against him. It is only when the pride of En- | should be; but it is nothing more. The arrest glishmen is insulted by such doctrines as I am opposing to-day, that they may be betrayed into a verdict delivering the guilty, rather than surrender the rights by which alone innocence in the day of danger can be protected.

ition.

This proposition no one has attempted di

of judgment which follows after a verdict of
guilty for publishing a writing, which, on inspec-
tion of the record, exhibits to the court no spe-
cific offense against the law, is no impeachment of
my doctrine. I never denied such a jurisdiction
to the court. My position is, that no man shall
be punished for the criminal breach of any law,
until a jury of his equals have pronounced him
guilty in mind as well as in act.
Actus non fa-
cit reum nisi mens sit rea.26

But I never asserted that a jury had the pow

ter it; and, therefore, it is clear that they can not deliver over a man to punishment, if it appears by the record of his accusation-which it is the office of judicature to examine that he has not offended against any positive law; because, however criminal he may have been in his disposition, which is a fact established by the verdict, yet statute and precedents can alone decide what is by law an indictable offense.

IV. I venture, therefore, to say, in support of Fourth Prop. one of my original Propositions, That where a writing indicted as a libel neither contains, nor is averred by the indictment to contain, any slander of an individual, so as to fall within those rules of law which protect personal reputation, but whose criminality is charger to make criminal law, as well as to adminised to consist, as in the present instance, in its tendency to stir up general discontent-the trial of such an indictment neither involves, nor can in its obvious nature involve, any abstract question of law for the judgment of a court, but must wholly depend upon the judgment of the jury on the tendency of the writing itself to produce such consequences, when connected with all the circumstances which attended its publication. It is unnecessary to push this part of the argument further, because I have heard nothing from the bar against the porectly to refute. sition which it maintains. None of the gentlemen have, to my recollection, given the court any one single reason, good or bad, why the tendency of a paper to stir up discontent against government, separated from all the circumstances which are ever shut out from the record, ought to be considered as an abstract question of law. They have not told us where we are to find any matter in the books to enable us to argue such questions before the court, or where your Lordships yourselves are to find a rule for your judgments on such subjects. I confess that to me it looks more like legislation or arbitrary power than English judicature. If the court can say this is a criminal writing-not because we know that mischief was intended by its author, or is even contained in itself, but because fools, believing the one and the other, may do mischief in their folly-the suppression of such writings, under particular circumstances, may be wise policy in a state; but upon what principle it can be criminal law in England, to be settled in the abstract by judges, I confess with humility that I have no organs to understand.

Answer to an

Mr. Leycester [counsel for the Crown] felt the difficulty of maintaining such a propindirect attempt osition by any argument of law, and at refutation. therefore had recourse to an argument of fact. "If," says my learned friend, "what is or is not a seditious libel, be not a question of law for the court, but of fact for the jury, upon what principle do defendants, found guilty of such libels by a general verdict, defeat the judgment for error on the record; and what is still more in point, upon what principle does Mr. Erskine himself, if he fails in his present motion, mean to ask your Lordships to arrest this very judgment by saying that the Dialogue is not a libel ?"

My Lord, the observation is very ingenious, and God knows the argument requires that it

If, for instance, a man were charged by an indictment with having held a discourse in words highly seditious, and were found guilty by the jury, it is evident that it is the province of the court to arrest that judgment. Why? Because, though the jury have found that he spoke the words as laid in the indictment, with the seditious intention charged upon him, which they, and they only, could find; yet, as the words are not punishable by indictment, as when committed to writing, the court could not pronounce judgThe declaration of the jury, that the defendant was guilty in manner and form as accused, could evidently never warrant a judgment, if the accusation itself contained no charge of an offense against the law.

ment.

In the same manner, if a butcher were indicted for privately putting a sheep to causeless and unnecessary torture in the exercise of his trade, but not in public view, so as to be productive of evil example, and the jury should find him guilty, I am afraid no judgment could follow; because, though done malo animo, yet neither statute nor precedent have, perhaps, determined it to be an indictable offense; it would be difficult to draw the line. An indictment would not lie for every inhuman neglect of the sufferings of the smallest innocent animals which Providence has subjected to us:

"Yet the poor beetle which we tread upon, In corporeal suffering feels a pang as great As when a giant dies."

A thousand other instances might be brought of acts base and immoral, and prejudicial in their consequences, which are yet not indictable by law.

