UNIVERSITY OF CALIFORNIA AT LOS ANGELES THE WHOLE PROCEEDINGS ON THE TRIAL OF AN INFORMATION EXHIBITED EX OFFICIO, BY THE KING'S ATTORNEY GENERAL, AGAINST JOHN STOCKDALEj FOR. A LIBEL ON THE HOUSE OF COMMONS, TRIED IN THE COURT OF KING's-BENCH WEST- MINSTER, ON WEDNESDAY, THE NINTH OF DECEMBER, 1789, BEFORE THE RIGHT HON. LLOYD LORD KENYON, CHIEF JUSTICE OF ENGLAND. TAKEN IN SHORT HAND BY JOSEPH GURNEY. TO WHICH IS SUBJOINED, AN ARGUMENT IN SUPPORT OF THE RIGHTS OF JURIES. LONDON: PRINTED FOR JOHN STOCKDALE, OPPOSSTE BURLISGTOX- HOUSE, PICCADILLY. M,DCC,XC. [Entered at Stationers- Hall.] CONTENTS. i REFACE ,. v Information ---.....-. t Opening - -. w ^.-.. jp Mr. Erflcine's Speech --^p...- 31 Attorney General's Reply ,- *...,,... pg Summing Up - .---.--. uj Argument in Support of the Right of Juries - * 121 A 2 PREFACE. 34771 PREFACE. nr^ H E Pamphlet which gave rife to the following Trial, was written by the Reverend Mr. Logan, fome time one of the V minifters of Leith, near Edinburgh; "A gen- tleman formed to be the ornament and in- ftrudor of the age in which he lived : All his writings are diftinguifhed by the fagacity of their reafonings, the brilliancy of their imaginations, and the depth of their phi- lofophical principles. Though cut off in the flower of his age, while the profecution A 3 againft VI PREFACE, againft his publifher was depending, he left behind him feveral refpe&able produc- tions, and particularly Elements of Lectures upon the Philofophy of Ancient Hiftory ; which, though imperfect, and unrmifhed' will afford to the difcerning, fufficient reafon to regret that his talents did not remain to be matured by age, and expanded by the foftering breath of public applaufe." Such is the character, given of Mr. Logan in the laft New Annual Regifter ; but as his Review of the Charges againft Mr. Haftings has made fo much noife in the world, it may not be uninterefting to ftate by what means, he became fo intimately acquainted, with the politics of India. For fome time previous to his deceafe, i Mr. Logan was the principal author of ; that part of the Englifh Review, which ; gives the general ftate of foreign and dome- tic "PREFACE. \n tic politics. The enquiries in the Houfe of Commons, which led to the impeachment of Mr. Haftings, formed very naturally the moft material part of that Review for a confiderable time ; and his" Strictures upon the arguments, and the decifion on the Benares and the Begum charges, are written with great force and elegance; and con- tain reflections infinitely more pointed, than any of thofe which Mr. Fox objected to in his pamphlet. Having qualified himfelf by the infor- mation that he had acquired, from intenfe application, to give to the world what he conceived to be a fair and impartial ac- count of the adminiftration of Mr. Haftings, he fat down voluntarily, without a wifh or profpect of perfonal advantage, to examine thofe articles which had been prefented to the Houfe of Commons by the Managers, then a Committee of Secrefy, and which now form the Vlll PREFACE. i the articles before the Lords. When he had compleated his pamphlet, he fubmitted it in manufcript to the perufal of a gentleman, who is intimately connected with Mr. Haf- tings. That gentleman was certainly very ill qualified to advife him, as a lawyer; it never having entered into his imagination, that after the torrent of abufe that had been poured out upon Mr, Haftings, for years, any thing faid in reply could be deemed libellous, and therefore he merely examined whether Mr. Logan was corredt in his ftatement of facls, and communicated to him every particular relative to the laft thirteen articles. Not fatisfied with this communication, Mr. Logan examined the votes and the fpeeches, as printed and cir- culated throughout Great Britain. After an accurate inveftigation, he thought himfelf juftified in inferting in his pamphlet, what a member had faid in the Houfe, that the Commons PREFACE. IX Commons had voted thirteen out of twenty articles, without reading them. The hookfeller to whom Mr. Logan ori- ginally prefented his pamphlet, offered a fum for it, which he conceived fo inadequate to its importance, that he carried it to Mr. Stockdale, to whom he gave it ; taking for himfelf a few copies only, which were fent in his name to men of the firft eminence in letters, both in London and Edinburgh. After it had been fome time in circulation, and read with great avidity, it was publicly \ complained of by Mr. Fox. That gentleman quoted what he conceived to be th.e libellous paiTages. The following day he moved an addrefs to his Majefty, to dired his Attorney General to profecute the authors and publifh- crs, and the motion was carried ncmlne con- tradtcentc ; but owing to the ficknefs of the principal witnefs, the trial was deferred for^ nearly two years. This profecution which has X PREFACE. has been attended with a very heavy ex- pence to Mr. Stockdale, and has beea nearly two years depending, hath excite4 univerfal attention. The acknowledged accuracy of Mr. Gur- ney, is too well known to require any par- ticular praife on this occafion ; but it never was more remarkable than in the prefent in- ftance; yet the eloquent and excellent fpeech of Mr. Erfkine, will appear to great difadvantage to thofe who had the good for- tune to hear it, fo much, even the beft fpeeches depend upon the power of delivery. It was y fpoke in as crowded a Court, as ever ap- peared in the King's-Bench. The exer- tions of that gentleman in fupport of his clients are too well known, to acquire new force from any thing that can be faid of him here ; but on no occafion, and at no period, did he difplay thofe Wonderful abili- ties that he poflefles in a higher degree, and Mr. Erfkine will be quoted as the fteady friend, PREFACE, XI friend, and fupporter of the Conftitutional Rights of the people of Great-Britain, as long as the facred flame of Liberty {hall animate the breaft of an Englimman, The refult of this Trial proves how dan- gerous to public liberty it would be, were any body of men, parties and judges in their own caufe. No good fubjed will call into queftion unneceflarily, any of the privileges claimed by the Houfe of Commons ; but if in the inftance before us, the Houfe, con- fulting former precedents, had taken upon jtfelf to ftate the crime, and to pronounce judgment, a Britifh fubject might have been feized and imprifoned fome months, probably to the ruin of himfelf and his family, with- out the poffibility of reparation. It may therefore with the greateft truth be obferved > that by the exertions of Mr. Erlkine, and by the decifion on this profecution, the Freedom of the Prefs, and the Liberty of the Subject, are fully fecured, January i$th, 1790. ERRATA, Page 38 Line 19, for conteft, read context. ...... 4.9 ig, for Loggaa, read Logan. 5 o 6, for policy s, read |>oliciee. 5 6 for lupport, read fuppofed. 6 5 12, and 17, for Lord Cornwallis, Sir J. Macpherfon. .. . j j 5 1. 1 , for bins, read bias. THE TRIAL O F JOHN STOCKDALE THE INFORMATION. Of EASTER TERM, in the Twenty-eighth Tear of the Reign of King GEORGE the Third. Middlefex,! T3 E it remembered, That Richard to wit. 5 JL) Pepper Arden, Efquire, Attor- ney General of our prefent Sovereign Lord the King, who for our prefent Sovereign Lord the King in this behalf profecuteth, in his own proper perfon comes here into the Court of our faid Lord the King, before the King himfelf, at Weftminfter, on Wednefday next after fifteen days from the feaft day of Eafter in this fame term, and for our faid Lord the King giveth the Court here to B underftand underftand and be informed, that before the printing and publifhing of the feveral falfe, fcandalous, infamous, wicked, malicious, and fedltious libels, herein after mentioned, the Commons of Great Britain in Parliament aflembled, had, at the bar of the Houfe of Lords, impeached Warren Haftings, Efquire, late Governor General of Bengal, of high crimes and mifdemeanors, and had there exhibited divers articles of impeachment of high crimes and mif- demeanors againft the faid Warren Haftings, to wit, at Weftminfter aforefaid, in the county of Middlefex aforefaid ; yet John Stockdale, late of the parifh of St. James's, Weftminfter, in the county of Middlefex, Bookfeller, well knowing the premifes, but being a wicked, feditious, and ill-difpofed perfon,and having no regard for the laws of this realm, or for the public peace and tranquillity of this kingdom, and moft unlawfully, wickedly, and malicioufly devifmg, contriving, and intending to afperfe, fcandalize, and vilify the Commons of Great Britain in Parliament aflembled, and moft wickedly and audacioufly to reprefent their pro- ceedings in Parliament as corrupt and unjuft, and to make it to be believed and thought as if the majority of the Commons of Great Britain in Parliament aflembled, were a moft wicked, tyrannical, bafe, and corrupt fet of perfons, and to bring the Commons of Great Britain in Parliament aflembled into hatred and contempt with the fubje&s of this kingdom, and to raife, excitej C 3 J excite, and create moft groundlefs diftrufts in ths minds of all the King's fubjects, as if from the profligacy and \vickednefs of the Commons of Great Britain in Parliament aflembled, great injuftice would be done to the faid Warren Mattings on the fifteenth day of February, in the twenty-eighth year of the reign of our faid prefent Sovereign Lord the King, at Weftminfter afore- faid, in the county of Middlefex aforefaid ; with force and arms, unlawfully, wickedly, malicioufly 5 and feditioufly printed and publifhed, and caufed and procured to be printed and publifhed, in a certain book, or pamphlet, intitled, " A Review of the Principal Charges againfl " Warren Haftings, Efquire, late Go- " vernor General of Bengal,'* A certain falfe, fcandalous, wicked, feditious, and malicious libel of and concerning the faid impeachment of the faid Warren Haftings, fo exhibited as aforefaid, and of and concerning the Commons of Great Britain in Parliament aflembled, containing amongfl other things divers falfe, fcandalous, feditious, and malicious matters of and concerning the faid impeachment, and of and concerning the Commons of Great Britain in Parliament aflembled, according to the tenor and effect following (to wit) : The Houfe of Commons (meaning the Commons of Great JB 2 Britain t 4 ] Britain in Parliament affembled,) has now given its final decifion with regard to the merits and demerits of Mr. Haftings, (meaning the faid Warren Haftings, Efquire, late Governor General of Bengal.) The grand inqueft of England, (meaning the faid Commons of Great Britain in Parliament affembled,) have delivered their charges (meaning the charges of the faid Commons of Great Britain in Parliament affembled,) and preferred their impeachment (meaning their impeachment of the faid Warren Haftings,) ; their allegations are referred to proof? and from the appeal to the collective wifdom and juftice of the nation, in the fupreme tribunal of the kingdom, (meaning the Lords Spiritual and Temporal in Parliament affembled,) the queftion comes to be determined, Whether Mr. Haft- ings (meaning the faid Warren Haftings, Efquire,) be guilty or not guilty ? What credit can we give to multiplied and accumulated charges, (meaning the faid charges of high crimes and mifdemeanors lo exhibited, by the Commons of Great Britain in Parliament affembled as aforefaid, againft the faid Warren Haftings,) when we find that they (meaning the faid charges of high crimes and mifdemeanors fo exhibited by the Commons of Great Britain in Parliament affembled as aforefaid, againft the faid Warren Haftings) originate from mifreprefentation and falfehood, (meaning thereby to caufe it to be believed and underftood, that the faid charges of high crimes and mifdemeanoi's fo exhibited by the C 5 3 the Commons of Great Britain in Parliament affembled as aforefaid, did originate from mifre- prefentation and falfehood,) ; and in another part thereof according to the tenor and effect following (to wit) : An impeachment of error in judgment, with regard to the quantum of a fine, and for an intention that never was executed and never known to the offending party, characlerifes a tribunal -inquifition rather than a Court of Parliament (meaning thereby to caufe it to be believed and underftood that the Commons of Great Britain in Parliament aflembled had proceeded in the fajd impeachment of the faid Warren Haftings in a manner unjuft and unworthy of a Houfe of Par- liament of Great Britain,) ; and in another part thereof, according to the tenor and effect follow- ing (to wit) : The other charges (meaning divers of the charges of the faid impeachment againfl the faid Warren Haftings, Efquire) are fo infig- nificant in themfelves, or founded on fuch grofs mifreprefentations, that they would not affect an obfcure individual, much lefs a public character; they are merely added to fwell the catalogue of accufations, as if the boldnefs of calumny would infure its fuccefs, and a multiplicity of charges \vere an accumulation of crimes. Thirteen of them (meaning thirteen of the faid charges fo exhibited by the Commons of Great Britain in Parliament aflemble4 againft the faid Warren Haftings, Efquire, as aforefaid) paffed in the Houfe of Com- mons (meaning the faid Cammons of Great B 3 Britain C 6 3 Britain in Parliament affembled) not only without inveftigation, but without being read; and the votes (meaning the votes of the Commons of Great Britain in Parliament affembled) were given without enquiry, argument, or conviction ; a ma- jority (meaning a majority of the Commons of Great Britain in Parliament affembled) had deter- mined to impeach j oppofite parties met each other and juftled in the dark, to perplex the political drama and bring the hero (meaning the faid Warren Haftings, Efquire,) to a tragic cataftrophe; and in another part thereof, according to the tenor and effect following (to wit) : But if, after exerting all your efforts in the caufe of your country, you return covered with laurels and crowned with fuccefs, if you preferve a loyal at- tachment to your Sovereign you may expect the thunders of parliamentary vengeance ; you will certainly be impeached, and probably be undone (meaning thereby to caufe it to be believed and underftood, that the Commons of Great Britain in Parliament affembled had impeached the faid' Warren Haftings of high crimes and mifde- meanors, not from motives of juftice, but becaufe the faid Warren Haftings had exerted all his efforts in the caufe of his country, and returned covered with laurels and crowned with fuccefs, and preferved a loyal attachment to our faid pre- fent Sovereign Lord the King) ; and in another part thereof, according to the tenor and effect following (^to wit) : The office of calm deliberate juftice C 7 ] juftlce is to redrefs grievances as well as to punifh offences. It has been affirmed ; that the natives of India have been deeply injured; but has any motion been made to make them compenfation for the injuries they have fuflained ? Have the accufers of Mr. Haftings (meaning the faid Warren Haftings, Efquire,) ever propofed to bring back the Rohiilas to the country from which they were expelled ? to reftore Cheit Sing to the Zemindary of Benares ? or to return to the Nabob of Oude, the prefent which the Governor of Bengal received from him, for the benefit of the Company ? till fuch meafures are adopted, and in the train of negociation, the world has every reafon to con- clude that the impeachment of Mr. Haflings (meaning the faid impeachment fo exhibited by the faid Commons of Great Britain in Parliament affembled, againft the faid Warren Haftings, Efquire, is carried on from motives of perfonal animofity, not from regard to public juftice, to the great fcandal and dishonour of the Commons of Great Britain in Parliament affembled, and in high contempt of their authority, to the great difturbance of the public peace and tranquillity of this kingdom, in contempt of our prefent Sove- reign Lord the King and his laws, to the evil and pernicious example of all others in the like cafe offending, and alfo againft the peace of our faid Sovereign Lord the King, his crown and dignity. And the faid Attorney General of our faid P 4 prefent; [ 8 ] prefent Lord the King, for our -faid Lord the King, further giveth the Court here to underftand and be informed, that the faid John Stockdale, being fuch perfon as aforefaid, and contriving, and wickedly and malicioufly devifing and intending as aforefaid, afterwards, to wit, on the fifteenth day of February, in the twenty-eighth year aforefaid, at Weftminfter aforefaid, in the county aforefaid, with force and arms, unlawfully, wickedly, mali- cioufly and feditioufly printed and publilhed, and caufed to be printed and publifhed, in a certain other book, or pamphlet, intitled, " A Review of the Principal Charges againft u Warren Haftings, Efquire, late Govetr " nor General of Bengal," A certain other falfe, fcandalous, wicked, feditious, and malicious libel, of and concerning the faid impeachment of the faid Warren Haflings, fo exhibited as aforefaid, and of and concerning the Commons of Great Britain in Parliament affem- bled, containing, amongft other things, according to the tenor and effeft following (to wit.) v What credit can we give to the multiplied and accumu- lated charges (meaning the faid charges of high crimes and mifdemeanors, fo exhibited by the Commons of Great Britain in Paliament afTembled as aforefaid, againft the faid Warren Haflings,) when C 9 ] when we find that they (meaning the faid charges of high crimes and mifdemeanors, fo exhibited by the Commons of Great Britain in Parliament af- fembled as aforefaid, againft the faid Warren Raftings,) orima_te_from mifreprefentation and falfehood (meaning thereby to caufe it to be believed and underftood, that the faid charges of high crimes and mifdemeanors, fo exhibited by the Commons of Great Britain, in Parliament aflembled as aforefaid, did originate from mifre- prefentation and falfehood, to the great fcandal and difhonour of the Commons of Great Britain in Parliament aflembled, and in high contempt of their authority ; to the great difturbance of the public peace and tranquillity of this kingdom ; in contempt of our prefent Sovereign Lord the King and his laws, to the evil and pernicious example of all others in the like cafe offending ; and alfo, againft the peace of our faid prefent Sovereign Lord the King, his crown and dignity. And the faid Attorney General of our faid Lord the King, for our faid Lord the King, further gives the Court here to underftand and be informed, that the faid John Stockdale, being fuch perfon as aforefaid, and contriving and wickedly and malicioufly devifmg and intending as aforefaid, afterwards, to wit, on the fifteenth day of February, in the twenty-eighth year aforefaLl, at Weftminfter aforefaid, in the county aforefaid, with force and arms, unlawfully, wickedly, malicioufly and feditioufly printed and publiftied, and c'aufed to be printed and pub- limed, C ii ] lifhed, in a certain other book, or pamplet, in- titled, " A Review of the Principal Charges againfl " Warren Haftings, Efquire, late Cover-* " nor General of Bengal," A certain other falfe, fcandalous, wicked, fe ditious, and malicious libel, of and concern- ing the faid impeachment of the faid Warren Haftings, fo exhibited as aforefaid, and of and concerning the Commons of Great Britain in Parliament affembled, containing, amongft other things, according to the tenor and effect following (to wit) : An impeachment of error in judgment, with, regard to the quanlum of a fine, and for an intention that never was executed, and never known to the offending party, characterifes a tribunal inquifition, rather than a Court of Parliament ; (meaning thereby to caufe it to be believed and underftood, that the Com- mons of Great Britain in Parliament affembled, had proceeded in the faid impeachment of the faid Warren Haftings, in a manner unjuft, and un- worthy of a Houfe of Parliament of Great Britain) : to the great fcandal and difhonour of the Com- mons of Great Britain in Parliament affembled, and in high contempt of their authority ; to the great difturbanceof the public peace and tranquillity of this kingdom ; in contempt of our faid prefent Sovereign C 3 Sovereign Lord the King and his laws, to the evil and pernicious example of all others in the like cafe offending; andalfo, againft the p^ace of ourfaid prefent Sovereign Lord the King, his crown and dignity, &c. And the faid Attorney General of our faid Lord the King, for our faid I^ord the King, further gives the court here to underfland, and be informed, that the faid John $tockdale, being fuch perfon as aforefaid, and contriving and wickedly and malicioufly devifing and intend- ing as aforefaid, afterwards, to wit, on the faid fif- teenth day of February, in the twenty-eighth year aforefaid, at Weftminfter aforefaid, in the county aforefaid, with force and arms, unlaw- fully, wickedly, malicioufly, and feditioufly, printed and publifhed, and caufed to be printed and publifhed, in a certain other book, or pam phlet, intitled, u A Review of the Principal Charges againfl " Warren Haftings, Efquire, late Gover- nor General of Bengal," A certain other falfe, fcandalous, wicked, feditious, and malicious libel, of and concerning the faid im- peachment of the faid Warren Haftings, fo ex- hibited as aforefaid, and of and concerning the Commons of Great Britain in Parliament aflem. bled, containing, amongft other things, according to the tenor and effect following (to wit) : The gther charges (meaning divers of the ttiargesoJ the C M ] the faid impeachment againft the faid Warren Haitings, Efquire,) are fo infignificant in them- felves, or founded on fuch grofs mifreprefenta- tions, that they would not affect an obfcure indi" vidual, much lefs a public character ; they are merely added tofwellthe catalogue of accufations; as if the boldnefs of calumny could enfure its fuc* cefs, and a multiplicity of charges were an accu- mulation of crimes ; thirteen of them (meaning thirteen of the faid charges fo exhibited by the Commons of Great Britain in Parliament affem- bled, againfl: the faid Warren Haftings, Efquire, as aforefaid) paffedin theHoufeof Commons, (mean- ing the Commons of Great Britain in Parliament afiembled) not only without inveftigation, but without being read, and the votes (meaning the votes of the Commons of Great Britain in Parlia- ment affembled) were^giyen^ without enquiry, argument, qr conviction : a majority (meaning a majority of the Commons of Great Britain in Parliament anembled) had determined to impeach j oppofite parties met each other and juftled in the dark, to perplex the political drama, and bring the hero (meaning the faid Warren Haftings, Efquire,) to a tragic cataftrophe; to the great fcandal and difhonour of the Commons of Great Britain in Parliament aflembled, and in high con. tempt of their authority ; to the great difturbance of the public peace and tranquillity of this king, dom ; in contempt of our prefent Sovereign Lord the King and his laws j to the evil and pernicious example of all others in the like cafe offending, and alfo I '3 3 alfo againft the peace of our faid prefent Sovereign Lord the King, his crown and dignity, &c. And the faid Attorney General of our faid Lord the King, for our faid Lord the King, further gives the court here to underftand and be informed, that the faid John Stockdale, being fuch perfon as aforefaid, and contriving and wickedly and malicioufly devifmg and intending as aforefaid, afterwards, to wit, on the faid fifteenth day of February, in the twenty-eighth year aforefaid, at Weftminfter aforefaid, in the county aforefaid, with force and arms, unlawfully, wickedly, mali- cioufly, and feditioufly, printed and publimed, and caufed and procured to be printed and pub- limed, in a certain other book, or pamphlet, intitled, " A Review of the Principal Charges againft " Warren Haftings, Efquire, late Gover- " nor General of Bengal," A certain other falfe, fcandalous, wicked, fedi- tious, and malicious libel, of and concerning the faid impeachment of the faid Warren Haf- tings, fo exhibited as aforefaid, and of and concerning the Commons of Great Britain in Parliament alfembled, containing, amongft other things, according to the tenor and effect following (to wit) : But if after exerting all your efforts in the caufe of your country, you return covered with laurels, C '4 ] laurels, and crowned with fuccefs; if youpreferve a loyal attachment to your Sovereign, you may expect the thunders of parliamentary vengeance 5 you will certainly be impeached, and probably be undone (meaning thereby to caufe it to be believed and underftood, that the Commons of Great Britain in Parliament aflembled, had im- peached the faid Warren Mailings of high crimes and mifdemeanors, not from motives of juftice, but becaufe the faid Warren Haftings had exerted all his efforts in the caufe of his country, and returned covered with laurels and crowned with fuc- cefs, and preferred