A N 
 
 E N Ct U I R Y 
 
 INTO THE 
 
 EXTENT 
 
 O F T H E 
 
 POWER OF JURIES, &c. 
 
 [Price is. 6d. ]
 
 X a 
 
 'J 
 
 / o n
 
 A N 
 
 E N Q_ U I R Y 
 
 INTO THE 
 
 EXTENT 
 
 OF THE 
 
 POWER OF JURIES, 
 
 O N 
 
 TRIALS OF INDICTMENTS OR INFORMATIONS, 
 
 FOR PUBLISHING 
 
 SEDITIOUS, OR OTHER CRIMINAL 
 WRITINGS, OR LIBELS, 
 
 EXTRACTED FROM 
 
 A MISCELLANEOUS COLLECTION OF PAPERS 
 THAT WERE PUBLISHED IN 1776, 
 
 INTITULED, 
 
 ADDITIONAL PAPERS CONCERNING THE 
 PROVINCE OF QUEBEC. 
 
 TO WHICH IS ADDED, 
 
 AN ENQ_UIRY 
 
 INTO THE QJJ E 8 T I O N 
 
 WHETHER JURIESARE, ORARENOT, 
 JUDGES OF LAW, AS WELL AS OF FACT; 
 
 With a particular Reference to the 
 
 CASE OF LIBELS. 
 
 LONDON: 
 
 PRINTED FOR J. DEBRETT, OPPOSITE BURLINGTON 
 HOUSE, PICCADILLY, I785.
 
 : A
 
 UNIVERSITY OF CALTPORNI. 
 SANTA BARBARA 
 
 A N 
 
 E N Q^U I R Y, See. 
 
 AS I highly efteem and reverence the 
 Trial by Jury, which forms one of the 
 moft diftinguifhrng bulwarks of the civil liberty 
 which Englifhmen enjoy, I am always anxious 
 to fee jurymen exert their power with fuch 
 difcretion and moderation, as to give their 
 fellow-fuhjeds continually frefli caufe to re- 
 joice at their being inverted with it. And, wiih 
 this view, I always wiHi them to avoid two 
 miftakes into which they are fometimes apt to 
 fall. The one i?, the giving the plaintiff, in an 
 a6lion of trefspafs, a greater fum of money, by 
 way of compenfation for the injury he has fuf- 
 tained, than is, in their opinion, fufhcient for 
 that purpofe ; which they are fometimes in- 
 clined to do through a laudable fpirit of indig- 
 nation againft tlie pradlice of fuch opprefllun as 
 
 B is
 
 [ 2 ] 
 
 is the lubjcd of the complaint before them, 
 and with a defign to deter other perfons from 
 being guilty of the like. But this is departing 
 from the bufmefs that is referred to their deci- 
 fion, and taking upon them to be criminal 
 judges, that inflidl punifhment by way of ter- 
 ror and example, inftead q{ affejj'ors^ or appre- 
 t'tatcrs^ of the magnitude of the particular in- 
 jury, that is the fubjecft of the ad:ion which 
 they hre called upon to try. Every inftance of 
 an irregularity of this kind in the exercife of 
 their authority, I am fully perfuaded, leflens 
 the refpe(fl and confidence which the public 
 entertains for their decifions, and thereby tends, 
 in fome degree, to undermine and weaken their 
 authority. The other manner of deviating 
 from the line of their duty (of which, how- 
 ever, I believe, there are very few inftances) 
 is an obftinate refolution to determine a matter 
 of law, that happens to be involved in the ifTue, or 
 queftion, referred to their decifion, in a manner 
 contrary to the direction of the judge who tries 
 the caufe. This, I confefs, they have a legal 
 right to do, becaufe the whole matter contained 
 in the ilTue joined between the parties, whether 
 it be fadt or law, is brought before them and 
 referred to their decifion. But, furely, common 
 
 fenfe
 
 [ 3 ] 
 fcnfQ muft teach us, that, if they mean to do 
 jul^ice between the parties, they ought, with 
 refpec^ to fuch points, (in which they muft 
 k'low themfelves to be unfkilled) to be guided 
 by the opinion of the judge, or, if they think 
 that may be partial or infufficient, to find a 
 fpecial verdift, to the end that the law may be 
 rightly determined, upon full argument by the 
 juJges of the court in which the adion was 
 brought. 
 
 There is, however, one fubjedl upon which, 
 I imagine, all lovers of public liberty would 
 be inclined to think, that juries ought to have 
 the whole power of determining the matter in 
 conteft. The fubjed, I mean, is the dodrine 
 of feditlous libels, and the criminal prolecu- 
 tions carried on againft the writers and publiHiers 
 of them. Thefe profecutions are attended 
 with fo much danger to that moft valuable 
 piivilegc of EogliHi fubjedts, \k\Q Liberty of the 
 Prcjsy or the right of animadverting freely, 
 aiid publickly, (but with a ftrid adherence to 
 truth,) on the pernicious tendency of publick 
 mealures, that one would vviHi them to be 
 intirely under the controul of the people theni- 
 Jehcs^ {o as never to be carried on with fuccefs 
 
 B 2 but
 
 [ 4 ] 
 
 but when the people themfclvcs are fatisfied of 
 the falfehood and mifchievous tendency, or, at 
 leaft, of the mifchievous tendency, of the writ- 
 ings which are the occafion of them. And for 
 this purpofe it would be neceflary, that the 
 whole determination of thefc profecutions fhould 
 be vefted in the juries, who are a part of the 
 people, and may be fuppofed to entertain the 
 fame fentiments with them. For, if the event 
 of thefe profeculions was to depend upon the 
 inclinations of the judges, there would be rea- 
 fon to apprehend, that they would meet with 
 fuccefs much oftener than would be conliftent 
 with that fpirit of free enquiry and examina- 
 tion of the meafures of government, which is 
 neceflary to the corredion of the abufes of 
 power, and the prefervation of public liberty. 
 Thofe magiftrates muft naturally be fuppofed 
 to be, in fome degree, partial to government 
 in cales of this kind, even from refpe^table 
 motives. Their friendfliip and their gratitude 
 
 would often contribute to make them fo j 
 
 not to mention their felf-intereft and ambition, 
 which would lead them to hope for future fa- 
 vours from the crown. For, who would be 
 the obje(5t of the cenfures contained in the 
 writings under profecution ? Probably the king's 
 miniflcrs of ftate, by whofc favor and pa- 
 tronage
 
 [ 5 ] 
 
 Ironage they, perhaps, would have obtained 
 their offices of judges, and might hope to gain 
 ftill higher honours for themfelves, or prefer- 
 ments for their families. In thefe cafes, there- 
 fore, a jury of men of ordinary rank, as, for 
 example, of fubftantial houfe-keepers in the 
 city of London, would be much lefs likely to 
 interpret the intentions of the writers and 
 publilliers of fuch writings in a fevere manner, 
 and to confidcr the tendency of them as of 
 dangerous confequence to the public, than a 
 bench of judges would be : and yet, they 
 would be fufficiently intererted in the prefer- 
 vation of the public peace (upon which the 
 continuance of their own liberty, trade, and 
 property, would depend,) to be free from any 
 undue biafs of favour towards thofe perfons, if 
 the writings, they had publiflied, had a real and 
 manifeft tendency to difturb it : and therefore, 
 upon the whole, they would be a fafcr and 
 more impartial tribunal for the determination 
 of thefe matters than the judges. It is reafon- 
 able, therefore, that all lovers of public liber- 
 ty (hould wifli, that the whole power of de- 
 termining the merits of profeculions upon thefe 
 fubjeds fhould be vefted in the juries. But, 
 in order to its being fo, it is by no means 
 neceffary, in my apprehcnfion, to depart in 
 
 any
 
 [ 6 ] 
 
 any degree from the rules above-mentioned, 
 concerning tlic diftind): provinces of judges and 
 juries in the decifion of law fults, and the mo- 
 ral obligation, under which jurymen have been 
 iuppaled to lie, to keep ftridtly within the 
 bounds of their own province, without ever 
 prefuming to determine any matters of law. 
 All thcfe rules may, as I conceive, be moft 
 inviolably adhered to, and yet juries will re- 
 n:>ain in polTeffion of the whole ojf this im- 
 portant power of deciding all the_ matters ifi 
 conteft upon profecutions for fcditious libels. 
 For in thefe profecutions all the matters in 
 conteft between the crown and the defendant 
 upon an ilTue of Not guilty are mere ?natters of 
 JaB^ without any, the leall, mixture of matters 
 of law. This I (hall now endeavour to proves 
 by confidering the feveral allegations which go 
 to the compofition of a ciiminal charge for 
 writing a feditious libel. 
 
 An indictment, or information, againft a man 
 for writing a feditious libel, confifts of the 
 four following allegations, and of nothing more; 
 to wir, firft, That the defendant wrote the pa- 
 per in queftion, which is always fet forth, 
 word for word, in the indidment or informa- 
 tion ; fecondly, That he publiflied it : thirdly. 
 That he publiihed it with a bad intent; and 
 
 fourthly.
 
 [ 7 ] 
 
 fourthly, That the p-iper has a tendency to 
 diftiirb the p'jblic peace. I I'peak oF an in- 
 dictment, or information, in which the fedi- 
 tious paper is not charged to be fahe, but only 
 Icandalous and malicious, and tending to caiife 
 a breach of the peace. For, if the charge of 
 fahehood is inferred in the information, that 
 muft be reckoned as a fifth allegation contained 
 in it. This was formerly thought a necelTiry 
 part of a charge for publithing a feditious li- 
 bel, but was omitted (for the firft time, as I 
 have heard,) in the information brought by 
 Sir Fletcher Norton in 1 764, againft Mr. Wilkes, 
 for publifhing the 45th number of the paper 
 called the North Briton, and has been omitted 
 in mod of the informations that have been 
 brought for fucii publications fince that time. 
 The reafon for omitting it was, to avoid the 
 altercation which it ufed conftantiy to occafion at 
 the bar upon the trial of thefe informations, and 
 the plaufible, ifnot juft, pretence it afforded to 
 the dekndant's counfel to infill, that the charges 
 contained in them were not proved. For, 
 though this charge of faU'ehood ufed to be in- 
 fcitpci in the informations, no attempts were 
 ever made to fnpport it by proof, and the judges, 
 wlio tried thefe informaiions, would neither 
 require the counfel for the crown to prove 
 that the writings in qucflion were falfe, nor 
 
 even
 
 [ s ] 
 
 even permit the counfel for the defendants to 
 brinjT proof that they were true ; fo that every 
 information, that was brought for a feditious 
 libel, was defcdively proved in this article of 
 the falfehood of it. Yet the juries ufed often 
 to find verdidts for the crown againft the de- 
 fendants, notwithftanding this defedl in the 
 proof of the charges brought againft them ; 
 and the court of King's-bench ufed, in confe- 
 quence of thefe verdifts, to pafs judgments, 
 and inflid: punirhmcnts, upon them. This, 
 however, was fometimes complained of as an 
 irregular way of proceeding, that was not con- 
 fiftent with the rules of law obferved in other 
 cafes, and more efpecially in criminal pro- 
 ceedings, in which, in all other inftances, the 
 greateft flridnefs is required. And it was 
 often made ufe of at the trial, by the defen- 
 dant's counfel, as an argument to the jury, to 
 perfuade them not to find the defendant guilty, 
 lince the counfel for the crown had not made 
 good the whole of the charge againft him, but 
 had failed with refpecV to fo material an article 
 as the falfehood of the paper complained of. 
 " For, faid they, if the law be really fo fevere 
 as to confider the publication of a truth as a 
 public crime, and deferving of public pu- 
 nifhment, it muft, at leaft, be allowed, that it 
 
 is
 
 [ 9 ] 
 
 is a lefs crime than the pubi'fcation of the 
 fame things would be, if they were hUe ; and 
 therefore, the defendant, v;ho is only proved 
 to have publilli^d ihe writings in queftion with- 
 out any proof tliat they are falfe, ought not 
 to be cop.fidered in the lame light, and made 
 liable to be punifhed in the fame manner, as 
 if it had been proved that tne faid writings 
 were falfe, as he will be, if the jury (hould 
 find him guilty upon this information." This 
 argument ^which I take to be unanfwerable,) 
 was frequently made ufe of by the counkl 
 for the defendants upon the trial of thefe in- 
 formations, while the charge of the falfehood 
 of the libel, or writing, complained of, ufcd 
 to be inferted in them : and ir, probably, might 
 fometimes prevail with the juries, (notwith- 
 ftanding the directions of the judges to the 
 contrary,) to find the defendants not guilty. 
 Sir Fletcher Norton, therefore, feeing that the 
 infertion of this charge of falfehood in thefe 
 informations tended only to hamper the pro- 
 ceedings of the ofricers of the crown "paind 
 the publifhcrs of fcditious libeh, refolvcd to 
 leave it out for th^- future in all the informa- 
 tions of that kind of which he was to have 
 the management ; in doing which bethought 
 himlclf fufficiently warranted by the preceding 
 C declarations
 
