^ there is no evidence of any guilt at all. Nor ought it to fatisfy a jury, that the judge tells them, that any book or paper is 2i /editions or malicious libel ; they ought to be convinced thentfelves that it is fo, or they cannot honeftly and con- fcientioufly pronounce any man guilty, whom t 67 ] whom they are appointed to try for fuch an offence. r\,. y\ We have one late inftance, and that a very noble one, of an Engli(h jury's afTert- ing this their right, to determine the matter of /aw, as well as the nfiatter of J'a^, In 1752, Mr. William Owen, bookfeller, was tried, in the court of King's Beoch, before Lord Chief Juftice Lee, for publifliing a pamphlet, intituled, T&e Cafe of Alexander Murray^ Efl\ in an appeal to the people of Great Britain* This piece had been voted by the Houfe of Commons to he an impu^ dent^ malicious, jcandakus and fedltious li- bel ; and the Houfe had thereupon addreffed the King to profccute the author, printer, and publi(her thereof; and the author hav- ing left the kingdom, the profecution fell upon the bookfeller. The fa^ of the pub- lication was, in the courfe of the trial, very clearly proved ; and the judge, in fum- ming up the evidence, gave it as his opi- nion, that the jury ought to find the defen- dant guilty } for he thought the publication was fully proved 5 and if fo, they could not avoid bringing the defendant in guilty. But K 2 ^ the 1^68 ] the jury, thinking they had a right to de- termine the matter of law^ as well as the matter oi faB^ and being determined to aflert that right, did, notwithftanding the opinion of the judge, and the vote of the Houfs of Commons, acquit the bookfeller, by bringing him ID, Not guilty. .*x t^r /} y Nothing can be more certain, than that a cudom of leaving the determination of what books or pamphlets arc or are not libels entirely to the judge, muft have the moft fatal tendency with refpedt to the li» berty of the prel's. Should, in any future period, the people of England be governed by a corrupt, opprcffive, and infamous mi- niftry ; which, however far it may be from being the cafe at prefent, it is certainly a pof- iible and a fuppofeable cafe ; and any honed Englifhman (hould have courage and pa- triotifm enough to expofe the bad meafures of fuch a miniftry, and to guard his coun- trymen againft their defigns ; any perform- ance of this tendency, though written with the moft upright and patriotic intentions, ii would, by fuch a miniftry, be mod cer- tainly deemed zfeditious HMi and it is no great t 69 1 great improbability to fuppofe, that they might, in fuch a cafe, (hould a profecution be commenced, get fome juftice of the Court of King's Bench, to pronounce that it was fo. There have been formerly judge?, who were at the beck of the court, and there may be again. If then the jury are not to judge of the law, as well as of the fad:, but to follow implicitly the judges opinions j they would have nothing to do in fuch a cafe, but to find the author of any fuch produc- tion guilty. And thus a man would ht legally punidied for an adtion as a crime, for which he would dcferve the efteem, and the thanks of all his countrymen. -^ n i^ ,v r^ ; ct:fr hir«) ,*^t.« • '^t%r\ We have a remarkable inftance of this fort in the reign of James the Second. James hav- ing made large rtrides towards the introdudtion of popery and arbitrary power, and having affembled an army of fifteen thoufmd men upon Hounflow-heath, in a time of pro- found peace, Mr. Samuel Johnfon, a cler- gyman, publilhed a paper, addrefled to the Proteftant officers and ioldicrs of the army $ in which he reprefented to them the ba(e« ncfs and infamy, of ferving as inftrumenii to X H •\ [ 7° ] to deftfoy the religion and conftitutlon of their country. Whereupon, as this paper was very difagreeable to the court, Mr. John- . ion was profecuted in the court of King's Bench, for writing a fedtthus libel, and his jury thought proper to bring him in guilty j upon which he was fentenced to ftand three times in the pillory, to be whipped from Newgate to Tyburn, and to pay a fine of five hundred marks; which fentence, after be had been folemnly degraded, was accord- ingly executed with great rigour. . ' '^ " j : It is obvious, that if the pofiiion be ad- mitted, that judges only are to determine the matter of law in the cafe of libels 5 every man is liable to profecution, and to puniihment, for writing, printing, or pub- lishing any book or paper whatever, which any judge of the Court of King's Bench may think proper to deem a libel, by whatever motives he may be adluated. No man could write or publifh any thing of a political kind without manifeft danger, however up- right his intentions might be in fo doing. Minifters of ftate will ever deem all writings, which oppofe their meafures, libellous and ^4 /editions j t 7' 1 fcdiiious ; and the more truth there is in any publications of that fort, the more com* inonly will they be irritated by them. U then the power of pronouncing what are Xu bels, and what are not, reds folely in tlw breafts of the judges, can it be a difHcuU matter for a minifter to puniih any man, who writes with any degree of freedom upon the public meafures? Oris it impoflible to fuppofe^ that a bad minifter may find fome judge of the Court of King's Bench, who may be in- fluenced by the court ? We have had a Jef- ferys prcfidc in that court, and we may have again. And is there any Englirtimnn, who thinks the liberty of the prcfs of the highell national importance, who can think calmly of fuch a power being lodged in fuch hands?. *vr.. -,....,^v, ,y. -.