public orator to factious, popular meetings. The moral of the whole may be very good. But be the refpective impartiality of judge and jury what it will, and it may fometimes be a queftion on which fide it lies, the conftitution has placed the trial of all criminal matters, in the hands of the latter moft indifputably, and they are upon oath to find, whether the act complained of was done, and whether wilfully or not. There is fcarcely any matter of challenge allowed to the judge, but feveral to the jurors, and many of them may be removed without any reafon alledged. This feems to promife as much impartiality as human nature will admit; and abfolute perfection is not attainable, I am afraid, either in judge or jury, or any thing elfe. The trial by our country is in my own opinion the great bulwark of freedom, and, for certain, the admiration of all foreign writers and nations. The laft writer of any diftinguished note upon the principles of government, the celebrated Montefquieu, is in raptures with this peculiar perfection in the English policy. From juries running riot, if I may fay fo, and acting wildly at particular feafons, I cannot conclude, like fome Scottish doctors of our law and conftitution, that their power fhould be leffened. This would, to ufe the words of the wife, learned, and intrepid lord chief juftice Vaughan, be "a ftrange, new-fangled conclufion, after a trial fo celebrated for many hundreds of years." Whether London juries will, or will not judge impartially in factious times, I cannot tell; but this I am sure of, that they are as capable of judging, whether any paper brought before them be publifhed with a libellous intent, as my lord chief juftice Mansfield, and his affeffors (able and learned as they are) there being no legal matter whatever in the confideration.'

A jury was not admitted in the Star-chamber; there all ftate-libels were formerly tried; and of course the judges of the court wholly determined what was, or was not a libel. Hence our author infers, that the venerable bench has ever fince claimed the exclufive right of deciding this point, without confidering that by the principles of the juridical part of our conftitutions where a jury is fummoned, the judgment of all facts must be left to them, and that this holds through the region of crimes. He infifts, that the intention of a fuppofed libeller is as much within their cognizance as the intention of any other supposed criminal; which, no judge, he thinks, can difpute their right to examine, and pronounce upon, nor legally invalidate their verdict.

Though we have remarked of this letter, that it is spun out to an unneceffary and tedious prolixity, we must here, in juftice to the writer of it, obferve, that in fome places it is not only fenfible and acute, but eloquent and animated. The following extract will be agreeable to every one who is a friend to our civil rights; and it will not be unworthy the attention of a judge.

There is after all, in my own opinion, nothing like travelling the old beaten road of the conftitution, without ftarting new fchemes from a defire of fhewing fuperior parts, or for the fake of

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talents, or fuch as have read the ancients with indefatigable industry. Parnell is ever happy in the selection of his images, and scrupulously careful in the choice of his subjects. His productions bear no refemblance to thofe tawdry things, which it has for fome time been the fashion to admire; in writing which the poet fits down without any plan, and heaps up fplendid images without any selection; where the reader grows dizzy with praise and admiration, and yet foon grows weary, he can scarce tell why. Our poet, on the contrary, gives out his beauties with a more fparing hand; he is ftill carrying his reader forward, and juft gives him refreshment fufficient to fupport him to his journey's end. At the end of his course the reader regrets that his way has been fo fhort, he wonders that it gave him fo little trouble, and fo refolves to go the journey over again.

• His poetical language is not less corre& than his subjects are pleafing. He found it at that period, in which it was brought to its highest pitch of refinement; and ever fince hist time it has been gradually debafing. It is indeed amazing, after what has been done by Dryden, Addifon, and Pope, to improve and harmonize our native tongue, that their fucceffors fhould have taken fo much pains to involve it in pristine barbarity. These misguided innovators have not been content with reftoring antiquated words and phrases, but have indulged themselves in the most licentious tranfpofitions, and the harfheft conftructions, vainly imagining, that the more their writings are unlike profe, the more they refemble poetry. They have adopted a language of their own, and call upon mankind for admiration. All thofe who do not understand them are filent, and those who make out their meaning, are willing to praife, to fhew they understand. From these follies and affectations, the poems of Parnell are entirely free; he has confidered the language of poetry as the language of life, and conveys the warmeft thoughts in the fimpleft expreffion.'