a loyal attachment to our Sove- reign Lord the prefent King) ; to the great fcandal and dimonour of the Commons of Great Britain in Parliament affembled, and in high contempt of their authority ; to the great diflurbance of the public peace and tranquillity of this kingdom ; in contempt of our prefent Sovereign Lord the King, and his laws ; to the pernicious example of all others in the like cafe offending ; and alfo, againfl the peace of our faid prefent Sovereign Lord the King, his crown and dignity, &c. And the faid Attorney General of our faid Lord the King, for our faid Lord the King, further gives the court here to underftand and be informed, that the faid John Stockdale, being fuch perfon as aforefaid, and contriving, and wickedly and malicioufly de- vifmg and intending as aforefaid, afterwards, to wit, on the faid fifteenth day of February, in the twenty-eighth year aforefaid, at Weftminfter aforefaid, C '5 D aforefaid, in the county aforefaid, with force and arms, unlawfully, wickedly, malicioufly, and feditioufly printed and publilhed, and caufed and procured to be printed and publimed, in a certain other book, or pamphlet, intitled, " A Review of the Principal Charges againft " Warren Haftings, Efquire, late Gover- " nor General of Bengal," A certain other falfe, fcandalous, wicked, fedi- tious, and malicious libel, of and concerning the faid impeachment of the faid Warren Haftings, fo exhibited as aforefaid, and of and concerning the Commons of Great Britain in Parliament affem- bled, containing, amongft other things, according to the tenor and effect following (to wit) : The office of calm deliberate juftice, is to redrefs griev- ances as well as to- punifh offences. It has been affirmed that the natives of India have been deeply injured, but has any motion been made to make them compenfation for the injuries they have fuf- taincd ? have the accufers of Mr. Haftings, (mean- ing the faid Warren Haftings, Efquire,) ever piopofed to bring back the Rohillas to the country from which they were expelled ? to reftore Cheit Sing to the Zemindary of Benares ? or to return to the Nabob of Oude the prefent, which the Governor of Bengal received from him for the benefit of the Company? till fuch meafures are adopted, C I* J adopted, and in the train oPhegociation, the world lias every reafon to conclude that the impeachment of Mr. Haftings, (meaning the faid impeachment fo exhibited by the Commons of Great Britain in Parliament afiembled, againft the faid Warren Haftings, Efquire, is carried on from motives of perfonal animofity, not from regard to public jirilice) ; to the great fcandal and difhonour of the Commons of Great Britain in Parliament aflfem- bled, and in high contempt of their authority ; to the great difturbance of the public peace and tranquillity of this kingdom ; in contempt of the prefent Sovereign Lord the King, and his laws ; to the evil and pernicious example of all others in the like cafe offending; and alfo 'againft the peace of our faid Lord the prefent King, his crown and dignity, &c. Whereupon the faid Attorney Gene- ral of our faid Lord the King, who for our faid Lord the King, in this behalf, profecuteth for our faid Lord the King, prayeth the confederation of the court, here in the premifes, and that due procefs of law may be awarded againft him the faid John Stockdale, in this behalf, to make him anfwer to our faid Lord the King, touching and concerning the premifes aforefaid. COUNSEL C '7 COUNSEL againft MR. STOCKDALE, The ATTORNEY GENERAL, The SOLICITOR GENERAL, Mr. BEARCROFT, and Mr. WOOD. SOLICITORS. MeiT. CHAMBERLYNE and WHITE, Solicitors for the Affairs of his Majefty's Treafury. COUNSEL for MR. STOCKDALE. The Hon. THOMAS ERSKINE, and Mr. DAYRELL. SOLICITOR. Mr. SAMUEL HARMAN, Jermyn Street. [The C 19 ] \_Tbe Information 'was opened by Mr. WOOD.] Mr. ATTORNEY GENERAL. MAY itpleafe your Lordfhip Gentlemen of the Jury : This information, which it has been my duty to file againft the defendant, John Stockdale, comes before you in confequence of an addrefs from the Houfe of Commons. This you may well fuppofe I do not mention as in any degree to influence that judgment which you are by and by to give, but I am to ftate it as a meafure which they have taken, thinking it in their wifdom, as every body mud think it the fitteft meafure to bring before a Jury of the country, an offender of this fort againft them, and againft their honor, wifhing thereby to avoid what fometimes indeed is unavoidable, but which they wifli to avoid, whenever with propriety it can be done ; the acting both as judges and accufers, that they muft neceflariiy have done, had they reforted to their own powers, which are very great, and very extenfive, for the purpofe of vindicating themfelves againft infult and con- tempt> but which in the prefent inftance they wifely forbore from exercifmg, thinking it better to leave this defendant to be dealt with by a fair and impartial Jury. C* The The offence which I impute to him is that of calumniating the Houfe of Commons, not in its ordinary legiflative capacity, but when acting In its accufatorial capacity, conceiving it to be their duty on adequate occafions to inveftigate the conduct of perfons in high ftations, and to leave that conduct to be.judged of by the proper conftitutional tribunal, the Peers in Parliament affembled. After due inveftigation, the Commons of Great Britain thought it their duty, as is well known, to fubmit the conduct of a fervant of this country, \vho governed one of its mofl opulent dependencies for many years, to an enquiry before that tri- bunal, One mould have thought that every good fubject of this country would have ibrborn im- puting to the Houfe of Commons motives utterly unworthy of them, and of thofe whom they reprefent ; inflead of this, to. fo great a degree now has the licentioufnefs of the prefs arifen, that motives the moft ' unbecoming that can actuate even any individual, who may be concerned in the profecution of public juftice, are imputed to the reprefentatives of the people of this country in a body ; no credit is given to them for meaning to do juftice to their country, but, on the contrary, private, perfonal, and malicious motives are imputed to the Commons of Great Britain. When C j When fuch an imputation is made upon the very nrft tribunal that this country knows ; namely, the great inqueil of the nation, the Commons in Parliament afiembled, carrying any fubject, who they may think has offended, to the bar of the Houfe of Lords I am fure you will think this an attack fo dangerous to every tri- bunal, fo dangerous to the whole adminiftration of juftice, that if it be well proved, you cannot fail to give it your fligma, by a verdict againft the defendant. Gentlemen, The particular paffages which I mail put my finger upon in this libel, it will now be my duty to ftate. You know very well, that it is your duty to confider of the meaning that I have imputed to thofe paffages in the information ; if you agree with me in that meaning, you con- vict ; if you difagree with me, of courfe you acquit. The rule of your judgment I apprehend, with fubmimon to his Lordmip, will be the ordinary acceptation of the' words, and the plain and obvious fenfe of the feveral paflages ; if there is doubt, or if there is difficulty ; if there is fcrewing ingenuity, or unworthy {training, on the part of a public profecutor, you certainly will not pay attention to that ; but, on the contrary, if he who runs may read ; if the meanefl capacity muft underftand thefe words, in the plain and ob- C 3 vious r T vious fenfe, to be the fame as imputed in this information, in fuch a cafe as that, ingenuity on the other fide muft be laid afide by you, and you will not be over anxious to give a meaning to thofe words, other than the ordinary and plain one. In my fituation,' it does not become me to raife in you more indignation than the words themfelves, and the plain and fimple reading of the libel, will do : Far be it from me, if it were in. my power fo to do, to provoke any undue paf- fions or animofity in you, againil conducl even fuch as this. The foiemnity of the fituation in which I am placed on this occafion, obliges me to addrefs the intellect both of the Court and Jury, and neither their paffions nor their indig- nation ; for that reafon I fhall content myfelf with the few obfervations I have made, and betake myfelf merely to the words of the libel.; and leaving that with you, I am mofl confident that if you follow the rule "of interpretation 'which "you always do upon fuch occafions, it cannot poffibly happen that you ihould differ from nie$ in the conftrufticn which I have put upon thefe words. . Gentlemen, This I mould however mention to you is a libel perhaps, of a more dangerous nature than the ribaldry that we daily fee crowding every one of the prints that appear every morning upon , our tables j becaufe it is contained [ *3 J contained in a work which difcovers the author of it to be by no means ignorant of the art of competition, but certainly to be of good under- flanding, and by no means unacquainted with letters. Therefore when calumny of this fort comes fo recommended, and addreffing itfelf perhaps to the understandings of the moft enlightened part of mankind you underftand, I mean thofe who have had the bed education it may fmk deep into the minds of thofe who com- pofe the thinking and the judging part of the community ; and by mifleading them, perhaps may be of more real danger than the momentary mif- eading, or the momentary inflammation, of men's minds, by the ordinary publications of the day. This book is intitled, " A Review of the Principal Charges againft " Warren Haftings, Efquirer, late Governor General of Bengal," One paffage in it is this : ** The Houfe of Commons has now given " its final decifion with regard to the " merits and demerits of Mr. Haftings. " The grand inqueft of England have ' delivered their charges, 5 and preferred C 4 !' their L 24 ] " their impeachment; their allegations are " referred to proof; and from the appeal " to the collective wifdom and juftice of *' the nation in the fupreme tribunal of >c the kingdom, the queftion comes to be " determined, whether Mr. Haftings be " guilty, or not guilty ?" Another is this : , by the light of " bonfires and illuminations. But if, after " exerting, C ss ] " exerting all your efforts in the caufe of " your country, you return, covered with " laurels and crowned with fuccefs ; if " you preferve a loyal attachment to your " Sovereign, you may expedt the thunders " of parliamentary vengeance ; you will " certainly be impeached, and probably be undone." Another pafiage is this ; " The office of calm deliberate juftice, is tQ " redrefs grievances as well as to punifh e underftood. The Commons of Great Britain in Parliament aftembled, had accufed Mr. Hafliings, as Governor General of Bengal, of high crimes and mifdemea- nors ; and their jurifdiftion for that high purpofe of national juftice, was unqueftionably competent. ut it is proper you fhould know the nature of this inquifitorial C 42 '] inquifitorial capacity. The Commons, in voting an impeachment, may be compared to a Grand Jury, finding a bill of indictment for the Crown : neither the one nor the other can be fuppofed to proceed, but upon the matter which is brought before them ; neither of them can find guilt without accufation, nor the truth of accufation without evidence. When therefore we fpeak of the accufer or ac- cuferers, of a perfon indicted for any crime, although the Grand Jury are the accufers inform, by giving effect to the accufation ; yet in common parlance we do not confider them the refponfible authors of the profecution. If I were to write of a mod wicked indictment, found againft an inno- cent man, which was preparing for trial, nobody who read it would conceive I meant to ftigmatize the Grand Jury that found the bill ; but it would be enquired immediately, who was the profecutor, and who were the witneifes on the back of it. In the fame manner I mean to contend, that if this book is read with only common attention, the whole fcope of it will be difcovered to be this : That in the opinion of the author, Mr. Haft- ings had been accufed of malicious adminiftration in India, from the heat and fpleen of political divifions in Parliament, and not from any zeal for national honour or juflice j that the impeach- C 43 ] ment did not originate from Government, but from a faction banded againft it, which> by mifre- prefentation and violence, had faflened it on an un- willing Houfe of Commons ; that, prepolTefled with this fentiment (which, however unfounded, makes no part of the prefent bufmefs, fmce the publifher is not called before you for defaming individual members of the Commons, but for a contempt of the Commons as a body,) the author purfues the charges, article by article; enters into a warm and animated vindication of Mr. Haftings, by regular anfwers to each of them ; and that, as far as the mind and foul of a man can be vilible, I might alirfofl fay, embodied in his writings, his inten- tion throughout the whole volume appears to have been to charge with injuftice the private accufers of Mr. Haftings, and not the Houfe of Commons as a body ; which undoubtedly rather reluctantly gave way to, than heartily odopted the impeachment. This will be found to be the palpable fcope of the book ; and no man who can read Englifh, and who at the fame time, will have the candour and common fenfe to take up his impreffions from what is written in it, inftead of bringing his own along with him to the reading of it, can poflibly underftand it otherwife. / But it may be faid, that admitting this to be the fcope and defign of the author, what right had he to canvafs the merits of an accufation upon 1 the [ 44 ] the records of the Commons ; more efpecially while it was in the courfe of legal procedure. -This I confefs might have been a ferious queftion ; but the Commons, as Profecutors of this Informa- tion, feem to have waved, or forfeited their right to afk it. Before they fent the Attorney General into this place, to punifh the publication of anfwers to their charges, they mould have recollected that their own want of circumfpection in the main- tenance of their privileges, and in the protection of perfons accufed before them, had given to the public the charges themfelves, which mould have been confined to their own journals. The courfe and practice of Parliament might warrant the printing of them for the ufe of their own Mem- bers, but there the publication mould have ftopt, and all furthei progrefs been refitted by authority. If they were refolved to confider anfwers to, their charges as a contempt of their privileges, and: to punifn the publication of them by fuch fevere pfofecutions, it would have well become them to have begun firft with thofe printers who by pub- liming the charges themfelvet throughout the whole kingdom, or rather throughout the whole civilized world, were anticipating the paffions and judg- ments of the public againft a fubject of England v upon his trial, fo as to make the publication of anfwers C 45 ] anfwers to them not merely a privilege, but a debt and duty to humanity and juftice. The Commons of Great Britain claimed and exercifed the privileges of queftioning the inno- cence of Mr. Haftings by their impeachment ; but as, however queftioned, it is flill to be prefumed and protected, until guilt is eftablimed by judg- ment, he whom they had accufed, had an equal claim upon their juftice, to guard him from prejudice and mifreprefentation until the hour of trial. Had the Commons, therefore, by the exercife of their high, neceflary and legal privileges, kept the public aloof from all canvafs of their proceedings, by an early punimment of printers, who, without referve or fecrecy, fent out the charges into the world from a thoufand preffes in every form of publication, they would have then flood upon ground to-day, from whence no argument of policy or juftice could have removed them ; be- caufe nothing can be more incompatible with either, than appeals to the many upon fubjecls of judicature, which by common confent a few are appointed to determine, and which muft be deter- mined by facts and principles, which the multitude have neither leifure nor knowledge to invcftigate. But then let it be remembered, that it is for thofe who have the authority to accufe and punifh, to C 46 J to fet the example of, and to enforce this referve ? which is fo neceffary for the ends of juftice. Courts of law therefore in England never endure the publication of their records ; and a profecutor of an indictment would be attached foi fuch a publication; and. upon the fame prin- ciple, a defendant would be punifhed for anti- cipating the juftice of his country, by the publication of his defence, the public being no party to it, until the tribunal appointed for its determination be open for its decifion. Gentlemen, you have a right to take judicial notice of thefe matters, without the proof of them by witnefies ; for jurors may not only without evidence found their verdi&s on fa&s that are notorious, but upon what they know privately themfelves, after revealing it upon oath to. one another ; and therefore you are always to re- member, that this book was written when the Charges againft Mr. Haftings, to which it is an anftver, were, to the knowledge of the Commons, (for we cannot prefume our watchmen to have been afleep,) publicly hawked about in every pamphlet, magazine, and newfpaper in the kingdom. > Gentlemen, you well know with what a curious appetite thefe Charges were devoured by the whole L 47 J whole public, Interefting as they were, not only from their importance, but from the merit of their compofition; certainly not fo intended by the honorable and excellent compofer to opprefs the accufed, but becaufe the commoneft fubjects fwell into eloquence under the touch of his fublime genius. Thus by the remiflhefs of the Commons, who are now the prof editors of this information, a fubject of England, who was not even charged with contumacious refiflance to authority, much lefs a proclaimed outlaw, and therefore fully entitled to every protection which the cuftoms and flatutes of the kingdom hold out for the pro- tection of Britifh liberty, faw himfelf pierced with the arrows of thoufands and ten thoufands of libels. Gentlemen, before I venture to lay the book before you, it muft be yet further remembered, (for the fact is equally notorious,)' that under thefe unaufpicious circumftances, the trial of Mr. Haftings at the bar of the Lords had actually commenced long before its publication. There the moft auguft and ftriking fpe&acle was daily exhibited, which the world in any age of it ever witnefled. A vaft ftage of juftice was erected, awful from its high authority, fplendid from its illuftrious dignity, venerable from the learning [ 48 ] learning and wifdom of its judges, captivating and affecting from the mighty concourfe of all ranks and conditions which daily flocked into it, as into a theatre of pleafure; there, when the whole public mind was at once awed and foftened to the impreffion of every human affection, -there ap- peared, day after day, one after another, men of the moft powerful and exalted talents, eclipfmg by their accufing eloquence the moft boafted harangues of antiquity j roufing the pride of national refentment, by the boldeft invectives againft broken faith, and violated treaties, and making the bofom with alternate pity and horror, by the moft glowing pictures of infulted nature and humanity. Ever animated and energetic, from the love of fame, which is the inherent paflion of genius ; firm and indefatigable from a flrong prepoffemon of the juftice of their caufe. Gentlemen, when the author fat down to write the book now before you, all this terrible, unceaf- ing, exhauftlefs artillery of warm zeal, matchlefs vigour of underftanding, confuming and devouring eloquence, united with the higheft dignity, was daily, and without profpect of conclufion, pouring forth upon one private unprotected man, who was bound to hear it, in the face of the whole people of England, with reverential, fubmiflion andfilence. Gentlemen, I do not complain of this as I did of the publication of the Charges ; becaufe it is what I 49 J the law allowed, and fantioned in the courfe of a public trial ; but when it is remembered that we are not angels, but weak fallible men, and that even the noble Judges of that high tribunal are cloathed beneath their ermines with the common infirmities of man's nature, it will bring us all to a proper temper for con,, fidering the book itfelf, which will in a few moments be laid before you. Gentlemen, it was under all thefe circumfhnces, and amidft the blaze of paffion and prejudice, which. the fcene I have been endeavouring faintly to defcribe to you might be fuppofed likely to produce, that the author, whofe name I will now give to you, fat down to compofe the book which is profecuted to day as a libel. The hiftory of it is very fliort and natural. The Rev. Mr. Loggan, Minifter of the Gofpel at Leith in Scotland, a clergyman of the pureft morals, and as you will fee by and by of very fuperior talents, well acquainted with the human chara&er, and knowing the difficulty of bringing back public opinion after it is fettled on any fubjeft, took a warm, unbought, unfolicited intereft in the fituation of Mr. Haftings, and determined, if poflible, to arreft and fufpend the public judgment concerning him. He felt for the ^ fituation C 50 J' fituation of 'a fellow citizen, expofed to a trial which, whether right or wrong, is undoubtedly a fevere one ; a trial, certainly not confined to a few criminal a&s, like thofe we are accuftomed to, but comprehending the tranfations of a whole life, and the complicated policys of entire nations ; a trial, which had neither vifible limits to its duration, bounds to its expence, nor circum- fcribed compafs for the grafp of memory or underftanding ; a trial, which had therefore broke loofe from the common forum of decifion, and had become the the univerfal topic of difcuflion in the world, fuperfeding not only every other grave purfuit, but every other fafhionable diffipation. Gentlemen, the queftion you have there* fore to try upon all this matter, is extremely fimple ; it is neither more nor lefs than this : At a time when the charges againft Mr. Raf- tings were, by the implied confent of the Com- mons, in every hand, and on every table j when by their Managers, the lightning of eloquence was inceflantly confuming him, afid flaming in the eyes of the public j when every man was with perfect impunity faying, and writing, and publifhing juft what he pleafed of the fuppofed plunderer and devaftator of nations ; would it have been criminal in Mr. Ha/lings Ijimfelf to have reminded the public that he was a native of this free land, entitled to the common protection of her juftice, and that he had a defence in his turn \ C 5' ] turn to offer to them, the outlines of which he implored them in the mean time to receivej as an antidote to the unlimited and unpunimed poifon in circulation againfl him ? Gentlemen, this is> without colour or exag- geration, the true quellion you are to decide. For I affert, without the hazard of contradiction, that r if Mr* Haflings himfelf could have Hood juftified or excufed in your eyes, for publifhing this volume in his own defence, the author, if he wrote itbona fide to defend him, muft ftand equally excufed and juftified ; and if the author be juftiiied, the publifher cannot be criminal, unlels you had evidence that it was publifhed by him, with a different fpirit and intention from thofe in which it was written. The queftion therefore is correctly what I juft now ftated it to be : Could Mr. Ha/lings have been condemned to ^j infamy for writing this book ? Gentlemen, I tremble with indignation, to be driven to put fuch a queftion in England. Shall it be endur-jd, that a fubjcct of this :ountry, inllcad of being arraigned and tried for fome fmgle act in her ordinary courts, where the accufation, as foon at lead as it is made public, is followed within a few hours by the decifion, may be im- peached by the Commons for the tranfactions of twenty years, that the accufation mail fpread as wide as the region of letters, and the accufed E 2 {hall C 5* ] fhall ftand day after day, and year after year, as a fpectacle before the public, which mall be kept in a perpetual flate of inflammation againft him ; yet that he fhall not, without th^feyereft^penalties) be permitted to fubmit any thing to the judgment of mankind in his defence. If this be law (which it is for you to day to decide), fuch a man has no trial j that great hall, built by our fathers for Eng- lifh juftice, is no longer a court, but an altar ; and an Englishman, inftead of being judged in it by GOD AND HIS COUNTRY, is A VICTIM AND A SACRIFICE/-Gemlemen, you will carefully remember, that I am not prefuming to queflion either the right or the duty of the Com- mons of Great Britain to impeach ; neither am I