 [ lo i 
 
 declarations of the judges on various occafions, 
 that this charge of falfehood was an mmate- 
 rial p2iit of every information for a fcditious 
 libel, which the profecutor was not bound to 
 prove, nor the defendant permitted to difprove. 
 And it is faid, that Sir Fletcher's fucceffors in 
 office have followed his example. And thus, 
 ever fmce that profecution of Mr. Wilkes for 
 the publication of the famous number 45 of 
 the North-Briton, thofe informations have been 
 drawn up without alledging, that the writings 
 complained of in them were falfe; and the 
 profecutions of thefe offences have gone on, 
 in this refped more fmoothly than before, 
 being rid of all the difficulties, which the in- 
 fertion of that charge of falfehood ufed to 
 give rife to. 
 
 I fay then, that in an information for writing 
 and publifhing a feditious libel, which is not 
 charged to be falfe as well as malicious and 
 fcandalous, there are only the four allegations 
 before-mentioned, to Vvit, firft, that the de- 
 fendant wrote it j 2dly, that he publi{hed it ; 
 3dly, thathe had a bad intention in publiffiing it ; 
 and 4thiy, that the paper has a mifchievous 
 tendency, or a tendency to produce certain 
 bad effeds that are defcribed in the informa- 
 tion,
 
 [ JI ] 
 
 tion, fuch as alienating the afFedions of his 
 Majefty's fubje^ts from his Majefty's perfon and 
 government, or raifing jealoufies in their minds 
 againfl the parliament or the courts of juftice, 
 and the like. Now thefe allegations, I con- 
 ceive, to be all matters of htt. The two firft 
 of them, to wit, the having writ the paper, 
 and the having publiflied it, are univerfally 
 allowed to be fo : but the two latter, to wit, 
 the intention of the publiiher and the ten- 
 ilency of the paper to produce the mifchievous 
 effects defcribed in the information, have been 
 fometlmes declared by the judges to be matters 
 of law, oTy (as they have exprelTed it,) infer- 
 ences of law drawn from the fadt of publica- 
 tion, and fit only to be confidered and deter- 
 mined by the judges, without the interference 
 of the juries. But this feems to be a modern 
 dodrine of the jadges, that has been adopted 
 by them only fince the time when Lord Ray- 
 mond was chiefjuftice of the king's-bench. For, 
 before that time we find many judges, (and thofe 
 too, fome of them men of great character for abi- 
 lities and learning in the law, and others of them 
 great friends to the royal prerogative, and to a 
 rigorous method of government,) who were of 
 opinion, that both the intention of the writer 
 or publifhcr of the paper, and the tendency 
 
 C 2 of
 
 [ ,2 ] 
 
 of the paper to produce certain 111 effedls, were 
 proper ob)c(fls of the jury's confideration. And 
 this opinion, I conceive, to be agreeable to the 
 truth, for the following rcafonsr 
 
 In m;.king this enquiry into the true diftinc- 
 tion between matters of law and matters of 
 fafl, in the law-fenfe of thofe words, that is, 
 between mrtt;.:rs which are fit only for the 
 confideration of the judge?, and matters which 
 are tu cbj^^ds of the confideration and deter- 
 mination of a jury, I think, wc may affume 
 it as nn axiom, or fundamental maxim, which 
 every body mut> allow the truth of, that every 
 thing that can be proved by the tejiimojiy of'wit- 
 neJI'eSy is a fit ohjeB of the jurys confideration. 
 For of this fort of evidence, this ^Ar/^r/W evi-^ 
 dence, they are univerfally allowed to be the 
 proper judges : and the oath they take, v,/hen 
 they are impanneled, " to try the ilTue joined 
 between the parties and a true verditl give 
 according to tie evidence^'* plainly makes them 
 fo ; and, indeed, it gives them a power of 
 judging and determining according to other evi- 
 dence^ befides the teftimony of witnefTes, when 
 f ich other evidence is produced before them. 
 But it is fufiicicnt for the prefent purpofe, that 
 they (liould be ulicwed to be the true and pro- 
 per
 
 [ 13 ] 
 
 ptr judges of all that external evidence that 
 conlifts in the tefhmony of witneffes. We mufl:, 
 therefore, enquire, whether, or no, the inten- 
 tion of a man in publidiing a writing, and the 
 tendency of the writing to produce a par- 
 ticular ill efFedl, are matters which are capable 
 of being proved, or difapproved, by the tefli- 
 mony of witnefTcs. Now it appears to me, 
 that they moll manifeftly are capable of being 
 fo proved, or difapproved. For, firfl:, as to the 
 intention. Who can doubt but that proof may 
 be given by witnefles, that the paper was 
 published with an innocent, or even a good 
 intent, or, in fome cafes, with an abfence of 
 the bad intent alledged in the information, and 
 without which there can be no guilt in the 
 publidier ? This may be eafily ilKiftrated by 
 the following examples. It is allowed upon 
 thefe profecutions, that thf. delivery of a fingle 
 piper from one perfon to another (whether 
 the paper be in print, or manurcripr,) is an ad: 
 of publication. Suppofe, therefore, that it could 
 be proved, that the defendant, who was pro- 
 fecuted for publifhing a fcditious paper, and 
 who had been already proved to have delivered 
 It to another perfon, that is, to havr publifhed 
 it, was an illiterate man, who could neither 
 write nor read j and that he knew nothing of 
 
 its
 
 [ H J 
 
 its contents; and that he was a fervant to a 
 printer, or bookrelltT, (as, for inftance, their 
 porter,) and had delivered the p^iper, by his 
 raafler's order, amongft other papers, or par- 
 cels of goods. Certainly this proof would be 
 material to the qutftion, whether the defen- 
 dant was guilty, or not, of the crime imputed 
 to him by the information, and would be fuf- 
 ficient to thew, that he had not that ill inten- 
 tion in publifliing the paper, which was ne- 
 cefiary to make him guilty of that crime, and 
 conftquently would be a ground for his ac- 
 quittal. And, as this proof would be extra- 
 neous to the paper itfelf, and could only be 
 given by witnefTes, it could be given only to 
 the jury, who are confefTedly the judges o^ air 
 the evidence that is delivered by witnefTes in 
 every caufe. If, therefore, the information were 
 brought againft fucb fervant, or porter, he 
 ought evidently to be acquitted by the jury on 
 account of this abfence of the criminal inten- 
 tion imputed to him in the information. If, 
 indeed, the information was brought againft 
 the bookfeller himfelf, iniiead of his porter, 
 and the fame proof was to be produced againft 
 him as has been juft now fappofed to have 
 been brought againft his porter, to wit, that 
 he had delivered the paper to another perfon 
 
 with
 
 I ^5 1 
 
 with bis own hand, but that (though he was 
 n^illed in reading and writing,) he had not 
 read it, and did not know its contents at the 
 time he delivered it, this, perhaps, might not 
 be deemed fufficient to excufe him from the 
 charge of publishing it with a criminal inten- 
 tion, bccaufe it was his duty, as a matler- 
 bookfeller, to attend to the nature of the things 
 he publi(})cd, and examine them, or caufe 
 them to be examined by other proper perfon?, 
 before he ventured to make them public. I fay, 
 it is pofiible that he might, in fuch a cafe, be 
 held guilty of the criminal intention imputed to 
 him in the information j though I muft con- 
 fcfs, I do not think it quite clear that he ought 
 to be fo. And even if, upon an information 
 againft a bookfcller for publishing a feditious 
 libel, it fliould be proved, that the fcrvant, or 
 fliopman, of fuch bookfeller, had delivered a 
 feditious paper to a purchafer, by virtue of his 
 maker's general directions to him to attend in 
 the fhop and Icll books to his cuftomers, fuch 
 a delivery by the fervant migfit, perhaps 
 (though I am not without fome doubts about 
 it,) be held good prefumptive evidence of an 
 intention in the mafter to publiHi it, although 
 it fliould be proved that the mafler himfelf 
 knew nothing of the contents of it ; becaufe 
 
 it
 
 t 16 ] 
 
 It might be fald, in this cafe as well as in the 
 former, that the mafter had been guilty of a 
 criminal negligence in not previoufly examin- 
 ing it, or caufing it to be examined, before he 
 ventured to make it public. But, if, in this 
 laO: inftance of the delivery of the paper by 
 the fcrvant of the bookfeller, it (hould be 
 proved, not only that the miller knew no- 
 thing of its contents at the time of its delivery^ 
 or publication, but that, at that time, and for a 
 week before the faid delivery of it, or even before 
 it had been received into his fhop, or ordered to 
 be fent to it, he had been fick in bed, and de- 
 lirious, and that the whole bufinefs of his 
 fliop had been condudted by his foreman, he 
 mufl:, I prefume, in confequence of fuch evi- 
 dence, be efteemed free from the intention of 
 publifhing it imputed to him in the informa- 
 tion, notwithftanding it had been publifhed in 
 confequence of his general dire6tions to his fcr- 
 vant to fell books to hi^: cuftomers j becaufc he 
 would, in fuch a cafe, have been incapable, 
 at the time of the publication of fuch paper, 
 of fuper-intending the bufinefs of his flicp, and 
 examinif^g the books that were brought into 
 it, and confcquently would not have been guil- 
 ty cf the criminal negligence above-mentioned : 
 and therefore, in fuch a cafe, he muft, 1 pre- 
 fume
 
 [ '7 ] 
 
 funic, be acqaittsii. Now, in all thei'e cafes, 
 ihe proofs here mentioned, (which relate to 
 the intention of the defendant in publifhing 
 the paper in queflion) could he given only by 
 witnellc:s, and confequently could be given 
 only before a jury : and, llierefore, the inten- 
 tion of the defendant in publilhing the paper 
 is a proper objcd: of the jury's conlideration. 
 