The chara&er of Parnell as a poet is here greatly exaggerated. He is not univerfally read, nor with reiterated pleafure. It is the greatest injuftice to his celebrated cotemporaries to affert, that his fame is equal to theirs. Dr. Goldsmith fays, he is only to be confidered as a poet. Then as a poet, he is infinitely inferior to Pope, he is inferior to Swift, to Addifon, and to Gay. It is painful to prove evidence. We are furprised to find a man of genius so infatuated in his admiration of the ancients, as to tell us, that the mere indefatigable ftudy of them will enable one to write well. The study of the ancients is certainly not without its confiderable advantages;

but

cate. I remember many years ago, a fupreme law-magiftrate, who, both in the King's Bench and the Chancery, manifefted the utmost deference to former determinations, a folicitude to find out the true grounds and principles on which they proceeded, and a defire of hearing all that could be faid by the counfel of either fide. He would then deliver fo legal, fo found, fo comprehenfive, fo justly principled a judgment on the points before him, as fatisfied all mankind of the impartiality, of the truth, of the circumspectnefs, and of the profeffional and juridical correctness of his decrees. In short, he heard fully, and determined completely. He was neither at conftant war with juries, nor with the law and forms of our forefathers. He performed his part without oftentatious fmartness, fupercilioufnefs, the artifice of logical ratiocination, or the parade of civil law, learning, and the authority of imperial codes. His conduct on the bench won the refpect of every body; parties, counfel and bar, for twenty-three or four years fucceffively. And time itself and future difcuffion, have not impaired or fhaken his fentences. Nevertheless he is not fuppofed to have been freer from felfith and political views than other lawyers, that is to fay, other men. But he had too much cool found fenfe, with the magisterial gown upon his back, in deliberating upon legal matter, to look at aught but the precedents of former times, the arguments in the caufe, and the genuine principles of law. He knew that neither the weight of his office, nor any prefent artificial refinement, could preferve his opinions and demeanor from being fcrutinized by a difcerning bar, and (thould they detect any failacy and obliquity, as were there any they certainly would) from being abufed by the public. Such a filent fagacious auditory will fee through the greatest fophift that ever spoke; and, after fcanning his fophifms among themfelves, by degrees drop their fhrewd redargutions among the world. With acute practifers, every ftudied preface of impartiality, of prodigious firmnefs, of a difregard of danger even to the lofs of life, and of an extreme anxioufnefs in any crown profecution to find out the fmalleft iota of juftification for the defendant, will only raise an extraordinary attention to every colour of good or evil, to every fhade or light, made ufe of by fuch judge, and to the whole of his gefture; for their jealoufy will be fet on the watch by the undueness and unufualness of an elaborate exordium from the chafte bench of fober judicature. What should make fo artificial a beginning necessary? Judges who mean nothing unfair need never recur to thefe meretricious arts. Why then fhould you

ufe them? Do you imagine the world fufpects you of fome defign of not doing your duty? If not, it must be your confcicufnefs of intending fome duplicity that makes you thus call in beforehand fuch guards to your reputation. Genuine fimplicity and pure vir. tue are ever devoid of fictitious ornaments. Every extraordinary declaration, file fpeech, hint, tone of voice, look or gefticulation, will furnish matter of animadverfion, and the ufer finally dupes him-self and becomes the facrifice of his own artifice; whatever feeming conviction and rhetorical applaufe his argument or oration may carry with them at the time. Truth ftands the edge of profeffional and popular difcuffion, but fophiftry of neither; for it cannot alter the nature of things, although it will difguife their appearance for a while. Time will always fooner or later detect the adultery. Opinionum commenta delet dies, naturæ judicia confirmat.'

VOL. XXXI. January, 1771.

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To this letter is added, a Poftfcript on commitments and attachments for a contempt of court. The cafe of Bingley led the author into reflections upon this fubject. He afferts, and proves by several inftances which he has produced, that a perfon cannot be legally committed for a constructive contempt of a court; but only for that actual and immediate contempt by which its proceedings are refifted and interrupted. When a man does not in fact difturb the process of a court, this writer denies the legality of its power to attach him. No judge, (as he argues) has a right to shut his mouth, or to prevent his pen from cenfuring what he thinks erroneous in the diftribution of public juftice. Commitment for this constructive and imputed contempt, he thinks a dominion fo extraordinary, fo incongruous with the conftitution of this country, and fo privatory of the fubjects' right to a trial by jury for every mifdemeanour, that it clashes with the whole system of our law.