arraigning the propriety of their fele&ing, as they have done, the moil extraordinary perfons for abi- lity which the age has produced to manage their impeachment. Much iefs am I cenfuring the Managers themfelves, charged with the conduct of it before the Lords, who were undoubtedly bound/ by their duty to the houfe, and to the public, to expatiate upon the crimes of the perfons whom they had accufed. None of thefe points are queftioned by me, nor are in x this place queftjp.nable. I only defire to have it decided, whether if the Commons, when national expediency happens to call in their judg- ment for an impeachment, ihall-, inftead of keeping it un their own records, and carrying it with due folcmnity [ 53 ] folemnity to the peers for trial, permit it without cenfure and punifhment to be fold like a common news paper in the {hop of my client, fo crowded with their own members, that no plain man, without privilege of Parliament, can hope even for a fight of the fire in a winter's day; every man buying it, reading it, and commenting upon it ; the gentleman himfelf who is the object of it, or his friend in his abfence, may not, without ftepping beyond the bounds of Englilh freedom, put a copy of what is thus publifhed into his pocket, and fend back to the very fame mop for publication a bona fide, rational, able anfwer to it, in order that the bane and antidote may circu- late together, and the public be kept iiraight till the day of decifion. Gentlemen, if you think that this common duty of felf-prefervation, in the accufed himfelf, which nature writes as a law upon the hearts of even fava- ges and brutes, is neverthelefs too high a privilege to be enjoyed by an impeached and fuffering Eng- Jifhman ; or if you think it beyond the office of humanity and juftice, when brought home to the hand of a brother or a friend, you will fay fo by your verdict of GUILTY The deci- Jion will then be yours ; and the confolation- inine, that I laboured to avert it. A very fmall part of the mifery which will follow from it, is likely to light upon me ; the reft will be divided E 3 amongfl C 54 ] amongft yourfelves and your children. Gentlemen, I obferve plainly, and with infinite fatisfa&ion, that you are fhocked and offended at my even Tup-? pofing it poffible you fhould pronounce fuch a de-^ teftable judgment ; and that you only require of me to make out to your fatisfaction (as I protnifed} that the real fcope and object of this book is a bona fide defence of Mr. Mailings, and not a cloak and cover for fcandal on the Houfe of Commons. Gentlemen, I engage to do this, and I engage for nothing more ; I mail make an open manly de- fence. I mean to torture no expreffions from their natural conftru&ions, to difpute no innuendos on the record, mould any of them have a fair appli- cation ; nor to conceal from your notice any un- guarded intemperate expreffions, which may perr haps be found to chequer the vigorous and ani- mated career of the work. Such a conduct might by accident, fhelter the defendant ; but it would be the furrender of , the very principle on which alone the liberty of the Englifh prefs can (land j and I mall never defend any man from a temporary imprifonment, by the permanent lofs of my own liberty, and the ruin of my country. I mean therefore to fubmit to you, that though you mould find a few lines in page thirteen, or twenty-one ; a few more in page fifty-one, and fome others in pther places ; containing expreffions bearing on the Houfe of Commons, even as a -body, which, if written as independent paragraphs by themfelves, C 55 ] would be indefenfible libels ; yet that you have a right to pafs them over in judgment, provided the fubftance clearly appears to be a bona fide conclu- fion, arifing from the honeft inveftigation of a fub- ject which it was lawful to inveftigate, and the queftionable expreffions, the vifible effufion of a zealous temper, engaged in an honourable and legal purfuit. After this preparation I am not afraid to lay the book in its genuine flate before you. The Pamphlet begins thus, THE Houfe of Commons has now given " its final decifion with regard to the " merits and demerits of Mr. Haftings. " The grand inqueft of England have deli- " vered their charges, and preferred their " impeachment ; their allegations are re- u ferred to proof; and from the appeal to " the collective wifdom and juftice of the " nation in the fupreme tribunal of the " kingdom, the queftion comes to be de- ** termined, whether Mr, Haftings be guilty " or not guilty ?" Now if immediately after what I have juft read to you, (which is the firft part charged by the in- formation) the author had faid E 4 " Will C 56 ] " Will'accufations, built on fuch a bafelefs " fabric, prepoflefs the public in favour " of the impeachment ? What credit can " we give to multiplied and accumulated " charges, when we find that they originate " from mifreprefentation and falfehood ? Every man would have been juftifie.l in pronounc* ing that he was attacking theHoufe of Commons, becaufe the groundleis accufations mentioned in the lecond fentence, could have no reference but to :he Houfe itfelf, mentioned by name in the firft and only feriterice which preceded it. But, Gentlemen, to your aftonimment, I \viU now read what intervenes between thefe two paf- fages ; from which you will fee, beyond a pollibility of doubt, that the author never meant to calum, mate the Houfe of Commons, but to fay that the accufation of Mr. Ma flings before the whole Houfe grew out of a Committe of Secrefy eftablimed fomc years before, and was afterwards brought forward by the fpleen of private enemies, and a faction in the Government. This will appear, not only from the grammatical conftrudion of the words, but; from what is better than words ; from the mean- ing which a perfon writing as the friend of Mr. Haftings muft be fuppofed to have intended to Convey, Why fliould fuch a, fdenci attack the [ 57 3 Houfc of Commons ? Will any man gravely tell me, that the Houfe of Commons, as a body, ever wifhed to impeach Mr. Haftings ? Do we not all know that they coaftantly hung back from it, and hardly knew where they were, or what to do, when they found themfclves entangled with it ? My learned friend the Attorney General is a member of this aflbmbly ; perhaps he may tell you by and by what he thought of it, and whether he ever marked any difpofition in the majority of the Com- mons hoflile to Mr. Haftings. But why mould I diitrefs my friend by the queflion ; the fad is fufficiently notorious ; and what I am going to read from the book itfelf, (which is left out in the information,) is too plain for controverfy. " Whatever may be the event of the im- " peachment, the proper exercife of fuch " power is a valuable privilege of the " Britifh conftitution, a formidable guar- " dian of the public liberty, and the dig- " nity of the nation. The only danger is> " that from the influence of faction, and the " awe which is annexed to great names, " they may be prompted to determine before *' they inquire, and to pronounce judgment ** without examination" Here C 58 ] Here is the clue to the whole pamphlet. The author trufts to and refpects the Houfe of Com- mons, but is afraid their mature and jufl examina- tion will be difturbed by faff ion. Now, does he mean Government, by faflion ? Does he mean the majority of the Commons, by faflion ? Will the Houfe, wKich is the profecutor here, fan&ion that application of the phrafe ; or will the Attorney General admit the majority to be the true innuendo of fattion ? I wifh he would ; I mould then have gained fomething at leaft by this extraordinary debate ; but I have no expefta- tion of the fort ; fuch a conceffion would be too great a facrifice to any profecution, at a time when every thing is confidered as fa&ion that difturbs the repofe of the Minifter in Parliament. But indeed, Gentlemen, fome things are too plain for argument. The author certainly means my friends^ who, whatever qualifications may belong to thqm, muft be contented with the appellation oifefl[jon t while they oppofe the Minifter in the Houfe of Commons ; but the Houfe, having given this meaning to the phrafe of faclion for its own pur- poles, cannot in decency change the interpretation, in order to convict my client. I take that to be beyond the privilege of Parliament. The fame bearing upon individual members of the Commons, and not on the Commons as a body^ is obvious throughout. Thus., after faying, in page t 59 ] page 9, that the Eaft-India Company had thanked Mr. Haftings for his meritorious fervices (which is unqueftionably true,) he adds, " That mankind would abide by their deli- " berate decifion, rather than by the in- " temperate aflertion of a Committee," This he writes after the impeachment was found by the Commons at large ; but he takes no ac- count of their proceedings ; imputing the whole to the original Committee, ;. e. the Committee of Se- crecy ; fo called, I fuppofe, from their being the authors of twenty volumes in folio, which will re- main a fecret to all.pofterhy, as nobody will ever read them. The fame conftruclion is equally plain from what immediately follows : *' The report of the Committee of Secrecy " alfo ftates, that the happinefs of the na- " tive inhabitants of India has been deeply " affected, their confidence in Englifh faith " and lenity maken and impaired, and the " character of this nation wantonly and ft wickedly degraded." Here again you are grofsly milled by the omif- fion of near twenty-one pages. For the author, though he is here fpeaking of this Committe by name, xvhich brought forward the charges to the .notice of the Houfe, and which he continues to do onward to the next fele&ed paragraph j ye,t, by arbitrarily finking the whole context, he is taken ta be fpeakirig of the Houfe as a body, when, in the paflage next charged by the information, he re- proaches the accufers of Mr. Haftings. Although, fo far is he from confidering them as the charges of the Houfe of Commons, that in the very fame page he fpeaks of them as the charges, not even 'of the Committee, but of Mr. Burke alone, the rnofl active and intelligent member of that body ; and as having been circulated in India by a rela- tion of that gentleman : The charges of Mr. Burke have been car- " ried to Calcutta, and carefully circulated in India-." * " Mr. William Burkcj a coufin of the Member of '* Parliament, undertook this friendly office, Now, if we were confidering thefe paffages of the work as calumniating a body of gentlemen, many of whom I muft be fuppofed highly to t.efpeft, or as reflecting upon my worthy friend whofe name I have mentioned, it would give rife to a totally different enquiry, which it is neither my 4uty nor yours to agitate j but furely, the more that confideration obtrudes itfelf upon us, the more clearly it demonflrates, that the author'^ whole direction was againft the individual ac,, cufers ( 61 ) tufers of Mr. Haflings, and not againft the Houfe of Commons, which merely trufted to the matter they had collected. Although, from a caution which my fituation dictates as reprefenting another, I have thought it my duty thus to point out to you the real in* tention of the author, as it appears by the fair conflruclion of the work, yet I proteft, that in my own apprehenfion it is very immaterial, ^ whether he fpeaks of the Committee or of the Houfe, provided you (hall think the whole volume a bona fide defence of Mr. Haftings. This is the great point I am, by all my obfervations, endea- vouring to eftabliih, and which I think no man who reads the following fhort pafTages can dcubt* Very intelligent perfons have indeed confidered them, if founded in fafts, to render every other amplification unneceflary. The firfl of them is as follows : " It was known, at that time, that Mr. " Haftings had not only defcended from " a public to a private ftation, but that he " was perfecuted with accufations and im- " peachments. But none of thefe fujfering " millions have fent their complaints to this " country: not a figh nor a groan has been " wafted from India to Britain. On the "contrary, teftimonies the moft honour- " able L *> 1 " able to the character and merit of Mf/ " Haftings, have been transmitted by " thofe very princes whom he has been " fuppofed to'have loaded with the deepeft " injuries*" Here, Gentlemen, we muft be permitted to paufe together a little ; for in examining whether thefe pages were written as an honefl anfwer to the- charges of the Commons, or as a profHtuted de-- fence of a notorious criminalj whom the writer believed to be guilty, truth becomes material at every ftep. For if in any inftance he be detected of a wilful mifreprefentatioii, he is no longer an, object of your attention. Will the Attorney General proceed then to detect the hypocrify of our author, by giving us fome detail of the proofs by which thefe perfonal enormities have been eftablimed, and which the 1 writer muft be fuppofed to have been acquainted with ? I afk this as the defender of Mr. Stockdale, not of Mr. Haftings, with whom I have no con- cern. I am forry, indeed, to be fo often obliged to repeat this proteft ; but I really feel myfelf em- barrafied with thofe repeated coincidencies of de- fence which thicken on me as I advance, and which were, no doubt, overlooked by the Com- mons when they directed this interlocutory en- quiry into his conduft. I afk [ 63 3 I aik then, as counfcl for Mr. Stcckdale, Whether, when a great flate criminal is brought for juftice at an immenfe expence 'to the public, accufed of the mod oppreifive cruelties, "and charged with the robbery of princes and the dex flruclion of nations ; it is not open to any one to alk, Who are his accufers ? What are the fources and the authorities of thefe mocking complaints ? - Where are the ambafladors or memorials of thofe princes whofe revenues he has plundered? Where are the witnefles for thofe unhappy men in whofe perfons the rights of humanity have been violated ? How deeply buried is the blood of the innocent that it does not rife up in retributive judgment to confound the guilty ! Thefe furely are queftkms, which, when a fellow-citizen is upon a long, pain- ful, and expenfive trial, humanity has a right to propofe ; which the plain fenfe of the mod unlet- tered man may be expected to dictate, and which all hifiory mufl provoke from the mqre en- lightened. When CICERO impeached VERRES before the great tribunal of Rome of fimilar cruelties and depredations in her provinces, the Roman people were not left to fuch enquiries. ALL SICILY furrounded the forum, demanding juftice upon her plunderer and fpoiler, with tears and imprecations. It was not by the eloquence of the orator , but by the cries and tears of the miferable, that Cicero prevailed in that illuflrious caufe. VERRLS C 6 4 ] VERRES fled from the oaths of his accufefg and their witneffes, and not from the voice of TULLY ; who, to prefcrve the fame of his elo- quence, . published the five celebrated fpeeches which were never delivered againft the criminal, becaufe he had fled from the city, appalled with the fight of the perfecuted and the opprelfed. It may be faid, that the cafes of Sicily and India are widely different; perhaps they may; whether they are or not is foreign to my purpofe. I am not bound to deny the pombility of anfwers to fuch queftions ; I am only vindicating the right to ajk them. Gentlemen, the author in the other paifage which I marked out to your attention goes on thus : " Sir John Macpherfon, and Lord Corn- *' wallis, his fucceflbrs in office, has given " the fame voluntary tribute of approba- " tion to his meafures as Governor Ge- " neral of India. A letter from the-9mer, <'.. " dated the loth of Auguft, 1786, gives " the following account of our dominions " in Afia : ' The native inhabitants of this " kingdom are the happieft and beft pro- " teemed fubjeas in India; our native " allies and tributaries confide in our pro- tedion; C 6 5 ] u tedtion ; the country powers are afpiring " to the friendfhip of the Englifh ; and " from the King of Tidore, towards New " Guinea, to Timur Shaw, on the banks " of the Indus, there is not a ftate'that has " not lately given us proofs of confidence " and refpecV' Still . purfuing the fame teft of fmcerity, let us examine this defenfive allegation. Will the Attorney General fay that he does not believe fuch a letter from JLord Cornwallis ever exifled ? No : For he knows that it is as Authentic as any document from India upon the table of the Houfe of Commons. What then is the letter ? The native inhabitants of this king- dom, fays Lord Cornwallis, (writing from the very fpot,) are the happieft and beft protected fubje&s in India, &c. &c. &c. The inhabitants of this kingdom ! Of what kingdom ? Why of the very kingdom which Mr. Railings had juft returned from governing for thirteen years, and for the mif-govermnent and defolation of which, he ftands every day as a criminal, or rather as a fpeftacle, before us. This is matter for ferious reflection ; and fully entitles the author to put the queftion. which immediately follows : F " Does / L 66 J " Does this authentic account of the aclmi- " niftration of Mr. Haftings, , and of the " ftate of India, correfpond with the " gloomy picture of defpotifm and deipair " drawn by the Committee of Secrecy ?" Had that picture been even drawn by the Com- mons itfelf, he would have been fully juftified in aikirtg this queftion ; but you obferve it has no bearing on it ; the laft words not only entirely deftroy that interpretation, but alfo the meaning of the very next pafiage, which is felected by the information as criminal, viz. " What credit can we give to multiplied and " accumulated charges, when we find that " they originate from mifreprefentation " and falfehood?" This paflage, which is charged as a libel on the Commons, when thus compared with its im- mediate antecedent, can bear but one conftruclion. It is impoflible to contend that it charges mif- reprefentation on the Houfe of Commons that found the impeachment, but upon the Committee of Secrecy juft before adverted to, who were fup- pofed to have felefted the matter, and brought it before the whole Houfe for judgment. I do C 6 7 ] I do not mean, as I have often told you, to vindicate any calumny on that honorable Com- mittee, or upon any individual of it, any more than upon the Commons at large; but the de- fendant is not charged by this information with any fuch offences. Let me here paufe once more to afk you, Whether the book in its genuine (late, as far as we have advanced in it, makes the fame impremon on your minds now, as when it was firft read to you in detached paifages j and whether, if I were to tear off the firft part of it which I hold in my hand, and give it to you as an entire work, the firft and laft paffages which have been fele&ed as libels on the Commons, would now appear to be fo when blended with the interjacent parts. I do not afk your anfwer. I mall have it in your verdict. The queftion is only put to direct your attention in purfuing the remainder of the volume to this main point, Is it an honeft ferious defence? For this purpofe, and as an example for all others, I will read the author's entire an- fwer to the firft article of charge concerning Cheit Sing, the Zemindar of Benares, and leave it to your impartial judgments to determine, whether it be a mere cloak and cover for the Hander imputed by the information to the con- cluding fentence of it, which is the only part attacked ; or whether, on the contrary, that con- F 2 clufion. C 68 ] clufion itfelf, when embodied with what goes before' it, does not fland explained and juftified ? " Thefirft article of impeachment, (continues " our author), is concerning Cheit Sing, the *' Zemindar of Benares. Bulwant Sing* " the father of this Rajah, was merely an " Atimll) or farmer and collector of the " revenues for Sujah ul Dowlah, Nabob- " of Oude, and Vizir of the Mogul em- *' pire. When, on the decea-fe of his^ ** father, Cheit Sing was confirmed in the ** office of collector for the Vizir, he paid " 2oo,cx>o pounds as a gift or nuzzeranah^ " and an additional rent of 30,000 pounds, ic per annum* ** As the father was no- more than an " the fon fucceeded only to his rights and " pretenfioris. But by a funnud granted " to him by the Nabob Sujah Dowlah in u September 1 773, through the influence of - " Mr. Haftings, he acquired a legal title to " property in the land, and was raifecl w from the office of Aumil to the rank of " Zemiidar. r % 3 ** Zemindar, About four years after the *' death of Bulwant Sing, the Governor " General and Council of Bengal obtained *' the fovereignty paramount of the pro- *' vince of Benares. On the transfer of 41 this fovereignty the Governor and Coun- " cil propofed a new grant to Cheit Sing, *' confirming his former privileges, and ftill occasionally ftart up in all the vigour and intelligence of infulted nature. To be go- verned at all, they muft be governed with a rod of iron ; and our empire in the Eail would over . and over again have been loft to Great Britain if civil Ikill and military prowefs had not united their efforts to fupport an authority which heaven never gave, by means which it never can fanction. Gentlemen, I think I can obferve that you are touched with this way of confidering the fubject ; and I can account for it. I have not been con- fidering it through the cold medium of books, but have been fpeaking of man and his nature, and of human dominion, from what I have feen of them myfelf arnongft reluctant nations fubmitting to our authority. I know what they feel, and howfuch feelings can alone be reprelfed. I have heard them in my youth from a naked favage, in the in- dignant character of a prince furrounded by his fubjects, addreffing the Governor of a Britifh colony, holding a bundle of flicks in his hand, as the notes of his unlettered eloquence. " Who is it," faid the jealous ruler over the de- fart encroached upon by the refdefs foot of Englilh adventure " Who is it that caufes this " river to rife in the high mountains, and to " empty itfelf into the ocean ? Who is it that 6f caufes to blow the loud winds of winter, anJ G 4 " that [ 88 ] " that calms them again in the fummer ? Who is " it that rears up the made of thefe lofty forefts, " and blafts them with the quick lightning at his " pleafure ? The fame being , who gave to you a ^ country on the other fide of the waters, and " gave our's to us; and by thistitle we will defend " it," faid the warrior, throwing down his tomo- hawk upon the ground, and raifmg the war found of his nation. Thefe are the feelings of fubju- gated man all round the globe ; and depend upon it, nothing but fear will controul where it is in vain to look for affection. Thefe reflections are the only antidotes to thofe anathemas of fuperhuman eloquence which have lately fliook thefe walls that furround us ; but which it unaccountably falls to my province, whe. ther I will or no, a little to ftem the torrent of ; by reminding you that you have a mighty fway in Afia, which cannot be maintained by the finer fympathies of life, or the practice of its charities and affections : What will they do for you when furrounded by two hundred thoufand men with artillery, cavalry, and elephants, calling upon you for their dominions which you have robbed them of r Juflice may, no dpubt, in fuch a cafe forbid the levying of a fine to pay a revolting foldiery : a treaty may (land in the way of encreafmg a tri- bute to keep up the very exiflence of the govern- ment ; and delicacy foi women may forbid all en- trance into a Zenana for money, whatever may be 'the the neceffity for taking it. Ail thefe things mull ever be occurring. But under the preflure of fucfa conftant difficulties, fo dangerous to national ho- nour, it might be better perhaps to think of effec- tually fecuring it altogether, by recalling our troops and our merchants, and abandoning our Oriental empire. Until this is done, neither reli- gion nor philoiophy can be preffed very far into the aid of reformation and pummment. If Eng- land, from a luft of ambition and dominion, will infifl on maintaining defpotic rule over xiiftant and hoftile nations, beyond all comparifon more nu- merous and extended than herfelf, and gives com- miffion to her viceroys to govern them with no other inftrudions than to preferve them, and to fecure permanently their revenues j with what colour of confiftency or reafon can me place herfelf in the moral chair, and affect to be mocked at the execution of her own orders ; adverting to the exacl: meafure of wickednefs and injuftice ne- ceifary to their execution, and complaining only of the excefs as the immorality? confidering her authority as a difpenfation for breaking the com- mands of God, and the breach of them as only punifhable when contrary to the ordinances of man. Gentlemen, fiich a proceeding begets ferious re- flections. It would be better perhaps for the mailers and the fervants of all fuch governments, to join in fupplication, that the great author of [ 90 ] of violated humanity may not confound them