 Many more inftances might be brought to 
 fhcWi that the intention of a man in writing, 
 or publifliing a paper, (or, indeed, in doing 
 any other ad:, of which a moral agent is ca- 
 pable,) may be proved, or dilproved, by the 
 teftimony of witnefles, and confequently is a 
 fit fubjecl for the conlideration of a jury. And 
 in moft cafes it can be proved no other way. 
 Witnefles may prove, that the writer of a libel 
 confciTed to them, or declared to them with 
 triumph, that he wrote the paper in queflion 
 on purpofe to raifc fuch or fuch a difturbance, 
 to caufe a mutiny in the army or the fleet, 
 or a refillance to a new tax, or to fome other 
 a<ft of government. Or they may prove, that 
 certain praifcs given to particular perfons in 
 the libel, are meant ironically, and contain 
 the Icvereft cenfuresj — that they heard the 
 writer confefs he meant them fo_, and declare 
 
 D that
 
 [ i8 ] 
 
 that he hoped that the world would undef^ 
 Hand them fo j — that they know that the per- 
 fons fpoken of in the paper, are not ufually 
 commended for the virtues therein afcribed to 
 them, but are reproached by their enemies for 
 the want of them, and confequently, that the 
 paflage is to be underftood ironically. Such 
 evidence would be highly proper and ufeful 
 towards afcertaining the criminal intention of 
 the writer of the paper in queftion; and with- 
 out fome fuch evidence, it will often be im- 
 poffible for either the judge, or jury, rightly 
 to underftand the meaning and drift of the 
 paper, or the intention of the writer in publifh- 
 ing it. Now, fuch kind of evidence, as it can 
 be given only by witneffes, can be given only 
 before a jury: and, therefore, the jury mufl 
 have a right to determine^, how far it tends to 
 prove, or difprove, the point to which it re- 
 lates, to wit, the criminal intention of the 
 publiflier of the paper. This feems to me to 
 be fo plain, that I am fomewhat afraid my 
 readers will blame me for dwelling fo long 
 upon the proof of ir, and be apt to fay in the 
 words of Cicero, concerning a man who fhould 
 t^ke great pains to prove that Alexander alone, 
 without the affiflance of his fbldierg, could not 
 have won the battle of Arbela, uteris in re non 
 
 duhid
 
 [ 19 ] 
 
 duhid argmnentis nan necejjarns. And indeed 
 I (hould not have thought it needed any 
 proof, if I had not feen il denied by per- 
 fons of great authority, who have afferted, 
 that the criminal intention of the publish- 
 er of a libel is not a matter of fa€t, or 
 inatier fit for the conflderation of a jury^ 
 but merely a matter of law, or an inference 
 of law from the naked fa(ft of publication, 
 which the judges only ought to make. Yet 
 ihefe very perfons of authority acknov/ledge^ 
 that the right of determining what the writer 
 vA the libel meant by the blanks and initial 
 letters, and the feigned names that are often 
 to be found in feditious libels, belongs to the 
 jury only; which is not yt^ry coniiftent with 
 the faid afiertion, fince thefe are a part of the 
 writer's inte?ition, which thofe perlbns con- 
 tend to be a mere inference of law. I hope, 
 therefore, upon the whole, that the reader, 
 who dares to make ufe of his own judgment, 
 and is not difpofed jurare in verba magijirt^ 
 will be fully convinced that the intention of 
 a man, in publidiing a feditious paper, is a 
 matter of fadt, in the kuv-fenfc of the word, 
 that is, an objed: of the evidence of witnefles, 
 snd of the conflderation and determination 
 
 D 2 of
 
 [ 20 ] 
 
 of a jiuy, as well as the very ac5l of publica^ 
 i'l^n iticlr. 
 
 It remains that we examine the fourth and 
 Inrt: allegation that is contained in one of thefe 
 iiiformations, to wit, the tendency of the 
 paper complained of to difturb the public 
 peace, or produce the other ill effects that are 
 iet forth in the information. Now this point, 
 I confefs, is of a more fubile nature than 
 either of the former three, and may be more 
 eafilv rcprcfciued as a mere point of law, or 
 inference of law (as it is called) to be col- 
 leded from the perufal of the paper itfelf, 
 And yet, I think, upon a clofe examination, 
 it will appear to be a matter of fa(ft, or a pror 
 per fubjedt for the confideration of a jury, as 
 well as the three former points. 
 
 In order to difcover whether, or no, the 
 tendency of a particular paper is a matter of 
 fad, or a fit objedl of the confideration of a 
 jurj', we muft enquire whether, or no, it can 
 be proved, or difproved, by the tefllmony of 
 witnefles. For, if it can, it is a matter of 
 fadt, and the jury have a right to confider and 
 determine it. Now it is certain that thjs 
 tendency can in mofl, if net in all, cafes be 
 
 either
 
 [ 21 ] 
 
 either proved, or difproved, by witnefiess 
 though it may alfo, in (ome cafes, be col- 
 lecfted from the mere perufal of the paper, 
 li^ the paper contains blacks and initial let- 
 ters (as mofl: of thefe papers do,) then it 
 is mod: evident that, till the meaning of thofe 
 blanks is afcertained, the tendency of the 
 paper cannot be known; and the right of 
 afcertaining the meaning of thcfe blanks is 
 confefled on all hands to belong to the jury. 
 Therefore in thefe cafes the right of deter- 
 mining the tendency of the paper muft belong 
 to the jury. And, if the paper contains no 
 blank?, but is full of allufions to perfons of 
 great rank and power defcribed under feigned 
 names by circumQances that are peculiar to 
 them, it is neceffiry to have witneflcs to prove 
 ihat thofe circumftances relate to the faid 
 perfons, and confequently that they are the 
 perfons meant to be pointed out to the fcorn 
 and indignation of the public by the writer 
 of the paper. Or in fuch a cafe, the witnefles 
 may teftify that they heard the defendant, 
 the writer cf the paper, himfelf, fay that he 
 meant the fr.id perfons by the faiJ delcription, 
 and that he hoped the public would not fail 
 to underfland him. Or they may teft'fy that 
 they have ofccn heard him utter the fame 
 
 invCLlivcs
 
 [ 22 ] 
 
 inve(ftives ngainfl thofe perfons p.s are con^ 
 tained in the paper in queftion, though with" 
 out ccnfefiing iliat he meant to delcribe thofe 
 perfons in the faid paper, or even that he was 
 the writer of it. All thefe various kinds of 
 evidence would be adn^iflible in fuch a cafe to 
 prove that the allufions in queflion did relatq 
 to the faid perfons of rank and power ; wiih^ 
 out which relation the faid paper would be 
 quite innocent and inoffeniive, and have no 
 tendency to difturb the public peace. This 
 tendency therefore of the paper complained 
 of to difturb the public peacCj or produce 
 the other bad efreds fet forth in the informa- 
 tion, is in all thefe cafes a thing capable of 
 being proved by witnefles, and v^hich indeed 
 can be proved no other way, and confcquently 
 is a fit objed: of the cor.fideraiion of a jury, 
 or, in the law-fenfe of the words, a matter of 
 fa(fl. And even, if we fuppofe the paper in 
 queftion to contain neither blanks, nor initial 
 letters, nor allufions to particular perfons un- 
 der feigned names, nor any other fjrt of dif- 
 guife whatfoever, (which feldom happens) but 
 to name all the perfons it means to fpeak of 
 by their known names and offices, yet even 
 in this cafe it is certain that witnefles may be 
 admitted to prove, or difprove, the tendency 
 
 of
 
 [ 23 ] 
 
 gI the paper^ that is, to convirn;, or to con- 
 troui and refute, that internal evidence of its 
 tendency, which, 1 acknowledge, will, in 
 fornc dcgTitCy rcfult from the hare perufal of 
 '.t. For witneffrs may be brought to prove 
 that it has adlually occafioned that difturbunce 
 which it Teemed to be intended to create, as, 
 for inilance, that it has excited a fpirit of 
 dillatisfadtion in the fleet or the army, or a- 
 g^infl the adminiftration of juflice by the 
 king's courts, or the like. Such evidence of 
 the paper's having produced fuch ill efFefts 
 would be the fcrongert: evidence poflible of 
 its tendency to produce them. And, on the 
 other hand, if a paper was writ that con- 
 tained a real panegyric upon a great man, 
 couched under the form of a fevcre invedtive, 
 afcribing to him thofe vices from which he 
 was knov^n to be peculiarly exempt, and de- 
 nying hitn thofe virtues in which he was 
 known mod to exceil, (as, for example, call- 
 ing the great duke of Marlborough an ill- 
 bred, paffionate, tyrannical man, that was 
 utterly ignorant of the art of war, and quite 
 given up to drunkenntfs, when he was known 
 to be the calmcfl-tempered, miKiefl:, bell- 
 bred gentleman of his age, of great fkill in 
 the art of war, and very temperate,) and an 
 information fliould be brought againft the 
 
 writer
 
 [ 2+ I 
 
 tcriter of it for writing and publifhing a fe- 
 ditio'is libel, it would in luch a cafe be lawful 
 for the defendant to call witnefies to prove 
 that the great man fpotien of in the paper was 
 lo eminently free from the vices imputed to 
 bim iri it, that it could only be underftood, bv 
 all perfons who had any knowledge of his cha- 
 radlcr, as a panegyric upon him conveyed un- 
 der the form of an invetftive, and that it had 
 been generally fo underftood by all the world, 
 and confcquently could have no tendency to 
 excite thofe diliurbances which a belief of his 
 having thofe vices would probably occalion. 
 And if the jury believed thefe vi'itnefles, and 
 confequently were of opinion that the paper 
 had not the pernicious tendency afcribed to it 
 in the information, (and which from the mere 
 perufal of it, without a knowledge of the cha- 
 radier of the perfon fpokcn of in it, one would 
 be apt to think belonged to it,) it would be 
 their duty to find the defendant Not guilty. In 
 the next place 1 will fuppofe the oppofite cafe 
 to the former, to wit, that of a fevere in- 
 ventive againft a great man, conveyed under 
 the form of a panegyric, commending him 
 for virtues which he was generally thought to 
 want, without any blanks, initial letters, or 
 feigned names. In fuch a cafe it would be 
 
 lawful
 
 [ 25 ] 
 
 lawful for the profecutor to produce witnefTes 
 to prove that the writer of the paper was a 
 bitter enemy of the great man thus ironically 
 commended in it; — that they had often heard 
 him expreis a very bad opinion of him, and 
 deny him the virtues afcribed to him in the 
 paper, and afcrihe to him the oppofite vices ; — 
 that they themlelves therefore underftood the 
 paper to be meant ironically, and that they 
 had met with feveral other perfons who had 
 
 all underftiod it in the fame manner ; 
 
 that not only the writer and the other enemies 
 oF the great man, but even moft of his friends 
 were of opinion that he was not intitled to 
 the praifes beftowed on him in the papcrt 
 and that they, therefore, on that account, (as 
 well as on account of the known enmity of 
 the writer againfl the great man,) believed 
 thofe praifes to be meant ironically, and in- 
 tended to bring him into public odium and 
 contempt ; — and that they adlually had pro- 
 duced that effe(5t, and raifed a great difguft 
 againft him in the perfons who were moll 
 conneded with him, and whofe chearful 
 obedience, afiiftance, and concurrence, were 
 moft ncceflfary to his difcharging the duties of 
 his great office with fuccefs and advantage to 
 the public. If thcfe things were made out to 
 
 E the
 
 [ 26 ] 
 
 the fatisfadion of the jury, it would be theit 
 duty to find the writer of the paper guilty of 
 publilhing a feditious libel, notwiihftanding 
 the apparent inoffenfivenefs of the paper, or 
 its want ot tendency to produce any ill efFe<^» 
 fo far as its tendency could be colled:ed from 
 the mere perufal of it: fo that in this, as well 
 as in all the former inflanees, the tendency of 
 the paper would be afcertained by the tefti- 
 mony of witnefTes, and would confequently 
 be the objed of the confideration and deter- 
 mination of the jury. We may therefore, I 
 think, fafely conclude that this fourth and 
 laft allegation, contained in an information 
 againfl a man for writing and publifhing a 
 feditious paper, or libel, to wit, its tendency 
 to difturb the public peace, or to produce 
 the other bad effeds fet forth in the informa- 
 tion, is a proper objedl of the confideration 
 and determination of a jury^ or, in the law- 
 lenfe of the phrafe, a matter of fad, as well 
 as the three former allegations, of the writing 
 the paper, the publifhing it, and the intention 
 with which it waspubliihcd. 
 
