to guilty or not guilty, were merely indifferent. This par ticular motive, combined with his general purpose to contract the power of juries, will account for the charge he delivered in Woodfall's trial. He told the jury, in so many words, that they had nothing to determine, except the fact of printing and publishing, and whether or no the blanks or inuendoes were properly filled up in the information; but that, whether the defendant had committed a crime or not, was no matter of consideration to twelve men, who yet, upon their oaths, were to pronounce their peer guilty or not guilty. When we hear such nonsense delivered from the bench, and find it supported by a laboured train of sophistry, which a plain understanding is unable to follow, and which an unlearned jury, however it may shock their reason, cannot be supposed qualified to refute, can it be wondered that they should return a verdict perplexed, absurd, or imperfect? Lord Mansfield has not yet explained to the world, why he accepted of a verdict which the court afterwards set aside as illegal; and which, as it took no notice of the inuendoes, did not even correspond with his own charge. If he had known his duty, he should have sent the jury back. I speak advisedly, and am well assured, that no lawyer of character, in Westminster-hall, will contradict me. To show the falsehood of lord Mansfield's doctrine, it is not necessary to enter into the merits of the paper which produced the trial. If every line of it were treason, his charge to the jury would still be false, absurd, illegal, and unconstitutional. If I stated the merits of my letter to the king, I should imitate lord Mansfield, and travel⚫ out of

• The following quotation from a speech delivered by lord Chatham, on the 11th of December, 1770, is taken with exactness. The reader will find it curious in itself, and very fit to be inserted here. "My lords, the verdict given in Woodfall's trial was, guilty of printing and publishing only;' upon which two motions were made in court; one, in arrest of judgment, by the defendant's counsel, grounded upon the ambiguity of the verdict; the other, by the counsel for the crown, for a rule upon the defendant, to show cause why the verdict should not be entered up according to the legal import of the words. On both mo

the record. When law and reason speak plainly, we do not want authority to direct our understandings. Yet, for the honour of the profession, I am content to oppose onel awyer to another; especially when it happens that the king's attorney-general has virtually disclaimed the doctrine by which the chief justice meant to insure success to the prosecution. The opinion of the plaintiff's counsel (however it may be otherwise insignificant) is weighty in the scale of the defendant. My lord chief justice de Grey, who filed the information ex officio, is directly with me. If he had concurred in lord Mansfield's doctrine, the trial must have been a very short one. The facts were either admitted by Woodfall's counsel, or easily proved to the satisfaction of the jury: but Mr. de Grey, far from thinking he should acquit himself of his duty, by barely proving the facts,

tions a rule was granted; and soon after the matter was argued before the court of king's bench. The noble judge, when he delivered the opinion of the court upon the verdiet, went regularly through the whole of the proceedings at Nisi Prius, as well the evidence that had been given, as his own charge to the jury. This proceeding would have been very proper, had a motion been made on either side for a new trial; because either a verdict given contrary to evidence, or an improper charge by the judge at Nisi Prius, is held to be a sufficient ground for granting a new tria!. But when a motion is made in arrest of judgment, or for establishing the verdict, by entering it up according to the legal import of the words, it must be on the ground of something appearing on the face of the record; and the court, in considering whether the verdict shall be established or not, are so confined to the record, that they cannot take notice of any thing that does not appear on the face of it; in the legal phrase, they cannot travel out of the record. The noble judge did travel out of the record; and I affirm, that his discourse was irregular, extrajudicial, and unprecedented. His apparent motive for doing what he knew to be wrong, was that he might have an opportunity of telling the public extrajudicially, that the other three judges concurred in the doctrine laid down in his charge."

entered largely, and, I confess, not without ability, into the demerits of the paper, which he called a seditious libel. He dwelt but lightly upon those points which (according to lord Mansfield) were the only matter of consideration to the jury. The criminal intent, the libellous matter, the pernicious tendency of the paper itself, were the topics on which he principally insisted, and of which, for more than an hour, he tortured his faculties to convince the jury. If he agreed in opinion with lord Mansfield, his discourse was impertinent, ridiculous, and unreasonable. But, understanding the law as I do, what he said was at least consistent, and to the purpose.