In the case of the King against Brewer, in Cowper's Reports, it was held that knowingly exposing to sale and selling gold under sterling for standard gold is not indictable; because the act refers to goldsmiths only, and private cheat

26 It is not the act which makes a man guilty, but the intention.

is that the doctrine is too absurd to be acted upon-too distorted in principle to admit of consistency in practice. It is contraband in law, and can only be smuggled by those who introduce it. It requires great talents and great address to hide its deformity; in vulgar hands it becomes contemptible.

31

he was just going to direct them to find the bishops not guilty, when in came my Lord Presi dent (such sort of witnesses were, no doubt, always at hand when wanted), who proved the delivery to his Majesty. Therefore," continued the Chief Justice, “if you believe it was the same petition, it is a publication sufficient, and we must, therefore, come to inquire whether it be a libel." He then gave his reasons for thinking it within the case de libellis famosis [defamatory libels], and concluded by saying to the jury, “In short, I must give you my opinion: I do take it to be a libel; if my brothers have any thing to say to it, I suppose they will deliver their opinion." What opinion? not that the jury had no jurisdiction to judge of the matter, but an opinion for the express purpose of enabling them to give that judgment which the law required at their hands.

Having supported the rights of juries, by the Practice of uniform practice of Crown lawyers, let the courts. us now examine the question of authority, and see how this court itself, and its judges, have acted upon trials for libels in former times; for, according to Lord Raymond, in Franklin's case, as cited by Mr. Justice Buller, at Shrewsbury, the principle I am supporting had, it seems, been only broached about the year 1731, by some men of party spirit, and then, too, for the very first time. My Lord, such an observation in the mouth of Lord Raymond proves how dangerous it is to take up as doctrine every thing Mr. Justice Holloway then followed the Chief flung out at Nisi Prius; above all, upon subjects | Justice; and so pointedly was the question of which engage the passions and interests of gov-libel or no libel, and not the publication, the only ernment. The most solemn and important trials matter which remained in doubt, and which the with which history makes us acquainted, dis- | cussed, too, at the bar of this court, when filled with judges the most devoted to the Crown, afford the most decisive contradiction to such an unfounded and unguarded assertion.

In the famous case of the seven bishops, the Case of the question of libel or no libel was held seven bishops, unanimously by the Court of King's Bench trying the cause at the bar, to be matter for the consideration and determination of the jury; and the bishops' petition to the King, which was the subject of the information, was accordingly delivered to them, when they withdrew to consider of their verdict.

jury, with the assistance of the court, were to decide upon, that when the learned judge went into the facts which had been in evidence, the Chief Justice said to him, "Look you; by-theway, brother, I did not ask you to sum up the evidence, but only to deliver your opinion to the jury, whether it be a libel or no." The Chief Justice's remark, though it proves my position, was, however, very unnecessary; for, but a moment before, Mr. Justice Holloway had declared he did not think it was a libel, but, addressing himself to the jury, had said, "It is left to you, gentlemen."

Mr. Justice Powell, who likewise gave his opin Thinking this case decisive, I cited it at the ion that it was no libel, said to the jury, "But the trial, and the answer it received from Mr. Bear-matter of it is before you, and I leave the issue of it croft was, that it had no relation to the point in dispute between us, for that the bishops were acquitted, not upon the question of libel, but because the delivery of the petition to the King was held to be no publication.

to God and your own consciences." And so little was it in the idea of any one of the court that the jury ought to found their verdict solely upon the evidence of the publication, without attending to the criminality or innocence of the petition, that I was not a little surprised at this statement, the Chief Justice himself consented, on their withbut my turn of speaking was then past. Fortu- drawing from the bar, that they should carry with nately, to-day it is my privilege to speak last, them all the materials for coming to a judgment and I have now lying before me the fifth volume as comprehensive as the charge; and, indeed, exof the State Trials, where the case of the bish-pressly directed that the information, the libel, the ops is printed, and where it appears that the declarations under the great seal, and even the publication was expressly proved-that nothing statute book, should be delivered to them. turned upon it in the judgment of the court, and that the charge turned wholly upon the question of libel, which was expressly left to the jury by every one of the judges. Lord Chief Justice Wright, in summing up the evidence, told them that a question had at first arisen about the publication, it being insisted on that the delivery of the petition to the King had not been proved; that the court was of the same opinion; and that

The happy issue of this memorable trial, in the acquittal of the bishops by the jury, exercising jurisdiction over the whole charge, freely granted to them as legal, even by King James's judges, is admitted by two of the gentlemen [for the Crown] to have prepared and forwarded the glorious era of the Revolution. Mr. Bower, in particular, spoke with singular enthusiasm concerning this verdict, choosing-for reasons sutliciently obvious to ascribe it to a special miracle wrought for the safety of the nation, rather than to the right lodged in the jury to save it by its laws and Constitution!