to* gether in one common judgment. Gentlemen, I find, as I faid before, I have not fufficient ftrength to go on with the remaining parts of the book. I hope, however, that not- withftanding my omiilions you are now compleatly fatisfied, that whatever errors or mifconceptions may have milled the writer of thefe pages, the jufti- fication of a perfon whom he believed to be in- nocent, and whofe accufers had appealed to the public, was the fingle object of his contemplation. If I have fucceeded in that object, every purpofe which I had in addreffing you has been anfwered. It only now remains to remind you, that another confideration has been fliongly prelfed upon you, and, no doubt, will be infifted on in reply. You will be told, that the matters which I have been juftifying as legal, and even meritorious, have therefore not been made the fubject of com- plaint ; and that whatever 'intrinfic merit parts of the book may be fuppofed or even admitted to pof- fefs, fuch merit can afford no j unification to the felected paffages, fome of which, even with the context, carry the meaning charged by the infor^ mation, and which are indecent animadverfions on authority. Gentlemen, to this I would anfwer (ftill pro- teiting as I do agahlft the application of any one of C 9' 1 of the innuendos,) that if you are firmly perfuaded of the finglenefs and purity of the author's inten- tions, you are not bound to fubje& him to infamy, becaufe, in the zealous career of a jufl and ani- mated compofition, he happens to have tripped with his pen into an intemperate expreflion in one or two inftances of a long work. If this fevere duty were binding on your conferences, the liberty of the prefs would be an empty found, and no man could venture to write on any fubject, how- ever pure his purpofe, without an attorney at one elbow, and a counfel at the other. From minds thus fubdued by the terrors of puniihment, there could iflue no works of genius to expand the empire of human reafon, nor any mafterly compofitions on the general nature of go- vernment ; by the help of which, the great com- monwealths of mankind have founded their efta- bliihments ; much lefs any of thofe ufeful applica- tions of them to critical conjunctures, by which, from time to time, our own conftitution, by the exertion of patriot citizens^ has been brought back to its flandard. Under fuch terrors, all the great lights of fcience and civilization muft be extinguifhed : for men cannot communicate their free thoughts to one another with a lam held over their heads. It C 92 ] It is the nature of every thing that is great and ufeful, both in the animate and inanimate world, to be wild and irregular; and we muft be con- tented to take them with their alloys which be- long to them or live without them. Genius breaks from the fetters of criticifm, but its wanderings are fanclioned by its majefty and wifdom, when it advances in its path ; fubjecl it to the critic, and you tame it into dulnefs. Mighty rivers break down their banks in the winter, fweeping away to death the flocks which are fattened on the foil that they fertilize in the fummer : T v he few may be faved by embankments from drowning, but the flock muft perifh for hunger. Tempefts occafionally make our dwellings, and diflipate our commerce ; but they fcourge before them the lazy elements, which without them would ftagnate into peftilence. In like manner, Liber tyherfelf, the laftand bed gift of God to his creatures, muft be taken juft as me is ; you may pare her down into bafhful regu- larity, and mape her into a perfect model of fevere fcrupulous law, but fhe will be liberty no longer ; and you muft be content to die under the lafh of this inexorable juftice which you have exchanged for the banner of freedom. If it be a'fked where the line to this indulgence and impunity is to be drawn ; the anfwer is eafy. The [ 93 3 'itie liberty of the prefs on general fubjefts com- prehends and implies as much ftricl obfervance of pofitive law as is confident with perfect purity of intention, and equal and ufeful fociety ; and what that latitude is, cannot be promulgated in the ab- ftract, but mufl be judged of in the particular in- flance, and confequently upon this occafion mull be judged of by you, without forming any poffible precedent for any other cafe ; and where can the judgment be poffibly fo fafe as with the members of that fociety which alone can fuffer if the writ- ing is calculated to do mifchief to the public. You muft therefore try the book by that crite- rion, and fay whether the publication was prema- ture and offenfive, or, in other words, whether the publifher was bound to have fuppreffed it until the public ear was anticipated and abufed, and every avenue to the human heart or underftanding fe- cured and blocked up. I fee around me thofe, by whom, by and by, Mr. Haftings will be moft ably and eloquently de- fended * ; but I am forry to remind my friends, that but for the right of fufpending the public judgment concerning him till their feafon of ex- ertion comes round, the tongues of angels would be infufficient for the talk. * Mr. Law, Mr. Plumer, and Mr. Dallas. Gentlemen, C 94 j Gentlemen, I hope I have now performed my duty to my client ; I fmcerely hope that I have ; for, certainly, if ever there was a man pulled the other way by his interefts and affections, if ever there was a man who mould have trembled at the fituation in which I have been placed on this occa- lion ; it is myfelf, who not only love, honour, and refpeft, but whofe future hopes and preferments are linked from free choice with thofe who, from the miftakes of the author, are treated with great fe- verity and' injuftice, Thefe are ftrong retard- ments; but I have been urged on to activity by con- fiderations, which can never be inconliftent with honourable attachments, either in the political or focial world ; the love of juftice and of liberty, and a zeal for the conftitution of my country, which is the inheritance of our pofterity, of the public, and of the world. Thefe are the motives which have animated rrie in defence of this perfon, who was an entire ftranger to me; whofe mop 1 never go to; and the author of whofe publication, as well as Mr. Haftings who is the object of it, I never fpoke to in my life. - One word more, Gentlemen, and I have done. Every human tribunal ought to take care to admi- nifter juftice, as we look hereafter to have juftice adminiftered to ourfelves. Upon the principle which C 95 3 which the Attorney General prays fentence upon my client, God have mercy upon usr Inftead of /landing before him in judgment with the hopes and confolations of Chriflians, we -muft call upon the mountains to cover us ; for which of us can prefent for omnifcient examination, a pure, un- fpotted and faultlefs courfe. But I humbly expect that the benevolent Author of our being will judge us as I have been pointing out for your example. Holding up the great volume of our lives in his hands, and. regarding the general fcope of them ; if he difcovers benevolence, charity, and good- will to man beating in the heart, where he alone can look ; if he finds that our conduct, though often forced out of the path by our infirmities, has been in general well directed; his all-fearching eye will afiuredly never purfue us into thofe little corners of our lives, much lefs will his juftice felect them for punifhment, without the general context of our exiflence ; by which faults may be fometimes found to have grown out of virtues, and very many of our heavieft offences to have been, grafted by human imperfection, upon the beft and kindefl of our affections. No, gentlemen, be- lieve me, this is not the courfe of divine juftice, or there is no truth in the Gofpels of Heaven. If the general tenor of a man's conduct be fuch as I have reprefented it, he may walk through the fhadow of death, with all his faults about him, with as much cliearfulnefs as in the common paths of life ; lecaufe he knows, that inftead of a ftern C 96 J flern accufer to expofe before the author of his nature thofe frail pafiages, which like the fcored matter in the book before you chequers the vo- lume of the brightefl and beft-fpent life, his mercy / \vi\l obfcure them from the eye of his purity, and our repentance blot them out for ever. All this would I admit be perfectly foreign, and irrelevant, if you were fitting here in a cafe of property between man and man, where a ftridl rule of law muft operate, or there would be an end in that cafe of civil life and fociety. It would be equally foreign, and ilill more irrelevant, if applied to thofe fhameful attacks upon private reputation which are the bane and difgrace of the prefs ; by which whole families have been rendered unhappy during life, by afperfions cruel, fcandalous and unjuft. Let SUCH LIBELLERS remember, that no one of my prin- ciples of defence can at any time or upon any occafion ever apply to Jlrield THEM from puniflxnent ; be- caufe fuch conduct is not only an infringement of the rights of men, as they are defined by ftiict law, but is abfolutely incompatible 'with honor, honefty, or miftaken good intention. On fuch men let the Attorney General bring forth all the artillery of his office, and the thanks and bleflings of the whole public will follow him. But [ 97 ] But this is a totally different cafe. Whatever private calumny may mark this work, it has not been made the fubject of complaint, and we have there- fore nothing to do with that, nor any right to confider it. We are trying whether the public could have been confidered as offended and endangered, if Mr. Haftings himfelf, in whofe place the author and publimer have a right to put themfelves, had, under all the circumftances which have been con- fidered, compofed and publimed the volume under examination. That queftion cannot in common fenfe be any thing refembling a queftion of LAW, but is a pure queftion of FACT, to be decided on the principles which I have humbly recom- mended. I therefore alk of the Court, that the book itfelf may now be delivered to you. Read it with attention, and as you find it pronounce your verdict. H REPLY REPLY, MR. ATTORNEY GENERAL, Gentlemen of the Jury^ MY learned friend and I (land very much con- traded with each other in this caufe. To him belong infinite eloquence, great ingenuity, and power of perfuafion, beyond that which I almofl ever knew fall to any man's mare, and a power of language greater than that which ever met my ear. In his fituation, it is not only permitted to him, but it is commendable in him, it is his duty to his client, to exert all thofe faculties, to comprehend every poffible topic that by the utmoft flretch of ingenuity can poffibly be introduced into the mod remote connection with this caufe. I on the' other hand, gentlemen, mufl difclaim thofe qua- lities which I afcribe to my learned friend namely, that ingenuity, that eloquence, and that power of words ; but if they did belong to me, we /land contrafted alfo in this circumflance, that I durfl not in my prefent fituation ufe them, whatever little [ 99 ] little effort I might make to that effect in a private caufe, and acting the part fimply of an advocate- yet ail that I mufl abandon, by recollecting the iituation in which I fland, which is not that fimply of an advocate. Gentlemen, however unworthily, fo it is, that I ftand in the fituation of, I believe I may fay, the firft officer of his Lordfhip's Court ; therefore the utmoil plain dealing, the plaineft common fenfe, and cleareil argument that I can ufe, the utmoft *bona fide's with the Court and Jury, are the duties incumbent upon me. In that fpirit therefore, gentlemen, you will not expect from me the difcharge of my duty, in any other way than by the moft temperate obfervation, and by the moft correct and the faireft reafoning in my power. One fhould have thought from the general turn of my learned friend's arguments, that I had in this information imputed it as a crime to the deceafed gentleman whom he has named, and whom I think I hardly recollect ever to have heard named before, that I had imputed it to him as an offence, merely that he reafoned in defence of Mr. Haftings ably and eloquently, as is afferted. My learned friend has faid, that I have picked out paffages here and there difconneded and dif- H 3 jointed, [ '00 ] jointed, and have omitted a vaft variety of other paflages. I hardly think that the fecond obferva- tion would have been made, had it not been for the fake of his firft, but inafmuch as I ftudioufly avoided and would infert no one fingle line that confifted of fair reafoning and defence for Mr. Haflings, inafmuch as it was no part of my duty fo to do ; he has exculpated me by faying, that loading an information with that which was not immediately to the point, was a thing which I avoided with propriety. This book, as my learned friend himfelf has defcribed it to you, and read the greater part, confifts of many different heads ; it confifts of an hiflorical narration of facts, with that I do not quarrel. It confifts of extracts from original papers, with that I do not quarrel. It confifts of arguments, of reafoning, and of very good decla* mation, with that I do not quarrel. But it con- fifts alfo of a ftain, and a deep ftain, upon your reprefentatives in Parliament, My learned friend fays that this is written with a friendly zeal for Mr. Haftings. I commend that zeal ; but at the fame time you will permit me to diftinguifh, if that could avail, between the zeal of an author for Mr. Haftings, and the cold lucrative motives of the printer of that author's work. It is the duty of that printer to have that work revifed by fome one elfe, if he has not the capacity capacity to do it himfelf, to fee that poifon does not circulate among the public. It is his bounden duty to do that ; zeal cannot excufe or exculpate the author, much lefs the mechanical printer ; though perhaps if this had been fhewn in manufcript as the work of a zealous friend, great allowance might have been made for that zeal. My learned friend, for the purpofes of argument) deviated into almoft every field that it was poffible for knowledge fuch as his for reading, ex- perience, knowledge of human nature, and every thing that belongs to it ; he has deviated into it at great length, and nine tenths of his argument confifted of it. Inftead of that, what is this queftion -the coldeft, the dulleft, the dried of all poffible queflions ; it is neither more nor lefs than this^ Whether when the great tribunal of the nation is carrying on its mo ft folemi proceeding, for the benefit and for the interefts of the nation, while that is depending, and not yet finally concluded, the accufers, the Houfe of Commons, who carry up their impeachment to the Houfe of. Lords, are ilandered by being called perfons acting from private and interefled animofity ; perfons who ftudioufly, when they find a meritorious fervant of the country come home crowned with laurels, (as it is exprefTed,) are fure to do what ? To im- peach and to ruin him. H 3 I mall t 102 ] I mall alfo ftudioufly avoid any thing refpe&ing politics or party. I fhall ftudioufly avoid any thing refpecting the conduct of any men in another place; and my learned friend will excufe me alfo, if I don't date my own. 'Thefe I avoid for this reafon, that when we are within thefe walls, we are to betake ourfelves to the true and genuine principles of our laAv and conilitution ; it is not that a pidture of oppreflion of one man is to juftify the calumniating other men ; it will juftify the defending that man, but it will not juftify a ftain upon the Houfe of Com- mons of this country. And, gentlemen, furely this author, confiderable as he is as a man acquainted with compofition, betrays himfelf the caufe of Mr. Haftings, as I mould think ; at leaft he does Mr. Haftings no fervice, by deferting and abandoning the declamation, and the reafoning of which he feems to be a confiderable mafter, and deviating into {lander and calumny upon the Houfe of Com- mons, the accufers of that gentleman. My learned friend has ufed an analogy, and he fays the Houfe of Commons is a Grand Jury ; I clofe with him in that analogy ; I afk you, as lovers of good order, as men defirous of reprefling licen- tkmmefs, as perfons who wifh that this country mould be decently and well governed, whether you \vould v endure for an inftant, if this were an information again ft a defendant, who publifhed that that a Grand Jury found that bill, not becaufe they thought it a right thing that the perfon accufed mould be put upon his trial, but that they found the indictment againft him becaufe he was meri- torious, that they did it from principles of private animofity, and not with a regard to public juftice* If an indictment was brought before you for a flander of that fort upon a Grand Jury, could you hefitate an inftant, in faying that it was repre- henfible, and a thing not to be endured ? why then, if the whole reprefentatives of the nation are acting in that capacity, if after many years fo- re ft igation they bring charges againft any indi- vidual, is it any apology, juftification it cannot be, for the author of this in his zeal for his friend, to tack to it that which muft be a difgrace to the country if it is true, and therefore muft not be circulated by any perfon whatever. The commendation which even my learned friend has beftowed upon this work, the paffionate and animated manner in which he has recom- mended it to your perufal, and that of every man in the country, moft manifeftly proves what I ftated in opening this caufe ; which was, that when fuch mifchief as this is in a book, written by a perfon of no mean abilities, it comes recommended to, and in fact mifleads the beft under it andings in the country. I leave any man to judge of what muft H 4 be C '4 ] be the mifchievous tendency of that, compared with the fquibs, paragraphs, and idle trafh of the day, which frequently die away with that day. Upon this principle certainly it was that thofe paiTages which I felected and put into this infor- mation, and which' immediately regard the Houfe of Commons, naturally gave oftence to the Houfe : they felt themfelves calumniated and af- perfed, and deferving redrefs from a Jury. My learned friend fays Why don't the Houfe of Commons themfelves punifh it ? Is that an argu- ment to be ufed in the mouth of one who recom- mends clemency ? Does he recommend the iron hand of power coming down upon a man of this fort, and not temperately, wifely, judicioufly bow to the common law of this country, and fay let hint be dealt with by that common la\v ? There he will have a fcrupuloufly impartial trial ; there he will have every advantage that the meaneft fubjecl of the country is intitled to. But, lays my learned friend, paflages are feleSed from diflant pages and tacked together j the con- text between muft explain the meaning of thofe paflages ; and he compares it to taking one half of a fentance, and tells you that if any man mould fay, there is no God, taking that part alone, he would be a blaiphemer ; taking the whole verfe, that the fool hath faid in his heart there is no God, in that feiife it becomes dire&ry the reverfe of blafphemy Now has he found any one garbled fentence L '05 ] fentence in the whole courfe of this information ? Is not every one a clear, diftinft, and feparate propofition ? On the contrary, when he himfelf accufes me, not perfonally but officially, of not having ftated the whole of this volume upon record, and under- taking to fupply my defects, he miffes this very fentence : " Aflertions fo hardy, and accufations fo " atrocious, ought not to have been in- " troduced into the preamble of an im- " peachment, before an aflembly fo refpec- " table as the Houfe of Peers, without the " cleareft and moft uncontrovertible evi- " dence. In all tranfactions of a political " nature there are many concealed move- " ments that efcape the detection of the " world ; but there are fome facts fo broad " and glaring, fo confpicuous and pro- tions ; the refult is your's and your's only. The Jury withdrew for about two hours, when they returned into Court with a Verdict folding the Defendant NOT GUILTY. MR. C 7 MR. STOCKDALE has fubjoined to the foregoing account of his Trial, the follow- ing pages, as the moft comprehenfive, as well as the lateft thing extant, on the fubject of criminal proceedings againft Libels, and the province of the Jury in trying them : a fubject which has long interefted the Public, and been the fubjecl: of frequent contro- verfy. The following argument was delivered by Mr. Erfkine, in the Court of King's Bench, on Wednefday, November ijth, 1784, in fupport of an application for a new trial for a fuppofed mifdire&ion of the Judge, * on the trial of the Dean of St. Afaph, at Shrewfbury ; the learned judge's charge to the jury, for the fuppofed error in which the application for a new trial, and the following argument in fupport of it were jnade, is not inferted : As it was only the * Sir Francis Buller, Bart. I jfual C "8 ] ufual charge in fimilar cafes, in conformity to the eftablifhed practice of the Court of King's Bench, for fome years before, viz. That the jury were bound to convict the publifher on proof of the publication, and of the meaning imputed to it by the in-^ nuendos upon the record, however innocent or even meritorious they might confider the matter publifhed, This doctrine, which did not originate with the great and venerable Earl Mansfield, but which had been adopted for fome years before his time, is queftioned by the following ar- gument, as contrary to the more ancient law of England, and was delivered in reply to others never publifhed. The doctrines how- ever contained in it were over-ruled by the judgment of the Court of King's Bench ; by which the confined province of,the jury, to the finding of the publication, and the innuendos, was again eftablifhed to be law ; the authority of which Mr. Stockdale does not prefume to difpute. The arguments however, by which the contrary ppinipn may be maintained, have U "9 ] been confidered by many of the greateft law- yers in England to be too important to be loft ; and are the rather preferred by Mr. Stockdale, as Mr. Erfkine, in his defence on his late Trial, infifted as formerly ; and not- withftanding thefe judgments to the contrary upon the right of the jury to acquit him upon what they fhould find refpecting his intention as publisher, and their opinions of what he had publiihed *. * It is worthy of remark, that after the Dean of St. Afaph had been convicted, on proof of the publication, according to the doctrine ratified as law by the Court of King's Bench, which fhut out from both Judge and Jury at the trial the quality of the thing publifhed, he was finally and completely difcharged from the profecu- tion, by a motion made by Mr. Erikine in arreft cf judg- ment. The Court unanimoufly declaring, That no Libel -was ftated on the record. Therefore, upon this princi- ple, a perlon "who has publifhed nothing criminal, may be fubjected to the expence and difgrace of a conviction by his country; becaufe, as the law ftands, a Judge cannot give his opinion on the queftion of Libel, or no Libel, at the trial we fay cannot, becaufe the opinion of any particular judge, on this important fubject, cannot be collected from his directions qn a trial for a Libel. For a judge, until the law be otherwife declared by Parlia- ment, may confider his private judgment as bound by a (cries of high and rdpectable decifions. I A ' ARGUMENT ARGUMENT IN SUPPORT OF THE RIGHTS OF JURIES. THE HON. T. ERSKINE. T AM now to have the honour to addrefs myfelf to your Lordftiip, in fupport of the rule granted to me by the Court upon Monday laft, which, as Mr. Bearcroft has truly faid, and feemed to mark the obfervation with peculiar emphafis, is a rule for a new trial. Much of my argument, accord- ing to his notion, points another way ; whether its direction be true, or its force adequate to the object, it is now my bufmefs to (hew. In rifmg to fpeak at this time, I feel all the ad- vantage conferred by the reply over thofe whofe arguments are to be anfwered ; but I feel a difad- vantage likewife which mufl fuggeil itfelf to every intelligent mind. In following the objections of fo many learned perfons, offered in different arrangements upon a - fubjecl: lo complicated and comprehenfive, there is much danger of being drawn from that method and order which can alone faflen conviction upon unwilling minds, or drive them from the fhelter which ingenuity never fails to find in the labyrinth of a defultory difcourfe. The The fenfe of that danger, and my own inability to ftruggle againft it, led me originally to deliver to the court, certain written and maturely confi- dered proportions, from the eftablifhment of which I refolved not to depart, or to be removed, either in fubftance or in order, in any ftage of the pro- ceedings, and by which I muft therefore this day unqueflionably fland or fall. Purfuing this fyftem I am vulnerable two ways, and in two ways only. Either it muft be fhewn that my proportions