If any honest man should still be inclined to leave the construction of libels to the court, I would entreat him to consider what a dreadful complication of hardships he imposes upon his fellow subjects. In the first place, the prosecution commences by information of an officer of the crown, not by the regular constitutional mode of indictment before a grand jury. As the fact is usually admitted, or, in general, can easily be proved, the office of the petty jury is nugatory: the court then judges of the nature and extent of the offence, and determines, ad arbitrium, the quantum of the punishment, from a small fine to a heavy one, to repeated whipping, to pillory, and unlimited imprisonment. Cutting off ears and noses might still be inflicted by a resolute judge: but I will be candid enough to suppose, that penalties, so apparently shocking to humanity, would not be hazarded in these times. In all other criminal prosecutions, the jury decides upon the fact and the crime in one word, and the court pronounces a certain sentence, which is the sentence of the law, not of the judge. If lord Mansfield's doctrine be received, the jury must either find a verdict of acquittal, contrary to evidence, which, I can conceive, might be done by very conscientious men, rather than trust a fellow-creature to lord Mansfield's mercy; or they must leave to the court two offices, never but in this instance united, of finding guilty, and awarding punishment.

"But," says this honest lord chief justice, " if the paper be not criminal, the defendant (though found guilty by his peers) is in no danger, for he may move the court in arrest

of judgment." True, my good lord; but who is to determine upon the motion? Is not the court still to decide, whether judgment shall be entered up or not? and is not the defendant this way as effectually deprived of judgment by his peers, as if he were tried in a court of civil law, or in the chambers of the inquisition? It is you, my lord, who then try the crime, not the jury. As to the probable effect of the motion in arrest of judgment, I shall only observe, that no reasonable man would be so eager to possess himself of the invidious power of inflicting punishment, if he were not predetermined to make use of it.

Again, we are told that judge and jury have a distinct office; that the jury is to find the fact, and the judge to deliver the law. "De jure respondent judices, de facto jurati." The dictum is true, though not in the sense given to it by lord Mansfield. The jury are undoubtedly to determine the fact; that is, whether the defendant did or did not commit the crime charged against him. The judge pronounces the sentence annexed by law to that fact so found; and if, in the course of the trial, any question of law arises, both the counsel and the jury must, of necessity, appeal to the judge, and leave it to his decision. An exception, or plea in bar, may be allowed by the court; but, when issue is joined, and the jury have received their charge, it is not possible, in the nature of things, for them to separate the law from the fact, unless they think proper to return a special verdict.

It has also been alleged, that, although a common jury are sufficient to determine a plain matter of fact, they are not qualified to comprehend the meaning, or to judge of the tendency of a seditious libel. In answer to this objection (which, if well founded, would prove nothing as to the strict right of returning a general verdict,) I might safely deny the truth of the assertion. Englishmen, of that rank from which juries are usually taken, are not so illiterate as (to serve a particular purpose) they are now represented: or, admitting the fact, let a special jury be summoned in all cases of difficulty and importance, and the objection is removed. But the truth is, that if a paper, supposed to be a libel upon government, be so obscurely worded, that

twelve common men cannot possibly see the seditious meaning and tendency of it, it is in effect no libel. It cannot inflame the minds of the people, nor alienate their affections from government; for they no more understand what it means, than if it were published in a language unknown to them.

Upon the whole matter, it appears, to my understanding, clear, beyond a doubt, that if, in any future prosecution for a seditious libel, the jury should bring in a verdict of acquittal, not warranted by the evidence, it will be owing to the false and absurd doctrines laid down by lord Mansfield. Disgusted at the odious artifices made use of by the judge to mislead and perplex them, guarded against his sophistry, and convinced of the falsehood of his assertions, they may, perhaps, determine to thwart his detestable purpose, and defeat him at any rate. To him, at least, they will do substantial justice. Whereas, if the whole charge laid in the information be fairly and honestly submitted to the jury, there is no reason whatsoever to presume that twelve men, upon their oaths, will not decide impartially between the king and the defendant. The numerous instances, in our state trials, of verdicts recovered for the king, sufficiently refute the false and scandalous imputations thrown, by the abettors of lord Mansfield, upon the integrity of juries. But, even admitting the supposi tion, that, in times of universal discontent, arising from the notorious mal-administration of public affairs, a seditious writer should escape punishment, it makes nothing against my general argument. If juries are fallible, to what other tribunal shall we appeal? If juries cannot safely be trusted, shall we unite the offices of judge and jury, so wisely divided by the constitution, and trust implicitly to lord Mansfield? Are the judges of the court of king's bench more likely to be unbiassed and impartial than twelve yeomen, burgesses, or gentlemen, taken indifferently from the country at large? Or, in short, shall there be no decision, until we have instituted a tribunal from which no possible abuse or inconvenience whatsoever can arise? If I am not grossly mistaken, these questions carry a decisive answer along with them.