 I have hitherto confidered thofc things only 
 as being matters of fad, or objcds of a jury's 
 
 confideration.
 
 r 27 1 
 
 confideration, which are capable of being 
 proved, or difproved, by witncfles; becaufe 
 this is the plained and cleareft mark of dif- 
 tindion between them and matters of law 
 that can, as I apprehend, be given. But I 
 conceive that the province of the jury extends 
 a degree further than this, and that they have 
 a ri^ht to make all fuch inferences from fa(fls 
 as may be made without any fkill or know- 
 ledge of the law, even if no new evidence 
 could be given by witnefTes in fupport of fuch 
 inferences. For fuch inferences from fadts 
 are merely operations of reafon, which is a 
 talent common to all men, to jurymen as 
 well as to judges: and, with refpe(5t to the 
 meaning of feditious papers, and the inten- 
 tions of the publiChers of them, and their ten- 
 dency to produce certain bad efFe(^s dated in 
 an information, it often happens that jurymen 
 are better able to make thefe inferences than 
 judges, even where no evidence fhould be 
 given by witnefTes concerning them ; becaufe 
 they have often a more extenfive iiiteixourfe 
 with the reft of mankind, and a greater know- 
 ledge of the bufincfs and converfation of the 
 world, than judges (who are men of retired 
 lives, given up to the ftudy of the law, and 
 the difcharge of the duties of their refpedable 
 E 2 offices,)
 
 [ 28 j 
 
 cfiices,) can be fuppofed to have. Thofe in- 
 ferences therefore ought not to be called inr 
 I'erences of law, but infererKes of fa6t, being 
 a fecondary, or lubcrdinate, fpecics of facts, 
 derived frooi the more limplc and diredt facfts, 
 of v\'hich they are the circumftances or pro- 
 perties. For fadts may be divided into two 
 clafTes, which it may perhaps be of feme ufe, 
 in confidering this fubjed, to difiinguifh by 
 the names of frhriary and Jecondary JaSiS' 
 The former, or primary^ fads are thofe plain 
 and fimple fadls which are the objedls of the 
 fenfes, and are generally proved by the pofitive 
 ttllimony of witnefTesj fuch as, whether fuch 
 a man gave fuch another a blow, or a wound 
 with a fword, or fired a piflol at him, or 
 whether fuch an one delivered a particular 
 paper to fuch another; though even thefe may 
 lometimes be colledl:ed by inference from cir- 
 cumftances. Thefe things are fo plainly 
 matters of fa6l, that no fophiftry in the world 
 can make them appear to any body to be mat- 
 ters of law. But the latter, or fecondary^ 
 fadts are fadls of a more abftra<5t, or remote 
 kind, and may often be colledfed from the 
 former by mere reafoning, without the help 
 of external teflimony. Such is the intention 
 
 of
 
 [ 29 ] 
 
 of a man in breaking open and entering a 
 houfe by night: which, if it be to commit a 
 felony, makes the breaking and entering the 
 houfe amount to the crime of burglary, which 
 is punirhed with death ; bur, if it be to com- 
 mit a trefspafs only, (as, for inftance, to beat, 
 or to frighten, fomebody in the houfe,) makes 
 it only a mifdemeanour, which is punishable 
 by fine and imprilbnment. And fuch is the 
 intention of a writer in writing and publifliing 
 a paper againft the meafures of government; 
 which, if it be to raife a fpirit of difcontent in 
 the people agai^ft their governors, is crimi- 
 nal, and makes the writer and publiflier liable 
 to punifhment j but, if the paper is intended 
 only ?.s a petition to the king, or any inferior 
 magiftrate, praying him to defifl from a mea- 
 fure by which the petitioner thinks himfclf 
 aggrieved, and it is delivered only to the per- 
 fon from whom the redrefs is prayed, it is an 
 innocent intention, and cannot make the adl 
 of puhlifliing the paper the objec^t of punifli- 
 ment. In all thefe cafes the intention of [he 
 party accufed is a matter of fa6l, as well as 
 the giving a blow, or a wound with a fword, 
 or firing the piftol, or breaking and entering 
 the houfp, and tlie writing and publifhing the 
 paper, though it is of a lefs grofs and obvious 
 
 nature
 
 [ 30 ] 
 
 nature than thofe other fadts, and lefs capable 
 of being proved by the pofitivc teftimony of 
 witneffes, and fometihies can only be col- 
 leded from thoie other fads by reafoning 
 upon them; I fay, fcmetimes^ becaufe for th^ 
 nioft part, (as we have fcen above,) it will 
 alfo admit of confirmation and explanation by 
 the teftimony of witnefies, Thefe fads there- 
 fore, from their being concomitant circum- 
 ftances of the former, or more fimple, fads, 
 may with fome propriety be called fecondarv 
 fad?, if the former be called primary ones. 
 And this diftindion may perl^ps be ufeful to 
 prevent thefe fecondary fads from being con- 
 founded with matters of law, with which they 
 agree only in this point, to wit, that fome 
 degree of reafoning is to be ufed in difcufiing 
 and inveftigating them both. But the differ-^. 
 cnce between the cafes is this. The reafon- 
 ing to be ufed in the inveftigation of matters 
 of law is grounded on the knowledge of the 
 law, and can only be ufed by perfons who are 
 poffelTed of that knowledge j whereas, in the 
 cafe of thefe fecondary fads, the reafoning to 
 be ufed is grounded on common fenfe and a 
 knowledge of the world, and the prefent tran- 
 ladions of it, and the flories that are told of 
 perfons in adive life ar.d in offices of great 
 
 rank
 
 I 3« ] 
 
 rai.k and power; all which (as we before 
 obferved,) are things that are often better 
 known to jurymen than to judgts. And 
 therefore we may conclude, that if no evi- 
 dence could be produced by witnefTes to con- 
 firm or dii prove thefe fecondary fads, yet the 
 jury v^'ould ftili have a right to judge of them, 
 and to infer ihem from the primary fadls by 
 the exercife of their own reafon. But it al- 
 moA always (or, perhaps, abfolutely always) 
 happens that thefe fecondary fadls, though 
 they may in fome degree be inferred from the 
 primary fadts by mere reafoning, yet may be 
 alfo confirmed, or controuled and difproved, 
 by the pofitive teftimony of witnefiesj which 
 difiinguifhes them ftill more clearly from 
 matters of law, (in determining which the 
 teftimony of witnefies is wholly inadmifiible,) 
 and proves them beyond a doubt to be matters 
 £)f fad:, in the law fenfe of the phrafe, or 
 objeds of the confideration and determination 
 of a jury, according to the fundamental po- 
 fition above laid down, to wit, that fuch 
 matters are proper objcds of the confideration 
 and determination of a jury as are capable of 
 being proved, or difprovcd, by the evidence 
 of witnefTes. I conclude, therefore, that both 
 tbe intention of the writer and publisher of a 
 
 paper
 
 [ p ] 
 
 paper charged to be a feditious libel, and the 
 tendency of the paper to diflurb the public 
 peace, or produce the other mifchievous 
 effcds fet forth in the information (which 
 are fecondary fads in the fenle herein before 
 defined,) are proper objects for the confidera- 
 tion and determination of a jury, or, in the 
 ufual law-phrafe, matters of faff, as well as 
 the adual writing and publication of it. 
 
 If this conclufion is juft, the whole bufinefs 
 of a jury, upon the trial of an information 
 for writing and publifhing a feditious libel, 
 may be faid in few words to be thisj *' To 
 enquire into the condu(ft of the perfon charged 
 with having written and publifhed the paper 
 in queftion, by the means of the evidence of 
 witneiTes and of fuch fair inferences as they, 
 the jury, by their natural reafon and good 
 fenfe, are able to derive from the faid evi- 
 dence; and, having thus difcovered what the 
 conduct of the laid defendant, with refpedl 
 to the faid charge, has been, to compare it 
 with the conduct imputed to him in the in- 
 formation; and, if they find it to be the fame 
 with the conduct imputed to him in the 
 information in all points, to affirm the in- 
 formation, by finding the defendant guilty of 
 
 the
 
 I 3} 1 
 
 the charge in the manner and form fet forth 
 in the information, (for thofe are the words 
 ufed in a verdi<fl: of convidtion;) and, if" rhey 
 find his condud:, as proved by the evidence 
 to fall (hort of the condu<ft impu-cd to him 
 in the information in any of the four points 
 above-mentioned, to deny the information, 
 by finding the defendant Not guilty of the 
 charge in the manner and form Jet forth in 
 the information, which are the words ufed 
 in a verdi(5l of acquittal." This feems to me 
 to be an accurate and plain defcription of the 
 duty of a jury on the trial of one of thefc 
 informations. 
 
 When the jury have thus exercifed their 
 office of enquiring whether the defendant's 
 real condud has been commcnfurate with the 
 condu(ft imputed to him in the information, 
 and have determined that it has been fo, by 
 finding him guilty of the charge in the man- 
 ner and form fc:t forth in the information, 
 there Oill remains another point to be con- 
 fidered before judgment can be given againft 
 the defendant, which if^, whether the offence 
 fo charged and found by the jury is a public 
 offence, or an objedl of legal punifli'ncnt. 
 For, if it fliall be made appear by jaft and 
 
 F legal
 
 [ 34 ] 
 
 legal reafonings at the bar, that the writing 
 and publifliing the paper in queftion, though 
 it was done deliberately, and has the tendency 
 afcribed to it in the information, yet is not 
 an offence of fuch great and public confe- 
 quence as to be an objedt of legal punifli- 
 ment, it will be the duty of the court to 
 forbear giving judgment againft the defen- 
 dant, and to difmifs him with impunity, not-' 
 withftanding the vcrdid: of convidion found' 
 againft him by the jury. But this, I appre- 
 hend, is a matter which the judges only have a 
 right to deteimine, cither upon a motion made 
 before them on the behalf of the defendant 
 in arreft of judgment, or of their own accord, 
 without fuch a motion, if they of their own 
 accord come to be of opinion that the fa(fts 
 charged in the information do not conftitutc a 
 legal offence. For this is really and truly a 
 matter of law, and not a fecondary fa<5t, or 
 inference from other fadls, nor a matter to 
 which the teftimony of witnelfes is in any 
 degree applicable, (like the intention of the 
 writer and the tendency of the paper, and 
 other fuch fecondary facfts as have been 
 above mentioned,) and therefore is not a fit 
 objedt of the confideration and determination 
 ef a jury. An inftance or two will make 
 
 this
 
 I 3J 1 
 
 this matter very plain. It is certainly a 
 public and punifhable offence to publifh a 
 paper tending to difgrace and vilify the king 
 upon the throne, and alienate the affeiftions of 
 his fabjeds from his perfon and government, 
 more efpecially if the imputations thrown out 
 againft him are falfe. This was the offence 
 committed by Do(5lor Shebbeare in the reign 
 of our late gracious Sovereign, George II. 
 for which, in the opinion of moft people, he 
 was defervedly punifhed. But, if the fame 
 abufe were now to be re-publi{hed againft 
 the fame good monarch, it may be doubted 
 whether the publifher of it would be an ob« 
 jc(ft of legal puni(hment, though he would 
 juftly incur the cenfure, and excite the indig- 
 nation, of all good men that remembered the 
 jull and prudent government, and refpedtcd 
 the memory of our late fovereign. For, as 
 it can no longer tend to produce the fame bad 
 cffedls as formerly, the monarch, who was 
 the objedl of it, being no longer among the 
 living, it fecms unrcalonable to fuppofc that 
 it could be the object of that legal cenfure 
 which was grounded on its tendency to pro- 
 duce thofe bad effedls. Yet it might be laid, 
 on the other hand, that it ftill had a tendency 
 to produce fome bad effects, though not the 
 fame as before, nor of fo great importance ; 
 Y 2 and
 
 t 36 1 
 
 tnd that, on account of its faid tendency to pro- 
 duce ihefe leffcr bad effc(fts, it ought ftill to 
 be the objc^ft of fome, though a lefler, legal 
 puir.ihment. And to this it might be replied 
 on the behalf of the re-publillier, that every 
 B(5l that m a fmall degree has a tendency to 
 •produce feme ill efFcc^l, ought not to be the 
 cbj;^: of a legal punilhmeni, and is not (o by 
 the law of England ; — that, for example, the 
 moft fpurrilous words fpuken, (but not vvrit-? 
 ten,) even cf a peikn now alive, are not the 
 obje(ft of fuch pumllinKnt, but only of a 
 ?civil adlion ; and many Icurrilous words are 
 Jiot even the objeft of a civil acftion, but only 
 ^f a proceeding in the ecclefiaftical court of 
 -the bithop of the diocefe, carried on pro 
 ■Jalute anima^ et correBione morum y — that only 
 thofe actions are the objects of legal puniih- 
 ment in the temporal courts which have a 
 tendency to produce fome v^ry pernicious 
 public confequences, and difturb the admi- 
 niftration of the government ; and that this 
 was not likely to be the effedt of a republi- 
 cation of the abufe upon our decealed fover- 
 eign } and confequently that fuch a republi- 
 cation was not the objed: of legal punilhment. 
 Now in all this argument the teflimony of 
 witfteflics is evidently quite inadmiffible ; nor 
 c^n mere reafon, or common fenfe, deter- 
 mine
 