are not valid in law ; or ad- mitting their validity, that the learned judge's charge to the jury at Shrewfbury was not repug- nant to them : there can be no other poffible ob- jections to my application for a new trial. My duty to-day is therefore obvious and fim- plej it is, firft, to re-maintain thofe propofitions ; and then to mew, that the charge delivered to the jury at Shrewfbury was founded upon the abfolute denial and reprobation of them. I begin therefore, by faying again in my own original words, that when a bill of indictment is found, or an information filed, charging any crime or mifdemeanor known to the law of England, and the party accufed puts himfelf upon the coun- try by pleading the general iffue, not guilty : the jury are GENERALLY charged with his delive- rance from 'that CRIME, and not SPECIALLY from the fatt or facls, in the commiffion -of which the indi&ment or information charges the crime to confift [ 'i*3 J confift ; much lefs from any fmgle fad, to the exclufion of others charged upon the fame record. Secondly, That no act which the law in its ge- neral theory holds to be criminal, conftitutes in itfelf a crime abftracted from the mifchievous in- tention of the actor. And that the intention, even where it becomes a fmiple inference of legal reafon from a fact or facts eftablifhed, may, and ought to be collected by the jury, with the judge's affift- ance. Becaufe the act charged, though eftablimed as a fact in a trial on the genera! iffiie, does not ne- ceflarily and unavoidably eftablifti the criminal in- tention by any ABSTRACT conclufion of law; the eftablimment of the fact being ftill no more than full evidence of the crime, but not the crime itfelf; unlefs the jury render it fo themfelves, by refer- ring it voluntarily to the court by fpecial verdict. Thefe two proportions, though worded with cautious precifion, and in technical language, to prevent the fubtlety of legal dirputation in oppofi- tion to the plain underftanding of the world, nei- ther do nor were intended to convey any other fen- timent than this, viz. that in all cafes where the law either directs or permits a perfon accufed of a crime to throw himfelf upon a jury for deliverance, by pleading generally that he is not guilty ; the jury, thus legally appealed to, may deliver him from the accufation by a general verdict of ac- quittal (founded as in common-fenfe it evi- dently mull be) upon an investigation as general and C 124 ] and comprehenfive as the charge itfelf from which it is a general deliverance. Having faid this, I freely confefs to the Court, that I am much at a lofs for any further illuftration of my fubject ; becaufe I cannot find any matter by which it might be further illuftrated, fo clear, or fo indifputable, either in fact or in law, as the very propofition itfelf which upon this trial has been brought into queftion< Looking back upon the ancient conftitution, and examining with painful reiearch the original iurifdidtions of the country,. I am utterly at a lofs to imagine from what fources thefe novel limita- tions of the rights of juries are derived. Even the bar is not yet trained to the difcipline of maintain- ing them. My learned friend, Mr. Bearcroft, fo- lemnly abjures them : he repeats to-day what he avowed at the trial, and is even jealous of the im- putation of having meant lefs than he expreifed ; for, when fpeaking this morning of the right of the jury to jud<;e of the whole charge, your lordfhip corrected his expreffion, by telling him he meant the power, and not the rigbf ; he caught inftantly at your words, difavowed your explanation,- and A with a confiftency which does him honour, de- clared his adherence to his original admiffion in. its full and obvious extent. " I did not mean," faid he, " merely to ac- " knowledge that the jury h-ave the power ; for " their C "5 ] * ( their power nobody ever doubted ; and, if a " judge was to tell them they had it not, they " would only have to laugh at him, and convince " him of his error, by finding a general verdict " which muft be recorded : I meant, therefore, to " confider it as a right, as an important privilege, " and of great value to the conftitution." Thus Mr. Bearcroft and I are perfectly agreed ; I never contended for more than he has voluntarily conceded. I have now his exprefs authority for repeating, in my own former words, that the jury have not merely the power to acquit, upon a view of the whole charge, without controul or punilh- inent, and without the poffibility of their acquittal being annulled by any other authority ; but that they have a conftitutional legal right to do it ; a right Jit to be exercifed ; and intended by the wife foun- ders of the government, to be a protection to the lives and liberties of Englifhmen, againft the en- croachments and perverfions of authority in the hands of fixed magiftrates. But this candid admimon on the part of Mr. Bearcroft, though very honourable to himfelf, is of no importance to me, fince, from what ha* already fallen from your lordfhip, I am not to ex- pect a ratification of it from the court ; it is there- fore my duty to eftablilh it. I feel all the import- ance of my fubject, and nothing mall lead me to- day to go out of it- I claim all the attention of the the Court, and the right to ftate every authority which applies in my judgment to the argument, without being fuppofed to introduce them for other purpofes than my duty to my client, and the con- flitution of my country warrants and approves. It is not very ufual, in an Englifh court of juf- tice, to be driven back to the earliefl hiflory and original elements of the conftitution, in order to eflablifh the frrft principles which mark and dif- tinguifh Englifh law: they are always afiumed, and, like axioms in fcience, are made the founda- tions of reafoning without being proved. Of this fort our anceftors, for many centuries, muft have conceived the rigjit of an Englifh jury to decide upon every queflion which the forms of the law fubmitted to their final decifion ; fince, though they have immemorially exercifed that fupreme jurifdi&ion, we find no trace in any of the an- cient books of its ever being brought into quef- tion. It is but as yefterday. when compared with the age of the law itfelf, that judges, unwarranted by any former judgments of their predeceflbrs, with- out any new commiffion from the Crown, or en- largement of judicial authority from the legiflature, have fought to fatten a limitation upon the rights and privileges of jurors, totally unknown in anci- ent times, and palpably deftrudive of the very end and object of their infiitution. No C "7 ] No fact, my Lord, is of more eafy demonftra- tion ; for the hiftory and laws of a free country lie open even to vulgar infpection. During the whole Saxon sera, and even long after the eftablifhment of the Norman government, the whole adminiftration of juftice, criminal and civil, was in the hands of the people themfelves, without the controul or intervention of any judicial authority, delegated to fixed magiflrates by the crown. The tenants of every manor adminiftered civil juftice to one another in the court-baron of their Lord ; and their crimes were judged of in the leet, every fuitor of the manor giving his voice as a juror, and the lleward being only the regifter, and not the judge. On appeals from thefe domeflic jurifdicrions to the county-court, and to the torn of the fheriff, or in fuits and profecutions originally commenced in either of them, the fheriff 's authority extended no further than to fummon the jurors, to compel their attendance, minifterially to regulate their proceedings, and to enforce their decifions ; and even where he was fpecially empowered by the King's writ of jufticies to proceed in cauies of fuperior value, no judicial authority was thereby conferred upon himfelf, but only a more enlarged jurifdiclion ON THE JURORS who were to try the caufe mentioned in the writ. It It is true that the fheriff cannot now intef- meddle in pleas of the crown, but with this exception which brings no reftrictions on juries^ thefe jurisdictions remain untouched at this day ; intricacies of property have introduced other forms of proceeding, but the conftitution is the fame. This popular judicature was not confined to parti- cular diftricts, or to inferior fuits and mifdemeanors,, but pervaded the whole legal conftitution ; for, when the Conqueror, to increafe the influence of his crown, erected that great fuperintending court of juftice in his own palace, to receive appeals criminal and civil from every court in the kingdom, and placed at the head of it the Capitalis jufticianus totitts Anglia, of whofe original authority the chief juftice of this court is but a partial and feeble emanation : even that great magiftrate was in the aula regis merely minifterial ; every one of the king's tenants who owed him fervice in right of a barony, had a feat and a voice in that high tribunal ; and the office of jufticiar was but to record and to enforce their judgments. In the reign of King Edward the Firft, whett this great office was abolished, and the prefent courts at Weftminfter eftablifhed by a diftribution of its powers ; the barons preferved that iupreme fuperintending jurifdi&ion which never belonged to r 149 T tb the jufticiar, but to themfelves only as the jurors in the king's court : a jurifdi&ion which, when nobility from being territorial and feodal became perfonal aad honorary, was afuirned and exercifed by the peers of England, who, without any delegation of judicial authority from the crown, form to this day the fupreme and final court of .Englifh law. judging in the laft refort for the whole kingdom, and fitting upon the lives of the peerage, in their ancient and genuine character, as the pares of one another* When the courts at Weftminfter were eftabliflied HI their prefent forms, and when the civilization and commerce of the nation had introduced more intricate queftions of juflice, the judicial authority in civil cafes could not but enlarge its bounds ; the rules of property in a cultivated ftate of fociety became by degrees beyond the compafs of the unlettered multitude, and in certain well- known reflriftions undoubtedly fell to the judges ; yet more perhaps from necemty than - by confent, as all judicial proceedings were artfully held in the Norman language, to which the people were fir angers. Of thefe changes in judicature, immemorial cuftom, and the acquiefcence of the legiflature, is the evidence, which eftablifh the jurifdiclion of the courts on the true principles of Englifh law, and meafure the extent of it by their ancient practice. K But C '3 3 But no fuch evidence is to be found of any the leaft relinquifhment or abridgment of popular judicature in cafes of crimes ; on the contrary, every page of our hiftory is filled with the ftruggles of our anceftors for its prefervation. The law of property changes with new objects, and becomes intricate as it extends its dominion j but crimes muft ever be of the fame eafy invefti- gation : they confift wholly in intention, and the more they are multiplied by the policy of thofe who govern, the more abfolutely the public free- dom depends upon the people's preferving the entire admiaiftration of criminal juftice to them- felves. In a queftion of property between two private individuals, the crown can have no poflible interefl in preferring the one to the other : but it may- have an interefl in crufhing both of them together in defiance of every principle of humanity and juftice, if they mould put themfelves forward ia a contention for public liberty againft a govern- ment feeking to emancipate itfelf from the do- minion of the laws. No man in the leafl ac- quainted with the hiftory of nations, or of his own country, can refufe to acknowledge, that if the adminiftration of criminal juftice were left in the hands of the crown, or its deputies, no greater freedom could poffibly exift than government might choofe to tolerate from the convenience or policy of the day. My My Lord, this important truth is no difcovery or afiertion of mine, but is to be found in every book of tjie law : whether we go up to the moft ancient authorities, or appeal to the writings of men of our own times, we meet with it alike in the moft emphatical language. Mf. Juftice Blackftone, by no means biaifed towards demo- cratical government, having, in the third volume of his Commentaries, explained the excellence of the trial by jury in civil cafes, exprefles himfelf thus : vol. 4. p. 349. " But it holds much " ftronger in criminal cafes ; fmce in times of " difficulty and danger, more is to be appre- " hended from the violence and partiality of " judges appointed by the crown, in fuits be- " tween the king and the fubject, than in dif- " putes between one individual and another, to " fettle the boundaries of private property. Our " law has, therefore, wifely placed this ftrong " and twofold barrier of a prefentment and trial " by jury, between the liberties of the people " and the prerogative of the crown: without " this barrier, juftices of oyer and terminer named " by the crown, might, as in France or in " Turkey, imprifon, difpatch, or exile, any man " that was obnoxious to government, by an in- " ftant declaration that fuch was their will and " pleafure. So that the liberties of England " cannot but fubfift fo long as this palladium " remains facred and inviolate, not only from " all open attacks, which none will be fo hardy K 2 as C '3 3 " as to make, but alfo from all fecret machi- " nations, which may fap and undermine it." But this remark, though it derives new force in being adopted by fo great an authority, was no more original in Mr. Juftice Blackftone than in me, for the fame exprefs reafon : for the in- ftitution and authority of juries is to be found in Brafton, who wrote above five hundred years before him. " The curia and the pares," fays he, " were neceifarily the judges in all cafes < of life, limb, crime and difherifon of the heir " in capite. The king could not decide, for " then he would have been both profecutor and " judge ; neither could his juftices, for they re- " prefent him *." Notwithstanding all this, the learned judge was pleafed to fay at the trial, that there was no difference between civil and criminal cafes. I fay, on the contrary, independent of thefe au- thorities, that there is not, even to vulgar ob- fervation, the remoteft fimilitude between them. There are four capital distinctions between profecutions for crimes, and civil actions, every one of which deferves confideration. * Vide likewise Mr. Reeves' very ingenious Hiilory of the Engli/h law. C '33 ] Firft, In the jurifdidion necefiary to found the charge. Secondly. In the manner of the defendant's pleading to it. Thirdly, In the authority of the verdift which difcharges him. Fourthly, In the independence and fecurity of the jury from all confequences in giving it. As to the firft, it is unnecefiary to remind your Lordmips, that, in a civil cafe, the party who conceives himfelf aggrieved, ftates his complaint to the court, avails himfelf at his own pleafure of its procefs, compels an anfwer from the de- fendant by its authority, or taking the charge pro confejjo againft him on his default, is intitled to final judgment and execution for his debt, with- out any interpofition of a jury. But in criminal cafes it is otherwiie ; the court has no cogni- zance of them, without leave from the people forming a grand inqueft. If a man were to com- mit a capital offence in the face of all the judges of England ; their united authority could not put him upon his trial : they could file no complaint againft him, even upon the records of the fu- preme criminal court ; but could only commit him for fafe cuftody, which is equally competent to every common juftice of the peace : the grand jury alone could arraign him, and in their di K 3 cretion C '34 ] cretion might likewife finally difcharge him, by throwing out the bill, with the names of all your Lordfhips as witnefles on the back of it. If it fliall be faid, that this exclufive power of the grand jury does not extend to leffer mifde- meanors, which may be profecuted by informa- tion ; I anfwer, that for that very reafon it be-, comes doubly neceflary to preferve the power of the other jury which is left. But, in the rules of pleading, there is no dif- tinctJon between capital and lefler offences ; and I venture to affert, that the defendant's plea of not guilty, which univerfally prevails as the legal anfwer to every information or indictment, as op- pofed to fpecial pleas to the court in civil actions ; and the neceility impofed upon the crown to join the general iflue, is abfolutely decifive of the pre^- fent queflion, Every lawyer mufl admit, that the rules of pleading were originally eftablifhed to mark and to preferve the diftinct jurifdictions of the court and the jury, by a feparadon of the law from the fact wherever they .were intended to be feparated. A perfon charged with owing a debt, or having committed a trefpafs, &c. &c. if he could not deny the facts on which the actions were founded, was obliged to fubmit his justification for matter of law by a fpecial plea to the court upon the record j to which plea the plaintiff might demur, and C '35 ] and fubmit the legal merits to the judges. By this arrangement, no power was ever given to the jury, by an iflue joined before them, but when a right of decifion, as comprehenfive as the iflue went along with it : for, if a defendant in fuch civil actions pleaded the general iflue inftead of a fpecial plea, aiming at a general deliverance from the charge, by fliewing his juftification to the jury at the trial ; the court protected its own- jurifdiction, by refufmg all evidence of the fads on which fuch juftification was founded. The extenfion of the general iflue beyond its ancient limits, and in deviation from its true prin- ciple, has introduced fome confufion into this fimple and harmonious fyilem j but the law is fubftantially the fame. No man, at this day, in any of thofe actions where the ancient forms of our jurifprudence are ftill wifely preferved, can poilibly get at the opinion of a jury upon any queftion not intended by the conftitution for their decifion. In actions of debt, detinue, breach of covenant, trefpafs, or replevin, the defendant can only fubmit the mere fact to the jury ; the law muft be pleaded to the court : if, dreading the opinion of the judges, he conceals his juftification under the cover of a general plea in hopes of a more favourable con- ftruction of his defence at the trial ; its very ex- iftence can never even come within the knowledge of the jurors j every legal defence muft arife out of K 4 f *st ] facts, and the authority of the judge is interpofed, to prevent their appearing before a tribunal which, in fuch cafes, has no competent jurifcliction over them. By impofing this neceflity of pleading every legal jultincation to the court, and by this ex- clufion of all evidence on the trial beyond the negation of the fact, the courts indifputahly in- tended to eftablifh, and did in fact effectually fecure the judicial authority over legal queftions from all encroachment or violation; and it is impoffible to find a reafon in law, or in common- fenfe, why the fame boundaries between the faft and the law mould not have been at the fame time extended to criminal cafes by the fame rules of pleading, if the jurisdiction of the jury had been defigned to be Iimite4 to the fact as in civil actions. But no fuch boundary was ever made or at- tempted ; on the contrary, every perfon charged with any crime by an indictment or information, has been in all times from the Norman conqueft to this hour, not only permitted, but even bound to throw hirnfelf upon his country for deliverance, "by the general plea of not guilty ; and may fubmit his whole defence to the jury, whether it be a negation of the fatt, or a justification of it in law : and the judge has no authority as in a civil cafe, to refufe fuch evidence at the trial, as out of the iiiue, and as coram non judice^ an authcr- rity [ '37 ] rity which In common fenfe he certainly would have, if the jury had no higher jurifdiction in the one cafe than in the other. The general plea thus fanctioned by immemorial cuftom, fo blends the law and the fact together, as to be infeparable but by the voluntary act of the jury in finding a fpecial verdict : the general inveftigation of the whole charge is therefore before them, and al- though the defendant admits the fact laid in the information or indictment, he, neverthelefs, under his general plea, gives evidence of others which are collateral, referring them to the judg- ment of the jury, as a legal excufe or juftification, and receives from their verdict a compleatj ge^ neral, and conclufive deliverance. Mr. Juftice Blackftone, in the fourth volume of his Commentaries, page 339, fays, " The " traiterous or felonious intent are the points " and very gift of the indictment, and mud be " anfwered directly by the general negative, not " guilty, and the jury will take notice of any d fuch facts, the killing of the deceafed appears to be with malice prepenfe : but if you do not believe them, then you ought to find him guilty of manflaughter j and the jury may, [ 144 ] inay, if they think proper^ give a general verdict of murder or manflaughter : but if they decline giving a general verdict, and ivill find the fads fpecially, the court is then to form their judg- ment from the facts found, whether the de- fendant be guilty or not guilty, /. e. whether the acl: was done with malice arid deliberation of not." Surely language can exprefs nothing more* plainly or unequivocally, than that where the general iflue is pleaded to an indictment, the law and the fad are both before the jury ; and that the former can never be feparated from the latter, for the judgment of the court, unlefs by their own fpontaneous at : for the wofds are, " If " they decline giving a general verdict, and will " find the facts fpecially, the court is THEN to " form their judgment from the facts found." So that after a general iffue joined, the authority of the court only commences when the jury choofes to decline the decifion of the law by a general verdit ; the right of declining which legal determination, is by-the-by a privilege conferred on them by the ftatute of Weftminfter, sd, and by no means a 'reftrittion of their powers. But another very important view of the fubjecl: remains behind : for fuppofmg I had failed in eftablilhing that contraft between criminal and civil cafes, which is now too clear not only to C us ] to require, but even to juftify another obfervatiofl* the argument would lofe nothing by the failure ; the fimilarity between criminal and civil cafes derives all its application to the argument from the learned judge's fuppofition, that the jurifdiction of the jury over the law was never contended for in the latter, and confequently on a principle of equality could not be fupported in the former ; whereas, I do contend for it, and can incon- teflibly eftablifh it in both. This application of the argument is plain from the words of the charge : " If the jury could find the law, it would " undoubtedly hold in civil cafes as well as cri- " minal: but was it ever fuppofed that a jury " was competent to fay the operation of a fine, " or a recovery, or a warranty, which are mere < queftions of law ?" To this queftion I anfwer, that the competency of the jury in fuch cafes is contended for to the full extent of my principle, both by Lyttleton and by Coke: they cannot indeed decide upon them, de piano, which, as Vaughan truly fays, is unintelligible, becaufe an unmixed queftion of law can by no poflibility come before them for decifion; but whenever (which very often happens) the operation of a fine, a recovery, a warranty, or any other record or conveyance known to the law of England comes forward^ mixed with the fad on the general iffue, the jury have then mod unqueftionably a right to determine it - 9 and what is more, no other autho- L fity C r 4 6 j - my poffibly can j becaufe when the general ilTuc rs permitted by law, thefe queftions cannot appear on the record for the judgment of the court, and 1 although it can grant a new trial, yet the fame queftion mufl ultimately be determined by another jury. This is not only fell-evident to every lawyer, but, as I faid, is exprefsly laid down by Lyttleton in the 368th fectien. " Alfo in fucli " cafe where the inquefl may give their verdict " at large, if they will take upoa them the " knowledge of the law upon the mat- " ter, they may give their verdrct generally cc as it is put in their charge : as in the cafe " aforefaid they may well fay, that the leflbr did " not diffeife the leifee if they will." Coke, in kis commentary on this fecHon, confirms Lyt- tleton, faying, That in doubtful cafes they mould find fpecially for fear of an attaint; and it is plain that the ftatute of Weftminiter the ad r was made either to give or to confirm the right of the jury