We pretend not to be fo well versed as this gentleman, in the laws of England. But we beg leave to make a remark or two on the subject before us, with proper deference to those who are qualified to discuss it.

It appears that a jury is, in the language of our author, the great bulwark of our civil liberty; and that we cannot, therefore, be too watchful, and jealous of any attack upon its privileges and power: we prefume, that it fhould be leaft influenced by the bench in cafes of libel, in which the crown is commonly concerned; and in which, therefore, a judge, as he is but a man, is moft liable to deviate from integrity. Why a particle of a jury's weight fhould ever devolve upon a judge, it is not easy to comprehend for in the moft turbulent and factious times, as much impartiality and equity may certainly be expected from the former as from the latter. Englishman's ineftimable right to be tried by his peers, feems not only to have sprung from the principles of freedom, but likewife of found reafon. For a jury feems as well qualified to judge of motives and facts, and to apply them to the law when it is explained to them, as a judge is to explain the law to a jury. And, unless we are mifinformed by writers, who appear to be candid and accurate, the verdict of an English jury is decifive in every caufe, unlefs a flaw can be found in the indictment.

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VII. A Second Poftfcript to a late Pamphlet, entitled, a Letter to Mr. Almon, in Matter of Libel. 8vo. Is. Miller.

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HE author of the Letter to Mr. Almon, in Matter of Libel, on reading the judgment of the Court of King's-Bench, in the cafe of the King against Woodfall, thought it inconfiftent

with law, and the freedom of our conftitution. In confequence of that opinion, he wrote this fecond Poftfcript, to fhow the impropriety of the judgment. Many particulars of this judgment in Woodfall's cafe he is induftrious to refute; but he chiefly aims to invalidate that part of it, which infifts, that the information, not the jury, determines any publication to be a libel; that it is not their bufinefs to enquire, whether it is published with a malicious and feditious intention; and that when they found Woodfal the printer and publisher of Junius's Letters, he should, by their verdict, have been pronounced guilty.

To this doctrine he oppofes many pertinent precedents, and ftrong arguments, and he displays its confequences in the following terms.

I may be mistaken, but it feems to me, by this way of expounding the conftitution of this country, as if its life blood was letting out. For, I am one of those who hold with Dr. Middleton, that "the prefs, in all countries, where it can have its free courfe, will ever be found the fureft guardian of right and truth; and that he must be allowed to act like a generous adversary, who refers the merit of his argument to that trial." Nor is what old Donne the divine fays unworthy attention. "There may be many cafes, where a man may do his country good, and fervice by libelling; for, where a man is either too great, or his vices too general to be brought under a judiciary accufation, there is no way but the extraordinary method of accufation, Sealed letters, in the Star-chamber have, now-a-days, been judged libels." In truth, the freedom of this country from hierarchical and monarchical tyranny, is greatly owing to a free prefs. The little liberty which France is now getting into, both in civil and religious concerns, may be wholly attributed to the fame caufe. It is the bulwark of the franchises of the people, who would never know what was doing, nor fee the confequences, were it not for the prefs. The liberty of it in England, however, feems to me to be now in the utmoft danger; and I will tell you how. By this late adjudication (according to the printed relation) juries, in matter of libel, are not to judge of the intent of the writing; and if they declare they have done fo, it will annul their verdict. Confequently, the court alone can, and muft deterrine, whether the defendant has been guilty of any crime. The jury have nothing to do with it. They can only find, whether the defendant published the paper, and whether any occafional blank in it, as for example kg, is rightly filled up in the information, and means king. Now the attorneygeneral is an officer during pleasure, not upon oath, and has the power of filing an information against whom he pleafes, and of putting him upon his trial. The writer of this, or any other paper, controverting by argument any decifion of law, or act of administration, may become an object of their refentment. What he fays may be true, and of the laft confequence to the public; but being against the miniftry, and deeply affecting their power and intereft, it may be deemed proper to endeavour at a condemnation of it by a court of juftice in order to punish the writer, and to prevent the like for the future. The chief juftice of the King's

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