 [ 57 ] 
 
 mine on which fide the truth lies : but U 
 is plain that this can only be determined 
 by the principles of the criminal law of 
 England, and the decifions of former judges, 
 iipon lolemn arguments, in cafes of the fame 
 kind, or that are nearly fimilar to it, if fuch 
 are to be found : and, therefore, it is truly a 
 matter of law, and muft be determiufd by 
 the judges only. But this does not at all in- 
 terfere with the right that has been above 
 afcribcd to the jury, of determining the truth 
 of all the charges contained in the informa- 
 tion, or declaring whether, or no, the cooi- 
 -<iu£l of the defendant, as proved by the wit- 
 relTes, agrees, or is commenfurate, with the 
 condudt imputed to him in the information, 
 with refpcdt to all the allegations of which the 
 information is compofed. 
 
 I have now gone through all I had to offer 
 in the way of reafon and argument, con-* 
 cerning the extent of the puoviiice of the jury 
 in the tr4al of an information for publifliing 
 a fcditious libel, 1 am fenfible, I have ufed a 
 great number of words on this occafion, and 
 even fome repetitions, which ] knew not well 
 Kow to avoid, and which, 1 therefore hope, 
 the reader will cxculc ; more clpecialiy as 
 the reafon ofn>y treating this matter fo fully 
 
 was
 
 [ 3« 1 
 
 Vra$ that he might clearly fee the grounds 
 upon which I have prefuracd to differ in opi- 
 nion from thofe learned and rcfpediable per- 
 fons who have declared, that the intention of 
 the publifher of a kditious paper is a matter 
 of law, which the jury have no right to 
 confider. The great refpet^ due to thofc 
 emrnent perfons made me at firfl almoft afraid 
 fa differ from them, and excited me to exa- 
 mine the fubjcd: with as much care and at- 
 tention as I was capable of beftowing on it ; 
 in eonfequence of which, 1 became perfectly 
 convinced, that their opinion was not well- 
 grounded. And the iame refped to their 
 authority made me afterwards cautious of ex- 
 prcfiing the opinion I had formed in oppo- 
 fition to that which ihey had declared, with- 
 out, at the Time time, fetting forth, in the 
 fulled manner I could, the rcafons upon 
 which I had prelumed to differ from them, 
 and adopt the other opinion. And now, 
 that I have ventured to ftate and maintain 
 that other opinion, I (hall (from the fame 
 motive of refpedt to ihofe great perfons) en- 
 deavour to confirm and fupport it by the 
 authority of other great perfons who formerly 
 held the fame high offices of judicature with 
 themfelves, oppoiing judge to judge, and chief 
 juftice to chief juftice, in at leaft equal num- 
 bers
 
 t 39 ] 
 betf, and marfhalling on my fide of the ar* 
 gument, 
 
 Pares aquihs, et pila minantia pilis ; 
 
 left the weight of thefe great modern autho- 
 rities (hould be thought to over-bear the ar- 
 guments, which, in the courfe of this en* 
 quirv, have been deduced from reafon only, 
 in favour of what I take to be the true opi- 
 nion upon the fubje(5t. 
 
 In the famous trial of the feven bifhops, 
 
 who were profecuted in the laft year of the 
 
 reign of king James II. by an information 
 
 j in the court of King's-bcnch for publishing 
 
 a feditious libel, Sir Robert Sawyer, (wha 
 
 had been attorney-general,) Mr. Finch, and 
 
 Mr. Somers, (who was afterwards Lord-chan- 
 
 ( cellor,) were of cour.Iel for the bi(hop?, and 
 
 ! Sir Thomas Poways, (the then attorney-ge- 
 
 ! neral,) and Sir William Williams, (the then 
 
 ! folicitor-general,) were of counfcl for the 
 
 ;j Crown, Sir Robert Sawyer contended, *' That 
 
 'I ** both the faifny of the paper, and that it 
 
 '1 " was malicious and feditious, were all mat- 
 
 11 ** ters of fa<5t to be proved j" and made this 
 
 I the firft head of his fpeech to the jury : fo 
 
 that
 
 i 40 ] 
 
 that here we fee, that the falfehood of the 
 paper, the malicious intention of the writer, 
 and the feditious tendency of the paper, are 
 all alTcrted by this learned lawyer to be mat- 
 ters of fad: and objeds of the confideration 
 of the jury. His brother-counfel held the 
 lame language. Mr. Finch expreflcd himfelf 
 thus : *' If you, gentlemen, (hould think 
 ** that there is evidence to prove the deli- 
 •< very, by the bifliops, of the paper fet forth 
 " in the information, yet, unlefs their pre- 
 •' fenting it to the king in private may be 
 " faid to be a malicious and (editions libel, 
 ** with an intent to ftir up the people to fe- 
 ** dition, and to diminiQi the King's prero- 
 ** gative and authority : unlefs all this can 
 ** be found, there is no man living can 
 •' find the bi(hops guilty upon this informa- 
 •* tion.'* This was ailerting, that the /"// ///- 
 tmtion of ftirring up difcontcnts in the minds 
 of the people againft the King, was an cfTen- 
 tial part of the charge, and one that the jury 
 ought to take into their coniideration, and 
 not leave to the judges as a mere inference of 
 law. Mr. Somers fpoke next, and faid. That 
 ** the paper could not poflibly ftir up fedi- 
 ** tion in the minds of the people, becaufe 
 " it was prefented to the King alone, Falfe 
 
 •• it
 
 [ 4> ] 
 
 " it could not be, becaufe the matter of It 
 " was true. There could be nothing of ma- 
 " lice : for the occafion was not fought ; the 
 *• thing was prefTed upon them. And a libel 
 ** it could not be, becaufe the intent was in- 
 ** nocent." The attorney-general, Powvs, 
 thereon faid, " That he (hould not now meddle 
 ** with what the defendant's counfel had of- 
 ** fered, becaufe it was not pertinent." And 
 then Sir Robert Wright, the chief juflice, in- 
 terpofed with thefe remarkable words : " Yes, 
 *' Mr. Attorney, I'll tell you what they offer ; 
 " which it will lie upon you to give an anfwer 
 «* to : they would have you (htw how this 
 ** has difturbed the goverrffnent, or dimi- 
 " nifhed the King's authority." Here thea 
 we have king James lid's chief juftice of the 
 King's-bench exprefly declaring in this ce- 
 lebrated trial at bar, that the tendency of tha 
 paper in queftion, to difturb the government, 
 ought to be made out to the fatisficftion of 
 the jury. Mr. Juftice Powell faid, " The 
 c* contrivance and publication are both mat- 
 " ters of fa6l, and, upon ilTue joined, the 
 " jurors arc judges of the fad:, as it is laid 
 " in the information." Mr, Jufticc Hollo- 
 way, after the evidence had been fummcd 
 up to the jury, fpoke thefe words : *' The 
 G *' qucftion
 
 [ 42 ] 
 
 •* queftion is, whether this petition be a li- 
 " be!, or no. Gentlemen, the e?id and intent 
 " of every acflion is to be confidered ; and like- 
 *' wife in this cafe we are to conlider the 
 *' nature of the offence that thcfc noble per- 
 «' Tons are charged with. It was for deli- 
 " vering a petition, which, according as they 
 " have made their defence, was with all hu- 
 *^ mility and decency that could be : fo that, 
 ** if there was no ill intent^ and they were 
 " not men of evil lives, or the like, to de- 
 ** liver a petition cannot be a fault, it being 
 •* the right' of the fubjedt to petition. If 
 *' you arefatisfied there was an ill intention of 
 ** /edition i or the like^ you ought to find them 
 *' guilty: but, if there be nothing in the 
 «' cafe of that kind, I think it is no libel. 
 «« It is left to you, gentlemen : but that is my 
 «< opinion." The jury are here cxprefbly di- 
 reded to confider, whether the bifhops had 
 any intention of fedition, or not, in prefenting 
 their petition to the King, and to find them 
 guilty, or not guilty, accordingly. So far was 
 this judge from thinking, that the intention 
 of the defendants was a mere inference of 
 law, which the jury had no authority to make, 
 Mr. Jnftice Powell went further dill, and 
 faid, tiiat- the falfshood of the paper, as well 
 
 as
 
 [ 43 ] 
 
 as the malicious intention of the publirtier of 
 it, and its tendency to difturb the goverR- 
 ment, ought to be proved : by which we 
 may obferve, by the bye, that the modern 
 opinion, " That the fah'ehood charged upon 
 " a hbel in an information, is not a material 
 " part of the charge, and needs not be proved," 
 was not at that time univerfally adopted 
 by the judges. His words are as follow : 
 " Truly, I cannot fee, for my part, any thing 
 " of fedition, or any other crime, fixed upon 
 " thefe reverend fathers. For, gentlemen, 
 " to make it a libel, it muft be falfe, it muH: 
 " be malicious, and it mu(t tend to fedition. 
 " As to the falfehood, I fee nothing that is 
 " offered by the king's counfel, nor any 
 " thing as to the malice. Now, gentlemen, 
 •* the matter of it is before you j you are to 
 *' confider of it, and it is worth your confi- 
 " deration, &.c." Such were the diredtions 
 of chief Juftice Wright, and Juftice HoUoway, 
 and Juftice Powell, at this famous iri.d : by 
 which we fee, that the intention of the de- 
 fendants in publirtiing the petition, or paper, 
 and the tendency of the paper to raile dil- 
 contents in the minds of tlie King's lubjedls 
 againft his government, were fo far from be- 
 ing confidered by them as mere inferences of 
 G 2 law
 
 [ 44 ] 
 law, which they, the judges, only had a right 
 to make, that they were recommended to the 
 confideration of the jury as the principal ob- 
 jeds, to which it was neceflary for them to 
 attend. And chief Juftice Holt appears to 
 have been of the fame opinion, when he 
 fummcd up the evidence to the jury upon 
 the trial of the information againfl Tutchin, 
 the writer and publifiier of certain papers, 
 called T^he ObfervatorSy in the year 1704. His 
 words, on that occafion, were as follows : 
 *' Gentlemen of the Jury, this is an infor- 
 «' mation for publifhing libels againfl the 
 *' Queen and her government." And then, 
 after dating the proof of the publication, and 
 reading fome pafTages from The Obfervators^ he 
 goes on in this manner : *' So that, now you 
 " have heard this evidence, you are to con- 
 " fider whether you are fatisfied that Mr. 
 ** Tutchin is guilty of writing, compofing, 
 " and publifliing thefe Libels. They fay they 
 " are innocent papers, and that nothing is a 
 " Libel but what reileds upon fome parti- 
 " cular perfon. But this is a very ftrange 
 *' doctrine, to fay it is not a libel refleding 
 " on government to endeavour to poffefs the 
 " people that the government is male-ad- 
 *' minifier'd by corrupt perfons that are em- 
 