to find, the matter fpecially if they . would, leaving their jurifdiction over the law as it flood by the common law. The words of the itatute of Weftminiter 2d, chapter 3o.th, are, ; " Ordmatum eft quod juiliciarii ad affizas capi- " endias aflignati, non compeilant juratores dicere 4i precife fi fit deflma vel non j dummodo dicere. u voluerint veritatem faU et petere a.uxiliuni. From thcfe words it mould appear, that the jurifdiction of the jury over the law when it came before. t 14? i before thenl on the general iflue, was fd veiled in them by the conftitution, that the exercife of it in all cafes had been confidered to be compul- fory upon them, and that this act was a legiflative relief from that compulfion in the cafe of an affize of dilTeizin : it is equally plain from the remaining words of the acl, that their jurifdiction remained as before ; " fed fi fponte velent diciere " quod difleifma eft vel non, admittatur eorum " veredictum fub fuo periculo." But the moft material obfervation upon this flatute as applicable to the prefent fubject,is, That the terror of the attaint from which it was pafled to relieve them, having (as has been fhewn) no exiftence in cafes of crime, the a6t only ex- tended to relieve the jury at their difcretion from finding the law in civil aclions ; and confequently it is only from cuftom, and not from pofitive law, that they are not even compellible to give a general verdift involving a judgment of law on every criminal trial. Thefe principles and authorities certainly eftablifh that it is the duty of the judge on every trial v.'here the general iflue is pleaded, to give to the jury his opinion on the law as applied to the cafe before them ; and that they mufl find a general verdict comprehending a judgment of law, unlefs they chooie to refer it ipeciaUy to the court. L 3 But C -48 3 But we are here, in a cafe where it is con- tended, that the duty of the judge is the di- rect contrary of this : that he is to give no opinion at ail to the jury upon the Jaw as applied to the eafe before them ; that they likewife arc to refrain from all confideration of it, and yet that the very fame general verdict comprehending both fact and law, is to be given by them as if th whole legal matter had been fummed up by the one and found by the other. I confefs I have no organs to comprehend the principle on which fuch a practice proceeds. I contended for nothing more at the trial than the very practice recommended by Forfter and Lord Raymond : I addrefled myfelf to the jury tipon the law with all poflible refpect and de- ference, and indeed with very marked perfonal attention to the learned judge : fo far from urging the jury dogmatically to think for them- felves without his conftitutional amftance, I called for his opinion on the queflion of libel, faying,. That if he mould tell them diftinctly the paper indicted was libellous, though I fhould not admit that they were bound at all events to give effect to it if they felt it to be innocent ; yet I was ready to agree that they ought not to go againfl the charge without great confideration : but that if he mould fhut himfelf up in filence, giving no opinion at all upon the criminality of the paper from which alone any guilt could be faf- rcned on the publifher, and fhould narrow their con- t J 49 3 confederation to the publication, I entered my proteft againft their finding a verdict affixing the fpithet oiF guilty to the mere fact of publifhing a paper, the guilt of which they had not invef- tigated. If, after this addrefs to the jury, the learned judge had told them, that in his opinion the paper was a libel, but ilill leaving it to their judgments, and leaving likewife the defendant's evidence to their confideration, had further told them, that he thought it did not exculpate the publication ; and if, in confequence of fuch di- rections, the jury had found a verdict for the crown, I mould never have made my prefent motion for a new trial : becaufe I mould have confidered fuch a verdict of guilty as founded upon the opinion of the jury on the whole matter as left to their confideration, and mufl have fought my remedy by arreft of judgment on the record. But the learned judge took a direct contrary courfe : he gave no opinion at all on the guilt or innocence of the paper ; he took no notice of the defendant's evidence of intention ; told the jury, in the moll explicit terms, that neither the one nor the other were within their jurifdiction ; and upon the mere fact of publication directed a general verdict comprehending the epithet of guilty, after having exprefsly withdrawn from the j:ury every confideration of the merits of the L 3 paper C paper publimed, or the intention of the publiflier,, from which it is admitted on all hands the guilt of publication could alone have any ex* iflence. My motion is therefore founded upon this ob- vious and fimple principle ; that the defendant has had in fad no trial ; having been found guilty without any investigation of his guilt, and without any power left to the jury to take cog- nizance of his innocence. I undertake to mew, that the jury could not poffibly conceive or believe from the judge's charge, that they had any jurifdiction to acquit him, however they might have been imprefied even with the merit of the publication, or convinced of his meritorious, intention in publiming it: nay, what is worfe, while the learned judge totally deprived them of their whole jurifdiction over the queftion of libel and the defendant's feditious intention, he at the fame time directed a general verdict of guilty, which comprehended a judgment upon, both. When I put this construction on the learned judge's direction, I found myfelf wholly on the language in which it was communicated ; and it will be no anfwer to iuch coi'Itruction, that no. fuch reftraint was meant to be conveyed by it. If the learned judge's intentions were even the direct contrary of his expreflions, yet if in con- fequence of that which was exprefled though not C 3' 1 jxst intended, die jury were abridged :of a jurif- diclion which belonged to them by law, and in the exercife of which the defendant had an in- tereft, he is equally a fufferer, and the verdict given under fuch mifconception of authority is .equally void : my application ought therefore to Hand or fall by the charge itfelf, upon which I dii'claim all difmgenuous cavilling. I am cer- tainly bound to mew, that from the general refult of it, fairly and liberally interpreted, the jury could not conceive that they had any right to extend their confideration beyond the bare tact of publication, fo as to acquit the defendant by a judgment founded on the legality of the dialogue, or .the honeity of the intention in pub- Jifhing it. In order to underfland the learned judge's direction, it muft be recollected that it was ad- tdreffed to them in anfwer to me, who had con- tended for nothing more than that thefe two tconfiderations ought to rule the verdict ; 'and it will be feen, that the charge, on the contrary, not only excluded both of them by general in- ference, but by expreffions, arguments, and illuf- t rations thi? mod fludioufly felected to convey that .exclufion, and to render it binding on the con- fclences of the jury. After telling them in the very beginning of Jiis charge, that the fmgle queflion for their decifioa was, Whether the defendant had pub- L 4 Ufhed C 5 3 limed the pamphlet ? he declared to them, that it was not even allowed to him, as the judge trying the caufe, to fay whether it was or was not a libel : for that if he fliould fay it was no libel, and they following his direction mould ac- quit the defendant; they would thereby deprive the profecutor of his writ of error upon the record, which was one of his dear eft birthrights. The law, he faid, was equal between the profe- cutor and the defendant ; that a verdict of ac- quittal would clofe the matter for ever, depriving him of his appeal ; and that whatever therefore was upon the record was not for their decifwn^ but might be carried at the pleafure of either party to the Houfe of Lords. Surely language could not convey a limitation upon the right of the jury over the queflion of libel, or the intention of the publifher, more pofitive or more univerfal. It was pofitive, inaf- much as it held out to them that fuch a jurif- diction could not be entertained without injultice ; and it was univerfal becaufe the principle had no fpecial application to the particular circumftances of that trial ; but fubjeded every defendant upon every profecution for a libel, to an inevitable conviction on the mere proof of publishing any things though both judge and jury might be con- vinced that the thing publifhed was innocent and even meritorious. My. I 153 1 My Lord, I make this commentary without .the hazard of contradiction from any man whofe .reafon is not difordered. For if the profecutor in every cafe has a birthright by law to have the queftion of libel left open upon the record, which it can only be by a verdict of conviction on the fmgle fact of publifhing ; no legal right can at the fame time exift in the jury to mut out that rmeftion by a verdict of acquittal founded upon the merits of the publication, or the innocent mind of the publilher. Rights that are repugnant and contradictory cannot be co-exiftent. The jury can never have a conftitutional right to do an act beneficial to the defendant, which when done deprives the profecutor of a right which trie fame conflitution has vefted in him. No right can belong to one perfon, the exercife of which in every inftance muft neceflarily work a wrong to another. If the profecutor of a libel has in every inftance the privilege to try the merits of his profecution before the judges, the jury can have no right in any inftance to preclude his appeal to them by a general verdict for the defendant. The jury therefor^ from this part of the charge muft neceffarily have felt themfelves abfolutely limited (I might fay even in their powers) to the fact of publication ; becaufe the higheft re- straint upon good men is to convince them that rhey cannot break loofe from it without injuftice : and C '54 3 and the power of a good citizen is never more effectually deftroyed than when he is made to believe that the exercife of it will be a breach of his duty to the public, and a violation of the laws of his country. But fmce equal juftice between the profecutor and the defendant is the pretence for this abridg- ment of jurifdidion, let us examine a little how it is effeded by it. Do the profecutor and the defendant really ftand upon an equal footing by this mode of pro- ceeding ? with what decency this can be alledged,. I leave thofe to anfwer who know that it is only by the indulgence of Mr. Bearcroft, of counfel for the profecution, that my reverend client is not at this moment in prifon *, while we are, difcuffing this notable equality. Befides, my Lord, the judgment of this court, though not final in the conftitution, and therefore not binding on the profecutor, is abfolutely con- clufive on the defendant. If your Lordmips pro- nounce the record to contain no libel, and arrefi the judgment on the verdicl, the profecutor may carry it to the Houfe of Lords -j and pending his v Lord Mansfield ordered the Dean to he committed on the mo- lion for the new trial, and faiH, he had no difcretion to iuffer hun to be at large, without content, after his appearance in court, on con- vjciion. Upon which, Mr. Bearcroft gaye his confent that the De:m ihouki remain *c large wpcc bail. C '55 3 tmt of error rlmains untouched by your Lord- frip's decifion. But, if judgment be againft the defendant, it is only at the difcretion of the crown (as it is faid) and not of right, that he can pro- fecute any writ of error at all ; and even if he finds no obftruction in that quarter, it is but at the beft an appeal for the benefit of public li- berty, from which he himfelf can have no per- fonal benefit ; for the writ of error being no fu- perfedeas, the punimment is inflicted on him in, the mean time. In the cafe of Mr. Home, this court impri- (bned him for publifhing a libel upon its own judgment, pending his appeal from its juftice ; and he had fuffered the utmoft rigour which the law impofed upon him as a criminal, at the time that the Houfe of Lords, with the affiftance of the twelve judges of England, were gravely af- fembled to determine, whether he had been guilty of any crime. I do not mention this cafe as hard or rigorous on Mr. Home, as an indi- vidual : it is the general courfe of practice, but furely that practice ought to put an end to this argument of equality between profecutor and pri- foner. It is adding infult to injury, to tell an innocent man who is in a dungeon pending his writ of error, and of whofe innocence, both judge and jury were convinced at the trial ; that he is in equal fcales with his profecutor, who is at large, becaufe C '5* 1 faecaufe he has an opportunity of deciding after the expiration of his punifhment, that the pro- fecution had been unfounded, and his furfering* unjuft. By parity of reafoning, a prifoner m a capital cafe is to be hanged in the mean time for the- benent of equal juftice ; leaving his executors to fight the battle out with his profecutor upon the tecord, through every court in the kingdom : by which at laft his attainder muft be reverfed, and the blood of his pofterity remain uncorrupted. What juftice can be- more impartial or equal I So much for this right of the profecutor of a libel to compel a jury in every cafe, generally to convia a defendant on the faft of publication, or to find a fpecial verdia. A right unheard of before fmce the birth of the conftitution ; not even founded upon any equality in faa, even if fucn a mocking parity could exift in law, and not even contended to exift in any other cafe where private men become the profecutors of crimes for the ends of public juftke. It can have, generally fpeaking, no exiftence in any profecution for felony ; becaufe the ge- neral defcription of the crime in fuch indiaments, for the moft part, fliuts out the legal queftion in the particular inftance, from appearing on the record : and for the fame reafon, it can have noplace even in appeals of death, &c. the only cafes C '57 3 cafes where prqfecutors appear as the revengers of their own private wrongs, and not as the reprefen- tatives of the crown. The learned judge proceeded next to eftablifli the fame univerfal limitation upon the power of the Jury, from the hiftory of different trials, and the practice of former judges who prefided at them. And while I am complaining of what 1 conceive to be injuftice, I mint take care not to be unjuft myfelf. I certainly do not, nor ever did confider the learned judge's mifdireclion in his charge to be peculiar to himfelf : it was only the refiftance of the defendant's evidence, and what pafied after the jury returned into court with the verdicl, that I ever confidered to be a departure from all precedents : the reft had undoubtedly the fan&ion of feveral modern cafes ; and I with, therefore, to be diftinctly underftood, that I partly found my motion for a new trial in oppofition to thefe decifions. It is my duty to ijpeak with de- ference of all the judgments of this court ; and I feel an additional refpecl: for fome of thofe I am about to combat, becaufe they are your Lord- fhip's : but comparing them with the judgments of your predeceffors for ages, which is the higheft evidence of Englifh law, I muft be forgiven if I prefume to queftion their authority. My Lord, it is necefTary that I mould take notice of fome of them as they occur in the learned judge's [ "5 3 judge's charge; for although he is not refponfiblc for the rectitude of thofe precedents which he only cited in fupport of it, yet the defendant is un- queftionahly entitled to a new trial, if their prin- ciples are not ratified by the court : for whenever the learned judge cited precedents to warrant the limitation on the province of the jury impofed by his own authority, it was fuch an adoption of the dodrines they contained, as made them a rule to the jury in their decifion. Firft then, the learned judge, to overturn my argument with the jury for their jurifdi&ion over the whole charge, oppofed your Lordmip*s eftablimed practice for eight and twenty years ; and the weight of this great authority was en- creafed by the general manner in which it was ftated ; for I find no expremons of your Lordmip's in any of the reported cafes which go the length contended for. I find the practice, indeed, fully warranted by them ; but I do not meet with the principle which can alone vindicate that practice, fairly and diftinctly avowed. The learned judge, therefore, referred to the charge of chief juflice Raymond, in the cafe of the King and Franklin, in which the univerfal limitation contended for, is indeed laid down, not only in the moft unequivocal expreffions, but the ancient jurifdiction of juries, reding upon all the authorities I have cited, treated as a ridiculous notion which had been juft taken up a little before the year 1731 5 and which no L '59 3 no man living had ever dreamt of before. The learned judge obferved, that Lord Raymond ilated to the jury on Franklin's trial, that there were three queftions : the firft was, the fad of publiming the Craftfman. Secondly, whether the averments in the information were true : but that the third, viz. whether it was a libel, was merely a queftion of law witH which the jury had nothing to do 9 as had been then of late thought by fome people who ought to have known better. This direction of Lord Raymond's was fully ra- tified and adopted in all its extent, and given to the jury, on the prefent trial, with feveral others of the fame import, as an unerring guide for their conduct ; and furely human ingenuity could not frame a more abftract and univerfal limitation upon their right to acquit the defendant by a general verdict ; for Lord Raymond's expreffions amount to an abfolute denial of the right of the jury to find the defendant not guilty, if the publi- cation and innuendos are proved. " Libel or no " libel, is a queftion of law with which you, the " jury, have nothing to do" How then can they have any right to give a general verdict confidently with this declaration ? can any man in his fenfes collect: that he has a right to decide on that with \vhich he has nothing to do? fions But it is needlefs to comment on trrefe expref- :, for the jury were likewife told by the learned judge [ Ifo J judge himfelf, that if they believed the fact of pub- lication, they were bound to find the defendant guilty; and it will hardly be contended, that a man has a right to refrain from doing that which he is bound to do. Mr. Cowper, as cotmfel for the profecutlon, took upon him to explain what was meant by this ex- preffion ; and I feek for no other conftruclion : " The learned judge (faid he) did not mean to " deny the right of the jury, but only to convey, " that there was a religious and moral obligation " upon them to refrain from the exercife of it. J * Now, if the principle which impofed that obli- gation had been alledged to be fpecial, apply- ing only to the particular cafe of the Dean of St. Afaph, and confequentty confiilent with the right of the jury, to a more enlarged jurifdi&ion in other inflances : telling the jury that they were bound to convift on proof of publication, might be plaufibly conftrued into a recommendation to re- frain from the exercife of their right in that cafe, and not to a general denial of its exiftence: but the moment it is recolleded, that the principle which bound them was not particular to the inftance, but abftraft, and univerfal, binding alike in every profecution for a libel, it requires no logic to pro- nounce the expreffion to be an abfolute, unequi- vocal, and univerfal denial of the right : common fenfe tells every man, that to fpeak of a perfon's right t I ] right to do a thing which yet in every poflible in* ftance where it might be exerted, he is religioufly and morally bound not to exert, is not even fophiftry, but downright vulgar nonfenfe, But, my Lord, the jury were not only limited by thefe modern precedents, which certainly have an exiftence ; but were in my mind limited with ftill greater effect by the learned judge's declara- tion, that fome of thofe antient authorities on which I had principally relied for the eftablifhment of their jurisdiction, had not merely been over- ruled, but were altogether inapplicable. I parti- cularly obferved how much ground I loft with the jury, when they were told from the bench, that even in Bufhel's cafe, on which I had fo greatly depended, the very reverie of my doctrine had been exprefsly eftablimed : The court having faid unanimouily in that cafe, according to the learned judge's flate of it, that if the jury be afked what the law is, they cannot fay, and having like- \vife ratified in exprefs terms the maxim, Ad quef- tionem legis non refpondcnt juratores. My Lord, this declaration from the bench, which I confefs not a little daggered and furprized me, rendered it my duty to look again into Vaughan, where Burners cafe is reported j I have performed that duty, and now take upon me po- fitively to fay, that the words of Lord Chief Juftice Vaughan, which the learned judge con- M fidered C 162 ] fidered as a judgment of the court, denying the jurifdiction of the jury over the law, -where a ge- neral iffue is joined before them^ were on the con- trary made ufe of by that learned and excellent perfon, to expofe the fallacy of fuch a mifapplica- tion of the maxim alluded to, by the counfel againft Bufhel ; declaring that it had no reference - to any cafe where the law and the fact were incor- porated by the plea of not guilty, and confirming the right of the jury to find the law upon every fuch iflue, in terms the mofl emphatical and ex- preflive. This is manifefl from the whole report. Bufhel, one of the jurors on the trial of Penn and Mead, had been committed by the court for finding the defendant not guilty, againft the direc- tion of the court in matter of law; and being brought before the court of common pleas by habeas corpus, this caufe of commitment appeared upon the face of the return to the writ. It was contended by the counfel againft Bufhel upon the authority of this maxim, that the commitment was legal, fince it appeared by the return, that Bufhel had taken upon him to find the law againft the di- reftion of the judge, and had been therefore legally imprifoned for that contempt. It was upon that occafion that Chief Juftice Vaughan, with the con- currence of the whole court, repeated the maxim, Ad quejiionem legis non refpondent juratttres, as cited by the counfel for the crown, but denied the ap- plication of it to impofe any reftraint upon jurors trying L 163 ] trying any crime upon the general ifTue. His lan- guage is too remarkable to be forgotten, and too plain to be mifunderflood. Taking the words of the return to the habeas corpus, viz. " That the " jury did acquit againft the direction of the court " in matter of law." " Thefe words (faid this e< great lawyer) taken literally and de piano are in- " fignificant and unintelligible, for no iflue can be " joined of matter of law, no jury can be charged " with the trial of matter of law barely : no evi- " dence ever was, or can be given to a jury of what " is law or not ; nor any oath given to a jury to " try matter of law alone, nor can any attaint lie " for fuch a falfe oath. Therefore we muft take " off this veil and colour of words, which make " a fhew of being fomething, but are in faft '* nothing : for if the meaning of thefe words, '* Finding againft the direffion of the court in matter " of law-, be, that if the judge, having heard the evidence given in court, (for he knows no other,) " mail tell the jury upon this evidence, that the law is for the plaintiff or the defendant, and they under the pain of fine and imprifonment are to find accordingly, every one fees that the jury is but a troublefome delay, great charge, and of no ufe in determining right and wrong ; which s were a ftrange and new found conclufion, after a " trial fo celebrated for many hundreds of years in " this country." M 2 Lord C 164 1 Lord Chief Juftice Vaughan's argument is there-* fore plainly this. Adverting to the arguments of the counfel, he fays, you talk of the maxim Ad queftionem legls non refpondent juratores, but it has no fort of application to your fubjeft* The words df your return, viz. That Bufhel did acquit againfl the direction of the court in matter of law, is un- intelligible and as applied to the cafe impoflible. The jury could not be alked in the abftraft, what was the law : they could not have an iflue of the law joined before them : they could not be fworn to try it. Ad queftionem legis ncn refpondent jura* iorcs: therefore to fay literally and de piano that the jury found the law againfl the judge's direclioa is abfurd : they could not be in a fituation to find it ; an unmixed queflion of law could not be be- fore them : the judge could