My learned friend, finding his argument like nothing upon the earth, was obliged to ascend

Mr. Bower on

bishops.

to heaven to support it. Having admitted that | the jury not only acted like just men the case of the toward the bishops, but as patriot citizens toward their country, and not being able, without the surrender of his whole argument, to allow either their public spirit or their private justice to have been consonant to the laws, he is driven to make them the instruments of divine Providence to bring good out of evil; and holds them up as men inspired by God to perjure themselves in the administration of justice, in order, by-the-by, to defeat the effects of that wretched system of judicature, which he is defending to-day as the Constitution of England! For if the King's judges could have decided the petition to be a libel, the Stuarts might yet have been on the throne.

My Lord, this is an argument of a priest, not of a lawyer; and even if faith, and not law, were to govern the question, I should be as far from subscribing to it as a religious opinion. No man believes more firmly than I do, that God governs the whole universe by the gracious dispensations of his providence, and that all the nations of the earth rise and fall at his command; but, then, this wonderful system is carried on by the natural, though, to us, the often hidden, relation between effects and causes, which wisdom adjusted from the beginning, and which foreknowledge at the same time rendered sufficient, without disturbing either the laws of nature or of civil society.

Chief Justice Holt in the case of Tutch

For it is very necessary for all governments that the people should have a good opinion of it; and nothing can be worse to any government than to endeavor to procure animosities as to the management of it; this has always been looked upon as a crime, and no government can be safe without it be punished."

Having made these observations, did the Chief Justice tell the jury that whether the publication in question fell within that principle, so as to be a libel on government was a matter of law for the court, with which they had no concern? Quite the contrary: he considered the seditious tendency of the paper as a question for their sole determination, saying to them,

Now you are to consider whether these words I have read to you do not tend to beget an ill opinion of the administration of government; to tell us that those that are employed know nothing of the matter, and those that do know are not employed. Men are not adapted to offices, but offices to men, out of a particular regard to their interest, and not to their fitness for the places. This is the purport of these papers."

In citing the words of judges in judicature, I have a right to suppose their discourse Comparison to be pertinent and relevant, and that, of authorities. when they state the defendant's answer to the charge, and make remarks on it, they mean that the jury should exercise a judgment under their direction. This is the practice we must certainly impute to Lord Holt, if we do him the justice to suppose that he meant to convey the sentiments which he expressed. So that, when we come to sum up this case, I do not find myself so far behind the learned gentleman, even in point of express authority; putting all reason, and the analogies of law which unite to support me, wholly out of the question. There is Court of King's Bench against Court of King's Bench; Chief Justice Wright against Chief Justice Lee; and Lord Holt against Lord Raymond. As to living authorities, it would be invidious to class them; but it is a point on which I am satisfied myself, and on which the world will be satisfied likewise, if ever it comes to be a question.33

But even if I should be mistaken in that particular, I can not consent implicitly to receive any doctrine as the law of England, though pro

The prosperity and greatness of empires ever depended, and ever must depend, upon the use their inhabitants make of their reason in devising wise laws, and the spirit and virtue with which they watch over their just execution; and it is impious to suppose that men who have made no provision for their own happiness or security in their attention to their government, are to be saved by the interposition of Heaven in turning the hearts of their tyrants to protect them. But if every case in which judges have left the question of libel to juries in opposition to law, is to be considered as a miracle, England may vie with Palestine; and Lord Chief Justice Holt steps next into view as an apostle; for that great judge, in Tutchin's case, left the question of libel to the jury, in the most unambiguous terms. After summing up the evidence of writing and pub-nounced to be such by magistrates the most relishing, he said to them as follows: "You have spectable, if I find it to be in direct violation of now heard the evidence, and you are to consider the very first principles of English judicature. whether Mr. Tutchin be guilty. They say they The great jurisdictions of the country are unalare innocent papers, and no libels; and they say terable except by Parliament, and, until they are nothing is a libel but what reflects upon some changed by that authority, they ought to remain particular person. But this is a very strange sacred: the judges have no power over them. doctrine to say it is not a libel reflecting on What parliamentary abridgment has been made the government, endeavoring to possess the peo- upon the rights of juries since the trial of the ple, that the government is maladministered by bishops, or since Tutchin's case, when they were corrupt persons, that are employed in such or fully recognized by this court? None. Lord such stations, either in the navy or army. To Raymond and Lord Chief Justice Lee ought, say that corrupt officers are appointed to admin- therefore, to have looked there-to their predeister affairs, is certainly a reflection on the gov-cessors-for the law, instead of setting up a new ernment. If people should not be called to acone for their successors. count for possessing the people with an ill opinion of the government, no government can subsist.