 ** ployed
 
 [ 45 ] 
 
 «' ployed in fuch and fuch ftations, either in 
 ** the navy or army. For it is very neceffary 
 " for all governments that the people fhould 
 ** have a good opinion of it : and nothing 
 " can be worfe than to endeavour to procure 
 " any animofities as to the management of it. 
 '* This has been always looked upon as a 
 " crime; and no government can be fafe, 
 " without it be punilhed. Now, you are to 
 *» confider^ whether thofe words, I have read 
 *' to you, do not tend to beget an ill opinion 
 " of the adminiftration of the government.'* 
 Here we find this able Chief Juftice exprefsly 
 directing the jury to confider the tejidency of 
 the papers in queftion, to wit, Whether they 
 do not tend to beget an ill opinion of the 
 adminiftration of the government ? How dif- 
 ferent is this condud from afTerting that this 
 tendency is a mere inference of law, which 
 the judges only have a right to make, with- 
 out any concurrence of the jury? From thefe 
 authorities, together with the reafons above 
 fet forth, I flatter myfelf, that the reader 
 will join with me in concluding, that, upon 
 the trial of an information for writing and 
 publiibing a feditious paper, the jury have a 
 right to determine all the particulars of the 
 charge, the malicious intention of the writer, 
 
 and 
 
 /
 
 [ 46 j 
 
 and the mifchievous tendency of the paper, 
 as well as the more limple fads of the writ- 
 ing and publication of it, and the meaning 
 of the blanks and feigned names in it ; and 
 that the only qutftion, which the judges are 
 to determine, is, whether, if the whole in- 
 formation, with all the allegations contained 
 in it, the malicious intention of the writer, 
 and the riiifchievous tendency of the paper, 
 be admitted by the defendant, or found by 
 the jury, to be true, the condudi fo defcribed 
 and found, is an obje6l of legal cenlure. I 
 could willi, that even this Ip.O: particular were 
 alfo to be determined by the jury: but it 
 rather, I mufi confefs, appears to me to belong 
 to the province of the judges. 
 
 A N
 
 A N 
 
 E N Q^ U I R Y 
 
 Into the Qjj e s t r o n, 
 
 WHETHER JURIES ARE, OR ARE NOT, 
 JUDGES OF LAW, AS WELL AS OF FACT ; 
 
 With a particular Reference to the 
 
 CASE OF LIBELS.
 
 [ 49 ] 
 
 ^tm^.w! tuf^Mn^mmtme^Km 
 
 A N 
 
 E N Q^U I R Y, &c. 
 
 TH E importance and advantages 
 which arlfe to the liberties of the 
 fiibje(5l, from trials by jury, are fo univer- 
 fally acknowledged, that, io EngHJhtnen, it 
 may be prefumed, little need be faid upon 
 tliat head. This great privilege has ever 
 been the pride and the boafl of our ancef- 
 tors ; it has excited the higheft applaufe, 
 and been the admiration of foreigners , and 
 , is juftly confidered as the greateft fecuricy 
 of our lives and properties, and the beft de» 
 fence againft tyranny and arbitrary power. 
 
 Bat this great privilege, thougli too 
 
 ftrong to be battered down, may vet be lo 
 
 undermined by fubrle pretences, as to be reu- 
 
 H dcrcd,
 
 [ 50 ] 
 
 dered, in many cafes, of very little worth. 
 In particular, fome pofitions have been laid 
 down by certain Lawyers, with refped: to 
 the dod:rine of libels, which have the moft 
 fatal afpe<5t upon the liberty of the prefs ; if 
 they do not tend to a total annihilation of it. 
 Thus it hath fometimes been afferted, from 
 our benches of juftice, and again repeated 
 at a period of time not very remote from 
 the prefent, that jurymen, particularly in the 
 cafe of libels, are judges of the Fact only^ 
 and not of the Law, That is, that if any 
 man is charged in any information or in- 
 diclmentj with writing, printing, or pub- 
 liQiing, any book, pamphlet, or paper, which 
 is in fuch information or indidment ftiled a 
 libel, it is not the bufinefs of the jury to 
 enquire, whether fuch book, pamphlet, or 
 paper, really be a libel, or not; but only 
 into the fimple matter of fact, whether 
 the perfon {<} charged be the author, printer, 
 . or publifher of fuch book, pamphlet, or pa- 
 per ; and to leave the matter of the libel, 
 the determination whether it be a libel or 
 not, entirely to the Court. 
 
 But
 
 f 5« ] 
 
 But If this principle be once admitted, a 
 very moderate degree of reiledion may be 
 fufficient to convince us, that for the people 
 of England then to pretend to be in poflefiion 
 of a freedom of the prefs, would be ridiculous. 
 They would then have no liberty of the prefs, 
 but what the judges of the court of King's 
 Bench might think proper to grant them ; 
 who, if they were influenced by any the mod 
 infamous and corrupt miniftry, or by any 
 other motive, might punilh as a violator of the 
 laws, any author, printer, or publisher, for 
 writing, printing, or publifhing, any book 
 or paper whatever, which they might be dif- 
 pleafed with, and think proper to declare a 
 libel. This then being the natural, the un, 
 avoidable confequence of this pofnion, That 
 jurymen are not, in thefe cales, to judge of 
 the law, as well as of the fad ; a pofition re- 
 plete with the mofl fatal confequences to the 
 liberties of this kingdom ; it is of the high- 
 eft importance to enquire, whether it has 
 any juft foundation in law or in reafon. 
 
 Now that jurymen have a legal right to 
 
 determine the matter of law, as well as ihc 
 
 matter of fadt, in the cafe of libels, and in 
 
 H 2 other
 
 [ 52 ] 
 
 Other cafes, if they think proper, appears 
 
 very dear. In Magna Charta^ cap. 29. 
 
 it is declared, *' that no freeman (hall be- 
 ** taken, or imprifoned, nor be difleized of 
 ** his freehold, or liberties, or free cuftoms, 
 ** or be out-lawed, or any other way deftroy- 
 " ed ; nor (hall we pafs upon him, or con- 
 " demn him, but by the lawful judgement 
 *' of his peers, ^c^ That is, that no man 
 can be legally punifhed, in any way what- 
 ever, without a fair trial by a jury of twelve 
 men ; and without their finding him guilty 
 of fome crime which the law declares pu- 
 nifhable. It cannot be fuppofcd to be con- 
 fiflent with this, that any jury (hould be ar- 
 bitrarily direded to bring any man in guilty, 
 when they are not convinced in their own 
 .minds, whether the action the accufed per- 
 fon is charged with be a crime or not. No 
 man (fays Magna Charta) (hall be puni(hed, 
 but by the laizful judgement of his peers -, it fol- 
 lows then that they are his proper judges ; 
 judges not in part only, but of the whole 
 matter; judges not only whether he hath 
 been guilty of the acftion alledged againft 
 him, but whether he hath been guilty of a 
 crime, 
 
 " A
 
 [ J3 ] 
 
 «< A Jury of twelve men (fays Lord Chief 
 ** Juftice Coke) are, by our law, the only pro- 
 '* perjudgesof the matter in iflue beforethem.** 
 And that great oracle of law, Littleton, de- 
 clares, § 368. " That if a jury will take 
 ** upon them the knowledge of the law up- 
 *' on the matter, they may." To which 
 Coke in his Comment thereupon, agrees ; 
 and we have, to the fame purpofe, the opi- 
 nion of a very refpt^ftable gentleman, who 
 held one of the higheft ttations in the law, 
 and who was as much diftinguiflied by his 
 knowledge in his profefTion, as by his inte- 
 grity and uprightnefs. 
 
 And it is notorious, that, in many cafes, 
 juries do conftantly judge of matters of law, 
 as well as fact. Wlien perfuns are indidtcd 
 for murder, it is a matter of law, whether 
 the adion committed, provided the fad be 
 proved, fall under the denomination oi mur- 
 ther^ man '/laughter, chance- tncdle)\ or /elf - 
 defence ; and yet thefe matters of law arc de- 
 termined by tb.e jury. The court inform 
 the jury, what it is that conflitutcs an adion 
 murder ^ man-Jlaiighter^ d>cc. and the jury 
 
 themfclvcs
 
 [ 5+ 1 
 
 (hemfclves apply thefe general principles of 
 law to the particular fadt which they arc 
 appo/nted to try, and then bring in their 
 verdidl according to their own judgement?, 
 *' All that the judges do (fays an old au- 
 " thor *) is but advice, though in matter of 
 ** lawy and it is the jury only that judges 
 " one guilty, or not guilty of murder, &c." 
 And in moft general iffues, as upon Not 
 Guilty pleaded in trefpafTes, breaches of the 
 peace, or felonies, though it be matter in 
 law whether the party be a trefpafler, a 
 breaker of the peace, or a felon ; yet the 
 jury do not find the fad of the cafe by itfelf, 
 leaving the law to the court j but find the 
 party guilty or not guilty generally. ** The 
 ** law (fays the author jufi: quoted) confix 
 " dering the great burden that lies upon 
 " the confciences of jurymen, has favoured 
 <* them with this liberty. They may take 
 " upon them the knowledge of what the 
 '* law is in the matter, or upon the truth 
 " of the fa(5t, as well as of the knowledge of 
 *' the fad > and fo give in a verdidt gene^ 
 
 • Seea Guide toEnglllh Juries, publiflied in 1682. 
 
 <* rally.
 
 t 55 ] 
 
 " rally, 'that the defendant is guilty or not T 
 And indeed even the very cuftom of bring- 
 ing \^fpecial verdidts, in thofe nice and intri- 
 cate cafes in which juries will not venture to 
 take upon themfelves the knowledge ot the 
 law, • but chufe to leave it to the determina- 
 tion of the judges, appears to be a proof that, 
 in other cafes, they do take upon themlelv^-s 
 the determination of it. 
 
 Now if it appears to be the cuftom and 
 
 the right of juries to determine the matter 
 
 bf law in other matters, what reafon can be 
 
 afiigned, why this right fhould be taken 
 
 from them in the cafe of libels only ? ** A- 
 
 ** mong other devices (lays another old au- 
 
 ** thor *) to undermine the rights and powet 
 
 " of juries, and render them infignificant, 
 
 ** there has been an opinion advanced, That 
 
 " they are only judges of fad, and not at 
 
 <* all to confidcr the law. Thus fomc 
 
 *• people argue ; but it is an apparent trap 
 " at once to perjure innocent juries, and 
 ** render them fo far from being of good 
 
 • Engliih Liberties, or Free-born Subjc^^'s, Inhcri- 
 
 UBC«^ p. 421, 
 
 . *' ufc.
 
 [ j6 ] 
 
 " ufe, as to be only tools of opprcflion, to 
 " ruin and murder their innocent neighbours 
 " with the greater formality." 
 