not give any politive directions of law upon the trial, for the law can only arife out of fa&s, and the judge cannot know what the fads are till the jury have given their verdict. Therefore, continued the chief juftice, let us take off this veil and colour of words, which make a mew of being fomething but are in fadt . nothing r let us get rid of the fallacy of applying a maxim, which truly deferibes the jurifdiction of the courts over imies of law, to deftroy the jurif- diclion of jurors, in cafes where law and facl are blended together upon a trial. For if the jury at the trial are, bound to receive the law from the judge, every one fees that it is a mere mockery, C ' 6 5 3 jnockery, and of no ufe in determining right and wrong. This is the plain common fenfe of the argument ; and it is impomble to fuggeft a diftinction between its application to BumePs cafe and to the prefent ; .except that the right of imprifoning the jurors was there contended for, in order to enforce obedience to the directions of the judge. But this diftindion, if it deferves the name, though held up by Mr. Bearcroft as very important, is a diftinclion without a difference. For if, according to Vaughan, the free agency of the jury over the whole charge, un- controuled by the judge's direction, conflitutes the whole of that antient mode of trial ; it fignifies nothing by what means that free agency is de- ftroyed: whether by the imprifonment of con- fcience or of body ; by the operation of their vir- tues or of their fears : whether they decline exert- ing their jurifdiftion from being told that the exer- tion of it is a contempt of religious and moral .order, or a contempt of the court punifhable by imprifonment j their jurifdidioH is equally taken away, My Lord, I mould be very forry improperly to wafte the time of the court, but I cannot help re- peating once again, that if in confequence of the learned judge's directions, the jury from a juft de- ference to learning and authority, from a nice and jnodeft fenfe of duty, felt themfelves JiOt at liberty M3 to [ 166 ] to deliver the defendant from the whole indicU ment ; he has not been tried. Becaufe though he. was entitled by law to plead generally that he was not guilty ; though he did in fact plead it accord- ingly and wen* down to trial upon it, yet the jury have not been permitted to try that iflue, but have been directed to find at all 'events a general verdict of guilty; with a pofitive injunction not to in- veftigate the guilt, or even to Ijflen to any evidence of innocence. My Lord, I cannot help contrafting this trial, with that of Colonel Gordon's but a few feffions paft in London. I had in my hand but this mo- ment, an accurate note of Mr. Baron Eyre's* charge to the jury on that occafion ; I will not detain the court by looking for it amongfl my papers ; be- caufe I believe I can correctly repeat the fubftance of it. Earl of Mansfield. The cafe of the King againfl Cofmo Gordon. Mr. JLr/kine. Yes, my Lord ; Colonel Gordon was indi&ed for the murder of General Thomas whom he had killed in a duel : and the queflion was, whether if the jury were fatisfied of that fad, the pr^foner was to be convicted of murder ? That was according to Forfter as much a quef- tion of law, as libel or no libel : but Mr. Baron * Now Lord Chief Baron. Eyre Eyre did not therefore feel himfelf at liberty to withdraw it from the jury. After ftating (greatly to his honour) the hard condition of the prifoner, who was brought to a trial for life, in a cafe where the pofitive law and the prevailing manners of the times were fo flrongly in oppofition to one another, that he was afraid the punifhment of individuals would never be able to beat down an offence fo fanHoned ; he addreffed the jury nearly in thefe words: " Neverthelefs, gentlemen, I am " bound to declare to you, what the law is as ap- " plied to this cafe, in all the different views in " which it can be confidered by you upon the evi- " dence. Of this law and of the fafts as you jhall "find them, your verdifi muji be compounded ', and I " perfuade myfelf, that it will be fuch a one as to " give fatisfadion to your own confciences." Now, if Mr. Baron Eyre, inflead of telling the jury that a duel, however fairly and honourably fought, was a murder by the law of England, and leaving them to find a general verdict under that direction, had faid to them, that whether fuch a duel was murder or manflaughter, was a queftion with which neither he nor they had any thing to do, and on which he mould therefore deliver no opinion ; and had directed them to find that the prifoner was guilty of killing the deceafed in a de- liberate duel, telling them, that the court would fettle the reft ; that would have been directly coa- fonant to the cafe of the Dean of St. Afaph. By M 4 this C '68 3 this dire&ion, the prifoner would have been in the frauds of the court, and the judges, not the jury, would have decided upon the life of Colonel Gordon. But the two learned judges differ mod efTentially Indeed. Mr. Baron Eyre conceives himfelf bound in duty to (late the law as applied to the particular facts,, and to leave it to the jury. Mr. Juftice Buller fays, he is not bound nor even allowed fo to flate or apply it, and withdraws it entirely from their confideration. Mr. Baron Eyre tells the jury that their verdict is to be compounded of the fa/l and the law. IMr. Juftice Buller on the contrary, that it is to be confined to the facl only, the law being the ex r clufive province of the court. My Lord, it is not for me to fettle differences of opinion between the judges of England, nor to pronounce which of them is wrong : but, fince they are contradictory and inconfiftent, I may hazard the affertion that they cannot both be right : the authorities which I have cited, and the general fenfe of mankind which fettles every thing elfe, mull determine the reft. My C 169 j My Lord, I come now to a very important part pf the cafe, untouched I believe before in any of the arguments on this occaiion. I mean to contend, that the learned judge's charge to the jury cannot be fupported even upon, its own principles ; for, fuppofmg the court to be of opinion that all I have faid in oppofition to thefe principles is inconclufive, and that the queilion of libel, and the intention of the publimer were properly withdrawn from the confideration of the jury, ftill I think I can make it appear that fuch a judgment would only render the inifdirection. more palpable and {hiking. I may fafely aflame, that the learned judge mull Jiave meant to direct the jury either to find a general or a fpecial verdict ; or to fpeak more generally, that one of thefe two verdicts mult, be the object of every charge : For I venture to affirm, that neither the records of the courts, the reports of their proceedings, nor the writings of lawyers, furnifh any account of a third. There can be no middle verdict between both ; the jury mufl either try the whple iflue generally, or find the facts fpecially, referring; the legal conclufion to the court. I may affirm with equal certainty, that the ge- neral verdict, ex -vi termini, is univerfally as com- prehenfive as the iffue, and that confequently fuch a verdict a verdict on an indictment, upon the genera! ifiue, not guilty, univerfally and unavoidably involves a judgment of law, as well as fact ; becaufe the charge comprehends both, and the verdict, as has been faid, is coextenfive with it. Both Coke and Littleton, giye this precife definition of a general verdict j for they both fay, that if the jury will find the law, they may do it by a general verdict, which is ever as large as the iflue. If this befo, it follows by neceflary confequence, that if the judge means to direct the jury to find generally againft a defendant, he muft leave to their consideration every thing which goes to the conflitution of fuch a general verdict, and is therefore bound to permit them to come to, and to direct them how to form that general conclufion from the law and the fact, which is involved in the term guilty. For it is ridi- culous to fay, that guilty is a fact, it is a conclufion in law from a fact, and therefore can have no place in a fpecial verdict, where the legal conch, fion is left to the court. In this cafe the cfcfendant is charged, not with having 'publifhed this pamphlet, but with having publilhed a certain falfe, fcandalous, and feditious libel, with a feditious and rebellious intention. He pleads that he is not guilty in manner and form as he is accufed ; which plea is admitted on all hands to be a denial of the whole charge, and confequently does not merely put in iffue the fact of publiming the pamphlet j but the truth of the whole indict- ment, xneni, i. e. the publication of the libel fet forth in it, with the intention 'charged by it. When this iflfue comes down for trial, the jury mud either find the whole charge or a part of it ; and admitting for argument fake, that the judge has a right to dictate either of thefe two courfes ; he is undoubtedly bound in law to make his di- rection to the jury conformable to the one or the other. If he means to confine the jury to the fact of publifhing, confidering the guilt of the defendant to be a legal conclufion for the court to draw from that fact, fpecially found on the record : he ought to direct the jury to find that fact without affixing the epithet of guilty to the finding. But, if he will have a general verdict of guilty, which involves a judgment of law as well as fact ; he muft leave the law to the confideration of the jury. For when the word guilty is pronounced by them, it is fo well underftood to comprehend every thing charged by the indictment, that the aflTociate or his clerk inftantly records, that the defendant is guilty in manner and form as he is accufed, /. e. not fimply that he has publifhed the pamphlet contained in the indictment ; but that he is guilty of publifhing the libel with the wicked intentions charged on him by the record. Now, if this effect of a general verdict of guilty is reflected on for a moment, the mifdirection of directing one upon the bare fact of publifhing, will appear [ 172 3 appear in the moft glaring colours. The learnecj judge fays to the jury, "Whether this be a libel is Hot for your confideration ; I can give no opinion on that fubject without injuflice to the profecutor ; and as to what Mr, Jones fwore concerning the defendant's motives for the publication, that is likewife not before you ; for, if you are fatisfied in point of fact that the defendant publifhed this pamphlet, you are bound to find him guilty. Why guilty, my lord, when the confideration of guilt is withdrawn ? He confines the jury to the finding of a fact, and enjoins them to leave the legal con- clufion from it to the court ; yet, inflead of di- recting them to make that fact the fubject of a fpecial verdict, he defires them in the fame breath to find a general one : to draw the conclufion without any attention to the premifes : to pro- nounce a verdict which upon the face of the recorcj Includes a judgment upon their oaths that the paper is a libel, and that the publifher's intentions in publiming it were wicked and feditious, although neither ihe one nor the other made any part of their confideration. My Lord, fuch a verdict is a monfter in law, without precedent in former times, or root in the conftitution. If it be true, en the principle of the charge itfelf, that the fact of publication was all that the jury were to find, and all that was ne- ceffary to eftablifh the defendant's guilt, if the thing publifhed be a libel ; Why \ras not that fact found [ "73 ] found like all other facts upon fpecial Verdicts ? Why was an epithet, which is a legal conclufion from the fact, extorted from a jury who were re- flrained from forming it themfelves ? The verdict rnufl be taken to be general or fpeeial : if general, it has found the whole iffue without a co-exten- five examination. If fpecial, the word guilty which is a conclufion from facts can have no place in it. Either this word guilty is operative or uneffentiaf ; an epithet of fubftance, or of form. It is impoffible to controvert that proportion, and I give the gentlemen their choice of the alternative. If they admit it to be operative and of real fubftance, or, to fpeak more plainly, that the fact of publication found fpecially, without the epithet of guilty, would have been an imperfect verdict inconclufive of the defendant's guilt, and on which no judg- ment could have followed : then it is impoffible to deny that the defendant has fuffered injuftice ; be- caule fuch an admiffion confefles that a criminal conclufion from a fact has been obtained from the jury, without permitting them to exercife that judgment which might have led them to a .con- clufion of innocence : and that the word guilty has been obtained from them at the trial as a mere matter of form, although the verdict without it, ftating only the fact of publication which they were directed to find, to which they thought the finding alone enlarged, and beyond which they never en- larged [ 174 ] larged their enquiry, would have been an abfolute verdict of acquittal. If, on the other hand, to avoid this infuperable objection to the charge, the word guilty is to be reduced to a mere word of form, and it is to be contended that the fact of publication found fpe- cially would have been tantamount ; be it fo : let the verdict be fo recorded ; let the word guilty be expunged from it, and I inftantly fit down j I trouble your Lordfhips no further ; I withdraw my motion for a new trial, and will maintain in arreft of judgment, that the Dean is not convicted. But if this is not conceded to me, and the word guilty though argued to be but form, and though as'fuch obtained from the jury, is ftill.preferved upon the record, and made ufe of "againfl the defendant as fubftance ; it will then become us, (independently of all confideration as lawyers,) to confider a little how that argument is to be made confiftent with the honour of gentlemen, or that fairnefs of dealing which cannot but have place wherever juflice is ad- miniftered. But in order to eftablifh that the word guilty is a word of eflential fubflance ; that the verdict would have been imperfect without It ; and that therefore the defendant fuffers by its infertion ; I undertake to mew your Lordfhip, upon every principle and authority of law, that if the fact of publication, which was all that was left to the jury, had been found [ '75 ] found by fpecial verdict, no judgment could have been given on it. My Lord, I will try this by taking the fulleft finding which the facts in evidence could poffibly have warranted. Suppofmg then, for inftance, that the jury had found that the defendant publimed the paper according to the tenor of the indictment: that it was written of and concerning the King and his Government ; and that the innuendos were likewife as averred, K meaning the prefent King, and P the prefent parliament of Great Britain : on fuch a finding, no judgment could have been giveri by the court, even if the record had contained a compleat charge of a libel. No principle is more unqueftionable than that to warrant any judgment upon a fpecial verdict, the court which can pre- fume nothing that is not vifible on the record, muft fee fufficient matter upon the face of it, which, if taken to be true, is conclufive of the defendant's guilt. They muft be able to fay, if this record be true, the defendant cannot be innocent of the crime which it charges on him. But from the facts of fuch a verdict the court could arrive at no fuch legitimate conclufion; for it is admitted on all hands, and indeed exprefsly laid down by your Lordfiiip in the cafe of the King againft Woodfall, that publication even of a libel is not conclujtve evidence of guilt ; for that the defendant may give evidence of an innocent publication. Looking C '76 ] Looking therefore upon a record containing a. good indictment of a libel, and a verdict finding that the defendant publifhed it ; but without the epithet of guilty, the court could not pronounce that he publifhed it with the malicious intention which is the eflence of the crime : they could not fay what might have paffed at the trial : for any thing that appeared to them he might have given fuch evidence of innocent motive, neceffity, or miftake, as might have amounted to excufe of juftification. They would fay that the facts flated upon the verdict would have been fully fufficient in the abfence of a legal defence to have warranted the judge to have directed, and the jury to have given a general verdict of guilty, comprehending the intention which conflitutes the crime : but that to warrant the bench which is ignorant of every thing at the trial, to prefume that intention, and thereupon to pronounce judgment on the record, the jury muft not merely find full evidence of the crime, but fuch facts as compofe its legal definition* This wife principle is fupported by authorities which are perfectly familiar. If, in an action of trover, the plaintiff proves property in himfelf, pofieffion in the defendant, and a demand and refufal of the thing charged to be converted ; this evidence unanfwered is full proof of a converfion j and if the defendant could not Ihew to the jury why he had refufed to deliver the plaintiiPs '77 ] jdaintiffY property on a legal demand of it, the judge would direct them to find him guilty of the converfion. But on the fame facts found by fpecial verdict, no judgment could be given by the court : the judges would fay, If the fpecial verdict contains the whole of the evidence given at the trial, the jury mould have found the defendant guilty ; for the converfion was ' fully proved, but we cannot declare thefe facts to amount to a converfion, for the defendant's intention was a fact which the jury mould have found from the evidence, over which we have no jurifdiction. So in the cafe put by Lord Coke, I believe in his firft Inftitute 115. If a modus is. found to have exifted beyond memory till within thirty years be- fore the trial, the court cannot upon fuch facts found by fpecial verdict pronounce agaihft the modus : but any one of your Lordfhips would cer- tainly tell the jury, that upon fuch evidence they were warranted in finding againft it. In all cafes of prefcription, the univerfal practice of judges is to direct juries by analogy to the fla- tute of limitations to decide againft incorporeal rights, which for many years have been relin- quifhed j but fuch modern relinquimments, if ftated upon the record by fpecial verdict, would in no inltance warrant a judgment againft any pre- fcription. The principle of the difference is ob- vious and univerfal : the court looking at a record N can [ '78 ] can prefume nothing *, it has nothing to do with reafonable probabilities, but is to eftablifh legal certainties by its judgments. Every crime is like every other complex idea, capable of a legal de- finition : if all the component parts which go to its formation are put as facts upon the record, the court can pronounce the perpetrator of them a cri- minal : but if any of them are wanting, it is a chafm in fat, and cannot be fupplied. Wherever inten- tion goes to the eflence of the charge, it muft be found by the jury ; it muft be either comprehended under the word guilty in the general verdict, or fpecincally found as a facl: by the fpecial verdicl. This was folemnly decided by the court in Hug- gins's cafe, in fecond Lord Raymond, 1581, which was a fpecial verdict of murder from the Old Bailey. It was an indictment agamft John Huggins, and James Barnes, for the murder of Edward Arne. The indictment charged that Barnes made an af- fault upon Edward Arne, being in the cuftody of the other prifoner Huggins, and 'detained him for fix weeks in a room newly built over the common fewer of the prifon, where he languifhed and died: the indictment further charged, that Barnes and Huggins well knew that the room was unwhole- fome and dangerous : the indictment then charged that the prifoner Huggins of his malice afore- thought was prefent, aiding, and abetting Barnes, to C '79 ] to commit the murder aforefaid. This was the fob* fiance of the indictment. The fpecial verdift found that Huggins was war- den of the Fleet by letters patent : that the other prifoner Barnes was fervant to Gibbons Huggins, deputy in the care of all the prifoners, and of the deceafed a prifoner there. That the prifoner Barnes, on the /th of September, put the deceafed Arne in a room over the common fewer which had been newly built, knowing it to be newly built, and damp, and fituated as laid in the indictment : and that fifteen days before the prifoner's death, HUG- GINS likewife well knew that the room was new built ^ damp, and fituated as laid. They found that fifteen days before the death of the prifoner, Huggins was prefent in the room, and faw him there under durefs of imprifonment, but then and there turned away, and Barnes locked the door, and that from that time till his death the deceafed remained locked up. It was argued before the twelve judges in Ser- jeants Inn, whether Huggins was guilty of murder. It was agreed that he was not anfwerable criminally, for the act of his deputy, and could not be-guilty, unlefs the criminal intention was brought per- fonally home to himfelf. And it is remarkable how ftrongly the judges required the fact of knowledge and malice, to be flated on the face of the verdiclr, N 2 as aS oppofed to evidence of intention, and inference from a fad:. The court faid, it is chiefly relied on that Hug- gins was prefent in the room, and faw Arne fub duritle i?nprifonamenti^ et fe avert it ; but he might be prefent and not know all the circumftances ; the words are vimrfub duritie ; but he might fee him under durefs, and not know he was under durefs : it was anfwered that feeing him under durefs evi- dently means he knew he was under durefs ; but fays the court, " we cannot take things by Inference in this manner ; his feeing is but evidence of his know- ledge ofthefe things^ and therefore the jury ^ if the fact would have borne it^jhould have found that Huggins knew he was there without his confent^ which not being -done we cannot intend thcfe things nor Infer them ; we muft judge of facts ^ and not from the evidence of facts ;" and cited Keylnge, 78 ; that whether a man be aiding and abetting a murder is mat- ter of fact, and ought to be exprefsly found by a jury. The application of thefe laft principles and authorities to the cafe before the court is obvious and fimple. The criminal intention is a fact, and muft be found by the jury : and that finding can only be expreffed upon the record by the general verdict of guilty guilty which comprehends it, or by the fpecial enumeration of fuch fads as do not mer4y amount to evidence of, but which completely anl conclu- fively constitute the crime. But it has beei (hewn, and is indeed admitted, that the publication of a libel is only prima fade evidence of the complex charge in the indictment, and not fuch a fa<3: as amounts in itfelf when fpecially ftated to concluTve guilt ; fmce as the judges cannot tell how he criminal inference from the fact of publifhing a libel, might have been rebutted at the trial j nc judgment can follow from a fpecial finding, that the defendant publiflied the paper indicted accord- ing to the tenor laid in the indictment. It follows from this, that if the jury had only found the fact of publication, which was all that was left to them, without affixing the epithet of guilty, which could be only legally affixed by an inveftiga- tion not permitted to them ; a venire facias de nova muft have been awarded becaufe of the uncertainty of the verdict as to the criminal intention : whereas it will now be argued, that if the court mall hold the dialogue to be a libel, the defendant is fully convicted ; becaufe the verdict does not merely find that he publifhed, which is a finding confiftent with innocence, but finds him GUILTY of publifh- ing, which is a finding of the criminal publication charged by the indictment. My Lord, how I ihall be able to defend my inno- cent client againft iuch an argument, I am not N 3 prepared C .82 ] prepared to*ay ; I feel all the weight of it ; but that feelin/ furely entitles me to greater attention, when I c^nplain of that which fubjects him to it, without '-'he warrant of the law. It is the weight of fuchan argument that entitles me to a new trial ; for th/ Dean of St. Afaph is not only found guilty, without any inveiligation of his guilt by the jury, but without that queftion being even open to your LojtHhips on the record. Upon the record the court ca,i only fay the dialogue is, or is not a libel ; but i/it (hould pronounce it to be one, the criminal intention of the defendant in publifhing it is taken for granted by the word guilty ; although it has not only not been tred, but evidently appears from the verdict itfelf not to have been found by the jury. Their verdidl: is, " guilty of publifhing, " but whether a libel or not they do not find." And it is therefore impomble to