^^^ ■ I.. <. I. ^^ In (horl, the moft innocent book or pa- pel whatever, may be deemed a libcJ. Bax* |er*6 Pharaphrafe on the New Teftament was deerned, in the Court of King's Bench, a feditious libel ; and the author was puniflied as ^ feditious libelUr. No impartial man, who ever read the Crijis of Sir Richard Steele, can ever think it confident with anyjuft pr^ten* . , fions [ 72 ] iions to the freedom of the prefs, that fuch • performance (hould be deemed punifhable ; tnd yet the Crifis was voted a libel, and the ftiithor expelled the Houfe of Commons for writing it. How ridiculous is it to pretend, thac the people of England have the liberty of the prefs, if it be admitted, that the judges can pronounce any book a libel that |hcy think proper ? Muft not every intelli- gent foreigner laugh at fuch a pretcnfion ? It is true, authors and bookfelkrs may, not-^ withftanding, write and publifh what they pleafe; but if this principle be admitted, they muft always do it at tbeir periL,^^,^,y,,> , If then this be the certain confequence of admitting this proportion, That juries are only judges of matters o^fa£i and not of the matter oi law^ as it mod evidently appears to be, muft not every friend to li- berty be alarmed at fo dangerous a pofttion ? and more efpecially when it is advanced from our benches of juftice, and by thofer v^hofe eloquence and abilities render them the more capable of maintaining a falfe hypothelis ? But as it appears manifeftly to be inconftftient with the original deflgn and , . ,. in [ 73 1 inftitution of juries, to fuppble (hat they have not a right to judge of Law, as well'*' as Fa^ i as it appears to have been the opi- " riion of fome of the bed and ?blefl lawyers, ^ that they have that right ; as it is notorious, that, in many cafds, fuch as in trials for aiur- der, &c, juries do conftantly determine the law as well as the fa6lj as it is certain,' that they have adlually exerted this right in the cafd of libds, and other fimilar cafes, when they have had fpirit and honefly enough to do their duty ; and as the leaving the determination of the matter of law, to the judges only, is manifeftly attended with confequences To fatal to the liberty of the prefs ; furely a right of fuch iipportance . ought nbt to be given up upon the mere diSium of any lawyer, how great, how emi- nent, how powerful foever. »!.• f^ \» ^r' It is eafy to conceive why fome judges may have been willing to advance this pod- tion, becaufe it tends to encreafe their power J and may enable them the better, on. many occafions to carry a favourite point. But the bare aflertion of any judge, any more than of an inferior lawyer, does not L make J: i-.l' [ 74 ] make kw^ And certainly the mere opinions and alTcrcions of many lawyers, if many could be produced, ought not to balance again fl the confequences, which feem ps^tu- rally to refult from admiltiog the dodlrinc which has here been controverted j cfpccial- ly if thofe opinions do not appear to be really founded in law ; but to be contrary t6 the fpirlc of it, and to thofe principles of right reafon, upon which all law is, or ought tube, founded. _. \] KiJiVfr * Juries have the more reafon to be upon their guard in cafes of this nature, againfl any incroachments on their rights, fincc the cuftom of profeculions, in the Court of King's Bench, by infortnations only, in cri* minal cafes, has unhappily anfen to fuch a height ; by which means the fubjedt is drawn into hazard of liberty and eftate, with- out prefentment or indidtment of a Grand- jury ; and is thereby deprived of that great and good outguard of his liberty and property, the inqueft by oath ( f twelve men, before he (hould be brought to trial. If the principles which have been ad- vanced in this little piece are jud -, and if the v^ . . confe- s [ 75 1 copfequences which have been pointed out, do, in reality, naturally refult from the doc- trine which hath been here oppofed ; every uncorrupted Engli(hman, every friend to freedom, of whatever party, muft be alarmed at the propagation of it ; and be heartily and warmly difpofed to oppofe whatever hath a tendency fo fatal to the public liberty. . f I • I ■ '■'■: ;^^;,. \ . FINIS. ■]• '.l:P. /t '•.■l-. r "-'"r , :/;! *; fitr^Jl v : Mjjfn, , ■/i. iV.Ai- :: * JLH) Yd V hBfV OJ JdlfUCi^"' ' )U'Vh ?y\qh i.i