 It appears clearly from the defign of the in- 
 ftitution of juries, and from the declarations of 
 the greatell: lawyers, that the jurors are the 
 only proper judges of the matters which 
 they are appointed to try. " Whether — — 
 ** an a<5l was done in fuch or fuch a manner, 
 *' (fays Sir John Hawles *,) or to fuch or 
 *' fuch an intent^ the jurors are judges. For 
 ** the court is not judge of thefe matters, 
 *' which are evidence to prove or difprove 
 *' the thing in ilTue. And therefore the wit- 
 " nefles are always ordered to diredi their 
 ** fpeuch to the jury j they being the proper 
 *' judges of their teftimony. And in all 
 " pleas of the crown, the prifoner is faid to 
 '* put bimfelffor trial upon his country -y which 
 *' is explained and referred by the clerk of 
 " the court, to be meant of the jury, fay<^ 
 ** ing to them, which country you are'* It 
 
 • See a Dialogue between a Barrifter at Law and 
 a Jury-man. 
 
 being
 
 r 57 ] 
 
 being then manifeftly the right, and the du- 
 ty of jurymen, to judge entirely of the whole 
 matter before them, it is eafy to fee what is 
 the proper bufinefs of the judge. He is to 
 flate the law to the jury, and he may deli- 
 ver his opinion^ where the cafe is difficult ; 
 but they are under no kind of obligation to 
 be guided implicitly by that opinion. The 
 office of a judge, Coke obferves, is jus di- 
 ccrCj not jus dare; not to make any law by 
 {drains of wit, or forced interpretations j but 
 plainly and impartially to declare the law al- 
 ready eftabliffied. And the jury are to ap- 
 ply the general rules and maxims of law, or 
 any particular ftatute or ftarutcs, to the par- 
 ticular fadl which is the objed of their en- 
 quiry. This being the cate, the duty of a 
 judge, in the bufinefs of libels, as well as of 
 other matters, is very plain : He is to in- 
 form the jury what the law fays concerning 
 libels, and they arc to apply that law to the 
 particular fa^^ in queftion. This is the me- 
 thod in which the judges a<ft, when they a.0: 
 rightly, in other matters 3 and in this man- 
 ner they certainly ought to a(ft in the cafe of 
 libels. They arc not to didtatc to the iury 
 
 I what
 
 t 58 ] 
 
 what verdl<5t they are to bring in j but only 
 to inform their judgments, by inOrucling 
 them in fuch points of law as they, from 
 their iituation in life, may reafonably be fup- 
 pofed to be unacquainted with. A judge 
 ought not to fay to a jury : " This book, 
 ** pamphlet, or paper, is a libel j and if yoii 
 " are convinced that this man wrote, print- 
 '* ed, or publi(hed it, you muft find him 
 " guilty." But fliould firft declare to them, 
 what the law fays concerning libels; and 
 then leave them to apply it to the point in 
 queftion : to enquire whether the particular 
 a6lion with which the accufed perfon is charg- 
 ed, be a breach of the laws j and then to en- 
 quire whether he is guilty of that breach ? 
 And it is therefore clear, that, as the jurors 
 are the proper legal judges of the whole mat- 
 ter, they ought not to bring in any man 
 guilty, in any cafe, upon the mere i^e dixit 
 of a judge, nor unlefs the guilt of the perfon 
 they are appointed to try, be made evident 
 to them. If no evidence is produced fufRcient 
 to convince them, that the perfon has been 
 guilty oi^L criminal aftion, of an action which 
 is contrary to the laws j they ought, in fucli 
 
 cafe.
 
 [ 59 ] 
 
 cafe, to acquit him for want of fufricient 
 evidence J nor ought they ever to bring in a 
 man guilty of a crime, merely becaufe he is 
 proved to have committed the limple fadt 
 with which he is charged, unlefs they are 
 convinced, that the commiflion of that fadt 
 is a crime, a violation of the laws. *' If mere- 
 *' ly in compliance (fays Sir John Hawles) 
 *' becaufe the judge fays thus, or tbus^ a 
 "Jury fhall give a verdidt, though fuch a 
 " verdi(5t fhould happen to be right, true, 
 *' and jufl J yet they, being not affuied it is 
 "To, from their own underflanding, zrtfor- 
 *^ fworUi at leaft /// foro confcientia." Nor 
 ought any jury, in libels, or in other cafes, 
 to be influenced by either judges, or coun- 
 fel, who torture fentences in any book, or 
 paper, ftiled a libel, into a bad fenfe, when 
 they are capable of bearing a good one- 
 for it is a maxim in law, that Verba accipienda 
 funt in mitiori Jenfa. 
 
 If a jury are not convinced, that any 
 man is guilty of the whole that is exhibited 
 in an indictment againfl him ; at Icafl: 
 of all which does materially conftiiutc the 
 offence with which he is charged : il»ey 
 I 2 have
 
 [ 6o ] 
 
 have a right ^ nay, they are bound by 
 iheir oaths^ to acquit him. ** Are you not 
 *' (worn (lays Hawles) That you will well 
 *' a72d truly try^ and true deliverance make ? 
 *' There is none of this ftory of matter of 
 '■^JaB difhinguidied from law in your oath. 
 '♦ But your are ler//, that is, fully , truly, and 
 *' impartially to try the prifoner. So that if, 
 ** upon your confciences, and the be'ft of 
 *' your underjtanding^ by what is proved a- 
 " gainft him, you find he is guilty of that 
 *< crime wherewith he Hands charged ; that is, 
 ** deferving death, or fuch other punijhment as 
 ** the law inflicfts upon an offence fo deno- 
 *' minatedy then you are to fay, he is guilty^ 
 ** But if you are not fatisfied, that either 
 *• the acl he has committed was treafon, or 
 " other crime, (though it be never fo often 
 ** called Jo) or that the ad itfelf, if it were 
 ** fo criminal was not done ; then what re- 
 " mains, but that you are to acquit him ? 
 <* For the end of juries is to preferve men 
 ** from opprejjion, which may happen, as well 
 <* by impofmg or ruining them for that as a 
 « crimey which indeed is mne^ or at lead 
 «* not fuch, or fo great, as is pretended ; as 
 '« by charging them with the commiffion of 
 
 *« that,
 
 I 6i ] 
 
 *' that, which, in truth, was not committed. 
 " And how do you well and truly try\ end 
 ** true delhera?ice make^ when indeed you do 
 ** but deliver him up to others to be con- 
 *' demned, for that which you do not believe 
 *' to be any crime." 
 
 It has been faid, that the ufual epithet?, 
 which are in indidtments or informations for 
 libels, namely, that they zx^falU\ Jcandahus^ 
 and malicijus -y or /editions, and iviih a defirrn 
 to raije injurreclions againjl the government^ 
 6cc. are only words ot couif, and mere 
 matter of form, wnich is not to be attended 
 to : They have been compared by <^reat 
 perfonages in the law, to the ufual phrafc 
 in indidments for m^irder, deing mov d by the 
 injiigaticn of the devil, and otiiers of that 
 kind. But a very httlc coiifidera'"on w:ll 
 convince any impartial man that this is mere 
 fophiflry. Every man fees that that phrafe 
 jurt mentioned, and others of that fort, ars 
 mere words of courfe ; but the other epi- 
 thets, jalfe, fcandnlous^ malicious, fiditi uf^ 
 &c. uhich are u(cd in inlormations for li- 
 bels, are manifclfly ejjential words, which do 
 cither make^ or, at leaft, aggravate^ the crim.c 
 
 charged.
 
 [ 62 ]• 
 
 charged. If any man is charged, in any in- 
 formation or inditftment, with writing, print- 
 ing, or publifhing a fcandalous, falfe^ and 
 malicious^ or feditious libel, and no evidence is 
 Jaid beiore the jury of any thing but the 
 barely writing, printing, or publifhing fuch 
 a book, can a conlcientious and intelli- 
 gent jury bring in any man guilty upon 
 fuch evidence ? They certainly cannot ; for 
 no evidence of guilt is laid before them. 
 Writing, publifhing, or printing books, are 
 in themfelves innocent adtions ; it muft be 
 proved, therefore, that the books themfelves 
 contain fomething, in its own nature, crimi^ 
 naly or there can be no guilt ; and that the 
 jury ought to determine, or they determine 
 nothing. And it is indeed even a matter of 
 fa5i^ as well as a matter of law^ whether 
 any book or p^per befalfe^ fcandalousy mali^ 
 cious SindJeditiouSj or not. 
 
 The following are fome of the arguments 
 made ufe of by Lord Chief Juftice Jefferyi^ 
 in his charge to the jury, on the trial of 
 Sir Samuel Bernardifton, in the court of 
 King's Bench, for a midemeanour, in folfiy^ 
 fcandaloujly^ malidoujly^ d^ndfeditiGuJly writing 
 
 and
 
 [ 63 ] 
 
 and publlfliing certain letters, againft the 
 peace of the King, his ciown and dignity, 
 &c. Thefe letters were never printed 5 and 
 all t\\Q publication which was endeavoured to 
 be proved, was, that they were font to the 
 poji-qffice, " It hath been objeded, ((aid Jef- 
 *' feryt-) that inafmuch as the words f^jlflyy 
 **feditiouJly^ malicioiiJlyyfaBiouJly, and the like 
 " words, are in the information, they would 
 " have you believe, that there being no 
 " evidence of any fuch thing as j'aBion. 
 " malice^ and /edition^ or that the man did 
 *< it malicioufly, and advifedly, and fediti- 
 ^» Gufly, (which are the words in the premi- 
 ** fes, as I may call them, or the preamble 
 " of the information) therefore they mu(l 
 ** be acquitted of that part. Now as to 
 ** that, I told them then, and tell you now, 
 *' gentlemen, that no man living can difco- 
 ** ver the malicious evil defigns and inten- 
 *' tions of any other man, fo as to give cvi- 
 " dence of them, but by their words and 
 " acftions. No man can prove what I intend 
 *' but by my words and actions. Therefore 
 ** if one doth ccmpafs and imagine the 
 " death of the king, that, by our law, is 
 " High-trcafon j but whether or no be be 
 
 *' guihy
 
 [ H ] 
 
 •' guilty of this treafon, fo as to be con- 
 " vided of it by anoiher, is not proveable, 
 " or difcoverable, but by fome words or 
 " adtions, whereby the imagination may be 
 *' manifc'fted. And therefore my imagin- 
 *' ing, my comparing, which is private in 
 " my own mind, mull be lubmitted to the 
 "judgment that reafon and the law pafleth 
 *' upon my words or actions ; and then the 
 •' adion itfelf being proved, that difcovers 
 
 *' with what mind the thing was done. 
 
 *' Sappofe any man, without provocation, 
 *' kills another; the words of the indidt- 
 " ment are, That he did it malicioufly, fe- 
 " ionioufly, not having the fear of God be- 
 *' fore his eyes, but being moved and fe- 
 " duced by the inftigation of the devil. 
 *' Now all thefe things, whether he had the 
 " fear of God before his eyes, or not j or whe^ 
 *' ther he was moved by the inftigation of the 
 *' devil, and of his malice fore-thought, or noj 
 *' thefe cannot be known, till they come to 
 " be proved by the acftion that is done. So 
 ** in cafe any perfon doth write libels, or 
 ** publifh any expreffions which in them-^ 
 ** felves carry (edition, and faction, and ill- 
 " will towards the government j I can- 
 
 ** not
 
 [ 6,- ] 
 
 *' not tell well how to exprefs it otherwife 
 *' in his accufation, than by fuch words, that 
 " he did it feditioufly, fa(5tioufly, and mali- 
 " cioufly. And the proof of the thing it- 
 " felf, proves the evil mind it was done 
 " with. If, then, gentlemen, you believe 
 ** the defendant, Sir Samuel Bernardifton, 
 *' did w^ite and publifli thefe letters, that is 
 *' proof enough of the words malicioufly, fe- 
 *' ditioufly, and favllioufly, laid in the infor- 
 *' mation *." 
 
 Arguments Timilar to thefe, and almofl: 
 in the fame words, have been delivered la 
 later times from the fame bench. But every 
 man muft fee the fallacy of them. In the 
 cafe Jefferys mentions, of compafiing and 
 imagining the death of the king, there muft 
 be a proof of fome overt-adl, or words, or 
 writing, to evidence fuch a treafonable de- 
 fign. In the cafe of murder, the proof of 
 the ad: itfelf is a fufficient evidence of guilt; 
 becaufe to kill any man, unlets it be by 
 accident, or in felf-defcnce, is an illegal 
 
 • See the trial of Sir Samuel Bcrnardiflon, publi/hed 
 in 1684, by the authoiity of JcfFcrjs hiinfdf. 
 