fay that they can have found a criminal motive in publifhing a paper, on the criminality of which they have formed no judgment. Printing and publifhing that which is legal, contains in it no crime : the guilt muft arife from the publication of a libel ; and there is there- fore a palpable repugnancy on the face of the ver- dicl: itfelf, which firft finds the Dean guilty of pub- liming, and then renders the finding a nullity, by pronouncing ignorance in the jury whether the tbe thing publifhed comprehends any guilt. To conclude this part of the fubjecl:, the epithet of guilty (as I fet out with at firft) muft either be taken to be fubflance, or form. If it be fubftance, and c -83 : and as fuch, conclufive of the criminal intention of the publifher, ihould the thing publiflied be here- after adjudged to be a libel ; I afk a new trial, be- caufe the defendant's guilt in that refpect has been found without having been tried : If on the other hand, the word GUILTY is admitted to be but a word of form, then let it be expunged, and I am not hurt by the verdict. Having now eftablimed, according to my two firil proportions, that the jury upon every general iffue, joined in a criminal cafe, have a conftitu- tional jurisdiction over the whole charge, I am next in fupport of my third, to contend, that the cafe of a libel forms no legal exception to the gene- ral principles which govern the trial of all other crimes, that the argument for the difference, viz. becaufe the whole charge always appears on the record, is falfe in fact, and that even if true, it would form no fubftantial difference in law. As to the firft, I ftill maintain that the whole cafe does by no means neceffarily appear on the record ; the crown may indict part of the publi- cation, which may bear a criminal conftruction when feparated from the context, and the context omitted having no place in the indictment, the de- fendant can neither demur to it a nor arreft the judg- ment after a verdict of guilty ; becaufe the court is 'abfolutely circumfcribed by what appears on the re- cord, and the record contains a legal charge of a libel. N 4 I maintain I maintain likewife, that according to the prin r ciples adopted upon this trial, he is equally fhut out from fuch defence before the jury ; for though he may read the explanatory context in evidence, yet he can derive no advantage from reading it, if they are tied down to find him guilty of publifhing the matter which is contained in the indictment, however its innocence may be eftablifhed by a view of the whole work. The only operation, which looking at the context can have upon a jury is, to convince them that the matter upon the record, however libellous when taken by itfelf, was not intended to convey the meaning which the words indicted import in language, when feparated from the general fcope of the writing : but upon the principle contended for, they could not acquit the defendant upon any fuch opinion, for that would be to take upon them the prohibited queftion of libel, which is faid to be matter of Jaw for the court. My learned friend Mr. Bearcroft appealed to his audience with an dr of triumph, whether any fober man could believe, that an Englifti jury in the cafe I put from Algernon Sidney would con- vict a defendant of publilhing the Bible, mould the crown indict a member of a verfe which was blafphemous in itfelf if feparated from the context. My Lord, if my friend had attended to me, he would have found that in confidering fuch fuppofition as an abfurdity, he was only repeating my own words. I never fuppofed that a jury would aft C 185 ] s.t fo wickedly, or fo abfurdly, in a cafe where the principle contended for by my friend Mr. Bearcroft, carried fo palpable a face of injuftice, as in the in- ftance which I felected to expofe it ; and which I therefore feleded to fhew that there were cafes in which the fupporters of the doctrine were afhamed .of it, and obliged to deny its operation : for it is impomble to deny that if the jury can look at the context in the cafe put by Sidney, and acquit the defendant on the merits of the thing publifhed ; they may do it in cafes which will direclly operate againft the principle he feems to fupport. This Vvill appear from other inftances, where the injuf- tice is equal, but not equally flriking. Suppofe the crown were to felecl fome paffage from Locke upon Government; as for inftance ; " that there was no difference between the king and " the conftable 'when either of them exceeded their " authority" That affertion under certain cir- cumftances if taken by itfelf without the context, might be highly feditious, and the queflion there- fore would be quo animo it was written : perhaps the real meaning of the fentence might not be difcover- able by the immediate context without a view of ithe whole chapter, perhaps of the whole book ; therefore to do juftice to the defendant, upon the very principle by which Mr. Bearcroft in anfwer- ing Sidney's cafe can alone acquit' the publifher of his Bible, the jury mull look into the whole EfTay n [ 1 86- J on Government, and forma judgment of the defiga of the author, and the meaning of his work, Lord Mansfield. To be fure they may judge from the whole work. Mr. Erjklne. And what is this, my Lord, but determing the quellion of libel which is denied to day : for if a jury may acquit the publifher of any part of Mr. Locke on Government, from a judg- ment arifing out of a view of the whole book, though there be no innuendos to be filled up as facls in the indi&ment ; what is it that bound the jury to convict the Dean of St. Afaph^ as the pub- lifher of Sir William Jones's dialogue, on the bare facl: of publication, without the right of faying that his obfervations as well as Mr, Locke's, were fpeculative, abftract, and legal ? Lord Mansfield. They certainly may in all cafes go into the whole context. Mr. Erjklne. And why may they go Into the context ? clearly, my Lord, to enable them to form a corred judgment of the meaning of the part in- dited, even though no particular meaning-be fub- mitted to them by averments in the indictment, and therefore the very permiffion to look at the context for fuch a purpofe, (where there are no innuendos to be filled up by them as fats,) is a pal- pable admiiilon of all I am contending for, viz. the [ '87 J the right of the jury to judge of the meiits of the paper, and the intention of its author. * But it is faid, that though a jury have a right to decide that a paper criminal as far as it appears on the record, is neverthelefs legal when explained by the whole work of which it is a part ; yet that they mall have no right to fay that the whole work itfelf if it happens to be all indicted, is innocent and legal. This proportion, my Lord, upon the bare ftating of it, feems too prepofterous to be fe- rioufly entertained ; yet there is no alternative be- tween maintaining it in its full extent, and aban- doning the whole argument. If the defendant is indicted for publiming part of the verfe in the pfalms, " There is no God," it Is afferted that the jury may look at the context, and feeing that the whole verfe did not maintain that blafphemous proportion, but only that the fool had laid fo in his heart, may acquit the defendant upon a judgment that it is no libel, to impute fuch imagination to a fool : but if the whole verfe had been indicted, viz. " the fool has faid in his heart " there is no God;" the jury on the principle contended for, would be retrained from the fame judgment of its legality, and mull convict of blaf- phemy on the fact of publiming, leaving the quef* lion of libel untouched on the record. * This right vras fully exercifed by the Jury vrho tried and ac^itted Mr. Stockdak. If C 188 j If in the fame manner, only part of this very dialogue had been indicted inflead of the whole, it is faid even by your Lordfhip, that the jury might have read the context, and then, notwithftanding the fact of publiming, might have collected from the whole, its abftract and fpeculative nature, and have acquitted the defendant upon that judgment of it ; and yet it is contended that they have no right to form the fame judgement of it upon the preient occafion, although the whole be before them upon the face of the indictment ; but are bound to convict the defendant upon the fact of publiming, notwithftanding they mould have come to the fame judgment of its legality which it is ad- mitted they might have come to on trying an in- dictment for the publication of a part. Really, my Lord, the abfurdities and grofs departures from reafon, which muft be hazarded to fupport this doctrine are endlefs* The criminality of the paper is faid to be a quef- tion of law, yet the meaning of it from which alone the legal interpretation can arife, is admitted to be a queftion of fact. If the text be fo perplexed and dubious as to require innuendos to explain, to point, and to apply obfcureexpreflion or conftruc- tion, the jury alone as judges of fact, are to inter- pret and to fay what fentiments the author muft have meant to convey by his writing : yet if the writing be fo plain and intelligible as to require no Averments of its meaning, it then becomes fo ob- fcure fcure and myfterious as to be a queftionof law, and beyond the reach of the very fame men who but a moment before were interpreters for the judges ; and though its object be mod obvioufly peaceable and its author innocent, they are bound to fay upon their oaths, that it is wicked and feditious and the publilher of it guilty. As a queftion of fact the jury are to try the real fenfe and conftruction of the words indicted, by comparing them with the context; and yet if that context itfelf which affords the comparifon makes 'part of the indictment, the whole becomes a quef- tion of law ; and they are then bound down to con- vict the defendant on the fact of publifhing it, without any jurisdiction over the meaning. To complete the juggle, the intention of the publiflier may likewife be (hewn as a fact, by the evidence of any extrinfic circumiiances, fuch as the context to explain the writing, or the circumftances of miftake or ignorance under which it was publifhed; and yet in the fame breath, the intention is pro- nounced to be an inference of law from the act of publication, which the jury cannot exclude, but which mud depend upon the future judgment of the court. But the danger of this fyftem, is no lefs obvious than its abfurdity. I do not believe that its authors 'ever thought of inflicting death upon Englifhmen, without the interpofition of a jury ; yet its eftab- liihment C X 9 ] iimment would unqueftionably extend to annlhl- late the fubftance of that trial in every piofecution for high treafon, where the publication of any writing was laid as the overt aft. I illuftrated this by a cafe when I moved for a rule, and called upon my friends for an anfwer to it, but no notice has been taken of it by any of them ; this was juft what I expected : when a convincing anfwer can- not be found to an objection, thofe who under- fland controverfy never give flrength to it by a weak one. I faid, and I again repeat, that if an indictment charges that a defendant did traiteroufly intend, compafs, and imagine the death of the king ; and in order to carry fuch treafon into execution, pub- limed a paper which it fets out literatim on the face of the record, the principle which is laid down to day would fubjecl: that perfon to the pains of death by thefingle authority of the judges, without leav- ing any thing to the jury, but the bare fact of pub- liming the paper. For, if that fact were proved, and the defendant called no witnefles, the judge who tried him would be warranted, nay bound in, duty by the principle in queflion, to fay to the jury, Gentlemen, the overt act of treafon charged upon the defendant, is the publication of this paper, intending to compafs the death of the King ; the fad is proved, and you are therefore bound tq convict him : the treafonable intention is an infer- ence of law from the act of publifhing j and if tha thing C 191 ] thing publifhed does not upon a future examina- tion intrinfically fupport that inference, the court will arreft the judgment, and your verdict will not affect the prifoner. My Lord, I will reft my whole argument upon the analogy between thefe two cafes, and give up every objection to the doctrine when applied to the one, if upon the ftricteft examination it mall not be found to apply equally to the other. If the feditious intention be an inference of law, from the fact of publishing the paper which this indictment charges to be a libel, is not the trea- fonable intention equally an inference from the fact of publiihing that paper, which the other indict- ment charges to be an overt act of treafon ? In the one cafe as in the other, the writing or publica- tion of a paper is the whole charge j and the fub- ftance of the paper fo written or publifhed makes all the difference between the two offences. If that fubftance be matter of law where it is a fedi- tious libel, it muft be matter of law where it is an act of treafon : and if becaufe it is law the jury are excluded from judging it in the one inftance, their judgment muftfuifer an equal abridgment in the other. The confequence is obvious. If the jury by an appeal to their confciences are to be thus limited in the free exercife of that right which was given them them by the conftituiion, to be a protection againft judicial authority where the weight and majeity of the crown is put into the fcale againft an obfcure individual, the freedom of the prefs is at an end r for how can it be faid that the prefs is free becaufe every thing may be publifhed without a previous licence, if the publifher of the moft meritorious work which the united powers of genius and pa- triotifm ever gave to the world, may be profe- cutedby information of the King's attorney general, without the confent of the grand jury, may be convicted by the petty jury, on the mere fact of publimmg, (who indeed without perjuring them- felves muft on this fyftem inevitably convict him), and muft then depend upon judges who may be the fupporters of the very adminiftratioh whofe meafures are queilioned by the defendant, and who muft therefore either give judgment againft him or againft themfelvesl To all this Mr. Bearcroft fhortly anfwers, Are you not in the hands of the fame judges, with ref- pect to your property and even to your life, when fpecial verdicts are found in murder, felony, and treafon ? in thefe cafes do prifoners run any hazard from the application of the law by the judges, to the facts found by the juries ? Where can you poffibly be fafer ? My Lord, this is an argument which lean anfwer without indelicacy or offence, becaufe your Lord- fliip's [ '93 ] fhip's mind is much too liberal to fuppofe, that I infult the court by general obfervations on the prin- ciples of our legal government : however fafe we might be or might think ourfelves, the conftitu- tion never intended to invefl judges with a difcre- tion, which cannot be tried and meafured by the plain and palpable ftandard of law ; and in all the cafes put by Mr. Bearcroft, no fuch loofe difcretion is exercifed as muft be entertained by a judgment on a feditious libel, and therefore the cafes are not parrallel. On a fpecial verdict for murder, the life of the prifoner does not depend upon the religious, moral, or philofophical ideas of the judges, concerning the nature of homicide : no, precedents are fearched for, and if he is condemned at all, he is judged exadly by the fame rule as others have been judged by before him ; his conduct is brought to a precife, clear, intelligible ftandard, and cautioufly mea- fured by it : it is the law therefore and not the judge which condemns him. It is the fame in all indictments, or civil actions for flander upon in- dividuals. Reputation is a perfonal right of the fubjeft, indeed the mod valuable of any, and it is there- fore fecured by law, and all injuries to it clearly afcertained : whatever flander hurts a man in his trade, fubjecls him to danger of life, liberty, or lofs of property, or tends to render him infamous, O is C '94 3 is the fuhjet of an action, and in fome inftaftces of an indictment. But in all thefe cafes where the mains animus is found by the jury, the judges are in. like manner a fafe repofitory of the legal confe- quence ; becaufe fuch libels may be brought to a well known ftandard of ftrict and pofitive law ; they leave no 'difcretion in the judges : the deter- mination of what words when written or fpoken of another are actionable, or the fubject of an indict- ment, leaves no more latitude to a court fitting in judgment on the record, than a queftion of title does in a fpecial verdict in ejectment. But I befeech your Lordmip, to confider by what rule the legality ^or illegality of this dialogue is to be decided by the court as a queftion of law upon the record. Mr. Bearcroft has admitted in the mod unequivocal terms, (what indeed it was im- pomble for him to deny,) that every part of it when viewed in the abftradt was legal ; but he fays, there is a great diftinction to be taken between fpecula- tion and exhortation, and that it is this latter which makes it a libel. I readily accede to the truth of the obfervation, but how your Lordmip is to de- termine that difference as a queftion of law, is paft my comprehenfion : for if the dialogue in its phrafe and compofition be general, and its libellous tendency arifes from th^ purpofe of the writer, to raife difcontent by a feditious application of legal doctrines; that purpofe is furely a queftion of fact if ever there was one, and muft therefore be diftinctly C '95 ] diilinctly averred in the indictment, to give the cog- ^izance of it as a fat to the jury, without which no libel can poffibly appear upon the record : this is well known to be the only office of the innuendo; becaufe the judges can prefume nothing which the ftricteft rules of grammar do not warrant them to collect intrinfically from the writing itfelf. Circumfcribed by the record, your Lordfhip can form no judgment of the tendency of this dialogue to excite fedition by any thing but the mere words: you muft look at it as if it was an old manufcript dug out of the ruins of Herculaneum ; you can collect nothing from the time when, or the cir- cumftances under which it was publimed ; the perfon by whom, and thofe ariiongft whom it was circulated ; yet thefe may render a paper at one time, and under fome circumftances, dangeroufly wicked and feditious, which at another time, and under different circumftances, might be innocent and highly meritorious. If puzzled by a tafk fo inconfiftent with the real fenfe and fpirit of judicature, your Lordmips mould fpurn the fetters of the record, and judging with the reafon rather than the infirmities of men, mould take into your confideration, the ftate of men's minds on the fubjeft of equal reprefentation at this moment, and the great difpofition of the prefent times to revolution in government : if reading the record with thefe impreflions your Lordmips mould O 2 be C '96 J be led to a judgment not warranted by an a&ftracc confederation of the record^ then befides that fuch a judgment would be founded on facts not in evi- dence before the court, and not within its jurifdic- tion if they were ; let me further remind your Lordfhips, that even if thofe objections to the pre- mifes were removed, the conclufion would be no conclufion of law : your decifion on the fubject might be very fagacious as politicians, aa moralifts, as philofophers, or as liceneers of the prefs, but they would have no refemblance to the judgments of an Englifh court of ju ft ice, becaufe it could have no warrant from the acts of your predeceflbrs, nor afford any precedent to yourfuccefibrs. But all thefe objections are perfectly removed, when the feditlous tendency of a paper is confider- ed as a queflion of fact : we are then relieved from the abfurdity of a legal difcuffion feparated from all the facts from which alone the law can arife ; for the jury can do what (as I obferved before) your Lord- ihips cannot do in judging by the record ; they can examine by evidence all thofe circumftances that lead to eftablifh the feditious tendency of the paper from which the court is fhut out : they may know themfelves, or it may be proved before them, that it has excited fedition already . they may collect from witnefles that it has been widely circulated, and feditioufly underflood ; or, if the profecution (as is wile(t) precedes thefe confe- fequences, and the reafoning muft be a priori, furely gentlemen living in the country are much better C 197 ] better judges than your Lordfhip, what has or has not a tendency to difturb the neighbourhood in which they live, and that very neighbourhood is the forum of criminal trial. If they know that the fubject of the paper is the topic that agitates the country around them ; if they fee danger in that agitation, and have rea- fon to think that the publiiher mult have intended it ; they fay he is guilty. If, on the other hand, they confider the paper to be legal, and enlighten- ing in principle ; likely to promote a fpirit of acti- vity and liberty in times when the activity of fuch a fpirit is eiTential to the public fafety, and have reafon to believe it to be written and publifhed in that fpirit ; they fay, as .they ought to do, that the writer or the publimer is not guilty. Whereas your Lordihip's judgment upon the language of the record mu(l ever be in the pure abftract j ope- rating blindly and indifcriminately upon all times, circumftances, and intentions, making no distinc- tion between the glorious attempts of a Sidney or a RufTel, ftruggling againft the terrors of defpotifm under the Stuarts ; and thofe defperate adventurers of the year forty-five, who libelled the perfon, and excited rebellion againft the mild and gracious government of our late excellent fovereign King George the Second, *VI} T Lord, if the independent gentlemen of England are thus better qualified to decide from- caufe of knowledge, it is no offence to the court O 3 to to fay, that they are full as likely to decide with impartial juftice as judges appointed by the crown. Your Lordfhips have but a life intereftin the public property, but they have an inheritance in it for their children. Their landed property depends upon the fecurity of the government, and no man \vhp wantonly attacks it can hope or expect to efcape from the felfim lenity of a jury. On the firft principles of human action .they muft lean heavily againft him. It is only when the pride of Englilhmen is picqued by fuch doctrines as I am oppofmg to-day, that they think it better to fcreen the guilty by an indifcriminate oppofition to them, than furrender thofe rights by which alone inno- cence in the day of danger can be protected. I venture therefore to fay, in fupport of one of my original propofitions, that where a writing in- dicted as a libel, neither contains, nor is averred by the indictment to contain any flander of an in- dividual, fo as to fall within thofe rules of law which protect perfonal reputation, but whofe cri- minality is charged to confift (as in the prefent in- ftance ) in its tendency to flir up general difcontent, that the trial of fuch an indictment neither in- volves, nor can in its obvious nature involve any abftract queftion of law for the judgment of a court, but muft wholly depend upon the judgjnent of the jury on the tendency of the writing itfelf, to pro- duce fuch confequences, when connected with all the circumilances which attended its publication. It C *99 ] It is unnecefiary to pufh this part of the argu* jnent further, becaufe I have heard nothing from the bar againfl the pofition which it maintains ; none of the gentlemen have, to my recollection, given the court any one fmgle reafon, good or bad, why the tendency of a paper to ftir up difcontent againfl government, feparated from all the circum- flances which al*e ever fhut out from the record, ought to be confidered as an abfiraft queftion of law : they have not told us where we are to find any matter in the books to enable us to argue fuch queftions before the court ; or where your Lord- fhips yourfelves are to find a rule for your judg- ments on fuch fubjects. I confefs that to me it looks more like legiflation, or arbitrary power, than Englifh judicature. If the court can fay, this is a criminal writing, not becaufe we know that mi- chief was intended by its author, or is even con- tained in itfelf, but becaufe fools believing the one and the other may do mifchief in their folly ; the fuppreffion of fuch writings under particular circumflances may be wife policy in a flate, butf upon what principle it can be criminal law in England to be fettled in the abflracl: by judges, I confefs with humility, that I have no organs to underfland. Mr. Leycefter felt the difficulty of maintaining fuch a propofition by any argument of law, and therefore had recourfe to an argument of fact. < c If (fays my learned friend) what is or is not' a OA " feditious [ 200 ]