33 Lord Camden is the one here opposed to Mansfield.

the propo

sition.

stands good, till answered by the defendant it must stand till contradicted or explained; and if not contradicted, explained, or exculpated, becomes tantamount to conclusive, when the defendant calls no witnesses."

Mr. Justice Aston said, "Prima facie evidence not answered, is sufficient to ground a verdict upon if the defendant had a sufficient excuse, he might have proved it at the trial: his having neglected it where there was no surprise, is no ground for a new one." Mr. Justice Willes and Mr. Justice Ashurst agreed upon those express principles.

These cases declare the law, beyond all controversy, to be, that publication, even of a libel, is no conclusive proof of guilt, but only prima facie evidence of it till answered; and that, if the defendant can show that his intention was not criminal, he completely rebuts the inference arising from the publication; because, though it remains true that he published, yet, according to your Lordship's express words, it is not such a publication of which a defendant ought to be found guilty. Apply Mr. Justice Buller's summing up to this law, and it does not require even a legal apprehension to distinguish the repugnancy.

The advertisement was proved to convince the jury of the Dean's motive for publishing; Mr. Jones's testimony went strongly to aid it ;* and the evidence to character, though not sufficient in itself, was admissible to be thrown into the scale. But not only no part of this was left to the jury, but the whole of it was expressly removed from their consideration, although, in the cases of Woodfall and Almon, it was as express

I said the authorities of the King against Authorities Woodfall and Almon were with me. In in favor of the first, which is reported in fifth Burrow, your Lordship expressed yourself thus: "Where an act, in itself indifferent, becomes criminal when done with a particular intent, there the intent must be proved and found. But where the act itself is unlawful, as in the case of a libel, the PROOF of justification or excuse lies on the defendant; and in failure thereof, the law implies a criminal intent." Most luminously expressed to convey this sentiment, namely, that when a man publishes a libel, and has nothing to say for himself no explanation or exculpation-a criminal intention need not be proved. I freely admit that it need not; it is an inference of common sense, not of law. But the publication of a libel does not exclusively show criminal intent, but is only an implication of law, in failure of the desendant's proof. Your Lordship immediately aft-ly laid down to be within their cognizance, and a erward, in the same case, explained this further. "There may be cases where the publication may be justified or excused as lawful or innocent; For In support of the learned judge's charge, NO FACT WHICH IS NOT CRIMINAL, though the pa- there can be, therefore, but the two only two argu per BE A LIBEL, can amount to SUCH a publica-arguments, which I stated on moving of Justice Bud tion of which a defendant ought to be found guilty." But no question of that kind arose at the trial, that is, at the trial of Woodfall. Why? Your Lordship immediately explained why—“Be- | cause the defendant called no witnesses;" expressly saying, that the publication of a libel is not in itself a crime, unless the intent be criminal; and that it is not merely in mitigation of punishment, but that such a publication does not warrant a verdict of guilty.

complete answer to the charge, if satisfactory, to the minds of the jurors.

ments in favor

for the rule. Either that the defend- ler's charge. ant's evidence, namely, the advertisement—Mr. Jones's evidence in confirmation of its being boná fide—and the evidence to character, to strengthen that construction-were not sufficient proof that the Dean believed the publication meritori ous, and published it in vindication of his honest intentions; or else that, even admitting it to es tablish that fact, it did not amount to such an exculpation as to be evidence on Not Guilty, so as to warrant a verdict. I still give the learned judge the choice of the alternative.

In the case of the King against Almon, a magazine, containing one of Junius's letters, was sold at Almon's shop: there was proof of that As to the first, namely, whether it showed sale at the trial. Mr. Almon called no witness- honest intention in point of fact, that Remarks or es, and was found guilty. To found a motion was a question for the jury. If the the first. for a new trial, an affidavit was offered from Mr. learned judge had thought it was not sufficient Almon that he was not privy to the sale, nor evidence to warrant the jury's believing that the knew his name was inserted as a publisher; and Dean's motives were such as he had declared that this practice of booksellers being inserted as them, I conceive he should have given his opinpublishers by their correspondents, without no-ion of it as a point of evidence, and left it there. tice, was common in the trade.

I can not condescend to go further; it would be
ridiculous to argue a self-evident proposition.
As to the second, namely, that even if the

34 For Mr. Jones's testimony, see note 18.