 K and
 
 [ £6 ] 
 
 and wicked 26:. Bnt the cafe of libels is ef- 
 fentially diflferent. If, in a trial for a libel, 
 nothing is proved but what is called the fadt, 
 namely, the writing, printing, or publiQ;iing 
 of a book or paper, there is no gm'U of any 
 kind proved ; becaufe thefe things are, in 
 themfelve's, innocent and' indifferent adlions. 
 There muft, therefore, in any book or paper, 
 which is ftiled a malicious or feditious libel, 
 be fom'e evidence of mslice or feditioh laid 
 before the jury in fuch book or paper, other- 
 wife the JaS^ itfelf is not proved to them ; 
 for proving fimply, that a man has publifhed 
 a book or paper, and proving that he 
 has pubiidyed a feditious or malicious libeU 
 are two diftinct things. As writing, print- 
 ing, and publiOiing books or papers are, in 
 themf-lves, innocent and lawful actions > if 
 it be not proved, that fuch books or papers 
 are malicious ox feditious^ there is no evidence 
 of any guilt at all. Nor ought it to fatisfy 
 a jury, that the jadge tells them, that any 
 book or paper is zfeditiou; or ??ialicious libel ; 
 they ought to be convinced themfeives that 
 it is fo, or they csnnot honeilly and con- 
 fcientioufly pronounce any man guilty, 
 
 whom
 
 [ 6/ ] 
 
 whom they are appointed to try for fuch an 
 
 ofFencc. 
 
 We have one late inftance, snd that a 
 very noble one, of an Englifli jury's ailert- 
 ing this their right, to determine the matter of 
 laWy as well as the matter oi fa^. In 
 1752, Mr. William Owen, bookleller, was 
 tried, in the court of King's Beach, before 
 Lord Chief JuHice Lee, for publifhlng a 
 pamphlet, intituled, I'he Cafe of Alexander 
 Murray, Efq-, in an appeal to the people of 
 Great Britain. This piece had been voted 
 by the Houfe of Commons to be an impu^ 
 dent, malicious, fcandakiis and fditious li- 
 bed ; and the Houle had thereupon addreded 
 the King to profecute the author, printer, 
 and publiOier thereof; and the author hav- 
 ing left the kingdom, the proiecution fell 
 upon the bookfcller. Thtfa^ of the pub- 
 lication was, in the courfe of the trial, very 
 clearly proved ; and the judge, in fum- 
 ming up the evidence, gave it as his opi- 
 nion, that the jury ought to find the defen- 
 dant guilty ; for he thought the publication 
 was fully proved ; and if To, they could not 
 <2Wi/ bringing the defendant in guilty. But 
 K 2 the
 
 [ 68 ] 
 
 the jury, thinking they had a right to de- 
 termine the matter of law, as well as the 
 matter oi faB, and being determined to 
 alTert that right, did, notwithftanding the 
 opinion of the judge, and the vote of the 
 Houfc; of Commons, acquic the bookfeller, 
 by bringing him in, JSJot guilty, 
 
 Nothing can be more certain, than that 
 a cuftom of leaving the determination of 
 what books or pamphlets are or are not 
 libels entirely to the judge, muft have the 
 moil fatal tendency with refpedl to the li- 
 berty of the prefs. Should, in any future 
 period, the people of England be governed 
 by a corrupt, opprefhve, and infamous mi- 
 niftry ; which, however far it may be from 
 being the cafe at prefent, it is certainly a pof- 
 fible and a fuppofeable cafe ; and any honeft 
 Englifhman fhould have courage and pa- 
 triotilm enough to expofe the bad meafures 
 of fuch a miniftry, and to guard his coun- 
 trymen againft their deflgns j any perform- 
 ance of this tendency, though written with 
 the moft upright and patriotic intentions, 
 would, by fuch a miniftry, be mofl cer- 
 tainly deemed zfeditious libel 't and it is no
 
 [ 69 ] 
 
 great improbability to fuppofe, that they 
 might, in fuch a cafe, fhould a profecution 
 be commenced, get fomejuftice of the Court 
 of King's Bench, to pronounce that it was 
 fo. There have been formerly judge?, who 
 were at the beck of the court, and there 
 may be again. If then the jury are not to 
 judge of the law, as well as ol" the fadt, 
 but to follow implicitly the judges opinions ; 
 they would have nothing to do in fuch a cafe, 
 but to find the author of any fuch produc- 
 tion guilty. And thus a man would bekgal/y 
 punifhed for an aftion as a crime, for which 
 he would dcferve the efteem, and the thanks 
 of all his countrymen. 
 
 We have a remarkable inftance of this fort 
 in the reign of James the Second. James hav- 
 ing made large Ifrides towards the introdudioii 
 of popeiy and arbitrary power, and having 
 affernbled an army of fifteen thouland men 
 upon Hounflow-heath, in a time of pro- 
 found peace, Mr. Samuel Johnlbn, a cler- 
 gyman, published a paper, adJreficd to the 
 i^roteftant officers and foKliers of the army ; 
 in which he reprefcnted to them the bnfe- 
 pcfs and infamy, of fcrvin^ as inltrumcnrs 
 
 to
 
 [ 7° ] 
 
 to deftroy the religion and conflliutron of 
 their country. Whereupon, as this paper 
 was very difagreeable to the court, Mr. John- 
 ion was profecuted in the court of King's 
 Bench, for writing a /editions iibel, and his 
 jury thought proper to bring him in guilty ; 
 upon which he was fentenced to ftand three 
 times in the pillory, to be whipped from 
 Newgate to Tyburn, and to pay a fine of 
 five hundred marks; which fentence, after 
 he had been folemnly degraded, was accord- 
 ingly executed with great rigour. 
 
 It is obvious, that if the pofltion be ad- 
 mitted, that judges only are to determine 
 the matter of law in the cafe of libels ; 
 every man is liable to profecution, and to 
 punifhment, for writing, printing, or pub- 
 lifliing any book or paper whatever, which 
 any judge of the Court of King's Bench may 
 think proper to deem a libel, by whatever 
 motives he may beracftuated. No man could 
 write or publifli any thing of a political 
 kind without manifeft danger, however up- 
 right his intentions might be in fo doing. 
 Mmifters of ftate will ever deem all writings, 
 which oppofe their meafures, libellous and 
 tj, f editions \
 
 [ 7' ■] 
 
 fediiious', and the more truth there is in an^ 
 publications cf that fort, the more coni- 
 monly will they be irritated by thcni. U" 
 then the power of pronouncing what are li- 
 bels, and what are not, rells folelv in the 
 breafls of the judges, can it be a diiikuk 
 matter for a minifter to punidi any man, who 
 writes with any degree ol freedom upon the 
 public meafures? Oris it impolTible to fuppofe, 
 that a bad minifler may find fome jud^e of 
 the Court of King's Bench, who may be in^ 
 fiuenced by the court ? We have had a J-f- 
 ferys prefide in that court, and we may have 
 again. And is there any Englifhman, wlio 
 thinks the liberty cf the pr^ls of the higheft 
 nation^il importance, who can think calmly 
 of fuih a power being ludgcd in Jlich 
 bauds ? 
 
 In Hiort, the mod: innocent book or p«i- 
 per whatever, may be deemed a libel, ijax- 
 lei's Piiaraphrafe on the New Teftament was 
 dee iKd, in the Court ot King's Bench, a 
 Jeditious libel \ and the author was punifbed 
 as zfeditiouslibelUr. No impartial mat), who 
 ever read the Cri/is of Sir F.ichard Steele, .cm 
 ever thiiik it confident with anyjuft prctcn* 
 
 fions
 
 [ 72 ] 
 
 fions to the fieedom of the prefs, that fuch 
 a performance fhould be deemed punifhable j 
 
 and yet the Crijls was voted a libel, and the 
 author expelled the Houfe of Commons for 
 writing it. How ridiculous is it to pretend, 
 that the people of England have the liberty 
 of the prets, if it be admitted, that the 
 judges can pronounce any book a libel that 
 they think proper? Muft not every intelli- 
 gent foreigner laugh at fuch a pretenfion ? 
 It is true, authors and bookiellers may, not- 
 withftanding, write and publifh what they 
 pleafe ; but if this principle be admitted, 
 they mufl: always do it at their peril. 
 
 If then this be the certain confequence 
 of admitting this propofition, That juries 
 are only judges of matters olfaci and not 
 of the matcer oi law^ as it moft evidently 
 appears to be, muft not every friend to li- 
 berty be alarmed at fo dangerous a pofition ? 
 and more efpecially when it is advanced 
 from our benches of juftice, and by thofc 
 whofe eloquence and abilities render them 
 the more capable of maintaining a falfe 
 hypothecs : But as it appears manifeftly to 
 be inconfiilent with the original defjgn and 
 
 in
 
 [ 73 ] 
 
 inftltution of juries, to fuppofe that they 
 have not a right to judge of La^iv^ as w^ll 
 as FaB -, as il appears to have bee:i the opi- 
 nion of fome of the beft and ableft lawyers, 
 that they have that right ; as it is notorious, 
 that, in many cafes, luch as in trials for mur- 
 der, ^c, juries do conftantly determine the 
 law as well as the fadt ; as it is certain, 
 that they have actually exerted this right in 
 the cafe of libel?, and oiher (imilar cales, 
 when they have had fpirit and honefty enough 
 to do their duty -, and as the leaving the 
 determination of the matter of law, to the 
 judges only, is manifeflly attended with 
 confequences fo fatal to the liberty of the 
 prefs ; furely a right of fuch importance 
 ought not to be given up upon the mere 
 di^um of any lawyer, how great, how emi- 
 nent, how powerful foever. 
 
 It is eafy to conceive why fome judges 
 may have been willing to advance this pofi- 
 tion, becaufs it tends to encreafe ilieir 
 power ; and may enable them the better, on 
 many occafions to carry a favourite point. 
 But the bare afTertion of any judi;e, any 
 more than of an inferior lawyer, docs not 
 
 L makt:
 
 [ 7+ ] 
 
 make laiv. Anvl certainly the mere opinions 
 and allertions of many lawyers, if many 
 could be produced, ought not to balance 
 again ft the confequences, which feem natu- 
 rally to relult from ad milting the dodrine 
 which has here been controverted 5 efpecial- 
 ly if thofe opinions do not appear to be 
 really founded in law i but to be contrary, 
 to the fpirit of it, and to tliofe principles of 
 right reafon, upon which all law is, or ought 
 to be, founded. 
 
 Juries have the more reafon to be upon 
 their guard in cafes of this nature, againft 
 any incroachments on their rights, fince the 
 cuftom of profecutions, in the Court of 
 King's Bench, by informations only, in cri- 
 minal cafe?, has unhappily arifen to fuch 3 
 height ; by which means the fubje(5t is 
 drawn into hazard of liberty and eflate, with- 
 out prefentment or indidment of a Grand- 
 jury; and is thereby deprived of that great 
 and good outguard of his liberty and property, 
 the inqueft by oath of twelve men, before 
 he (hould be brought to trial. 
 
 If the principles which have been ad- 
 vanced in this little piece are jufl -, and if the 
 
 confe-
 
 [ 75 ] 
 
 confequences which have been pointed out, 
 do, in reality, naturally refult from the doc- 
 trine which hath been here oppofed ; every 
 uncorrupted Englifliman, every friend to 
 freedom, of whatever party, muft be alarmed 
 at the propagation of it ; and be heartily and 
 warmly difpofed to oppofe whatever hath a 
 tendency fo fatal to the public liberty. 
 
 FINIS.
 
 V.
 
 9997 
 
 1773 f 7-'S 
 
 THE LIBRARY 
 UNIVERSITY OF CALIFORNIA 
 
 Santa Barbara 
 
 THIS BOOK IS DUE ON THE LAST DATE 
 STAMPED BELOW. 
 
 i iax^EStf Oipt 
 
 Series 9482
 
 3 1205 00048 2479 
 
 UC SOUTHERN REGIONAL LIBf^RY F'^C'LI'^,, 
 
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