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Publisher criminally liable for acts of his servants.
the ottence of
nominal punishment. Two doctrines, however, were maintained in this case, which excepted libels from the general principles of the criminal law. By the first, a publisher was held criminally answerable for the acts of his servants, un
less proved to be neither privy nor assenting to the publication of a libel. So long as exculpatory evidence was admitted, this doctrine was defen
sible ; but judges afterwards refused to admit such evidence, holding that the publication of a libel by a publisher's servant was proof of his criminality. And this monstrous rule of law prevailed until 1843, when it was condemned by Lord Campbell's Libel Act.
The second doctrine was wholly subversive of the rights Right of Jury of juries in cases of libel. Already, on the trial to judge of
of the printers of the “ North Briton,” Lord Mans. libel, deniod. field had laid it down, that it was the province of the court alone to judge of the criminality of a libel. This doctrine, however questionable, was not without authority ;? and was now enforced with startling clearness by his lordship. The only material issue for the jury to try, was whether the paper was libellous or not; and this was emphatically declared to be entirely beyond their jurisdiction. Trial by jury was the sole security for the freedom of the press; and it was found to have no place in the law of England. Again, on the trial of Woodfall, his lordship told the jury
that, " as for the intention, the malice, the sedition,
or any other harder words which might be given 13ch, 1770.
in informations for libels, public or private, they were merely formal words, mere words of course, mere inferences of law, — with which the jury were not to concern themselves." The jury, however, learning that the
Woodfall's trial, June
16 & 7 Vict., c. 96, 97; Hans. Deb., 3d Ser., lvi. 395, &c.
? Lord Raymond in Franklin's Case, 1731; Ch. Justice Lee in Owen's case, 1752. — St. Tr., xvii. 1243; xviii. 1203; Parl. Hist., xvi. 1275.
8 Burr., 2686; State Tr., XX. 803.
offence which they were trying was to be withıdrawn from their cognizance, adroitly hit the palpable blot of such a doctrine, by finding Woodfall“ guilty of printing and publishing only.” In vain was it contended, on the part of the crown, that this verdict should be amended, and entered
Nov. 20th, as a general verdict of guilty. The court held the 1770. verdict to be uncertain, and that there must be a new trial." Diller, the printer and publisher of the “ Evening
Miller's trial, Post," was next tried, at Guildhall. To avert July 18th, such a verdict as that in Woodfall's ca-e, Lord
1770. Mansfield, in language still stronger and more distinct, laid it down, that the jury must not concern themselves with the character of the paper charged as criminal, but merely with the fact of its publication, and the meaning of some few words not in the least doubtful. In other words, the prisoner was tried for his offence by the judge and not by the jury. In this case, however, the jury boldly took the matter into their own hands, and returned a verdict of not guilty.
Other printers were also tried for the publication of this same letter of Junius, and acquitted. Lord Mans- Disnpproval field bad, in fact, overshot the mark; and his dan- of Loru Mans. gerous doctrines recoiled upon himself. Such triues. startling restrictions upon the natural rights of a jury excited general alarm and disapprobation. They were impugned in several able letters and pamphlets; and above all, in the terrible letter of Junius to Lord Mansfield himself. It was clear that they were fatal to the liberty of the press. Writers, prosecuted by an officer of the crown, without the investigation of a grand jury, and denied even a trial by their peers, were placed beyond the pale of the law. These trials also became the subject of animadversion
1 State Tr., xx. 895.
Lord Chate ham, Dec.
in Parliament. On a motion of Captain Constantine Phipps,
for a bill to restrain ex-officio informations, grare
opinions were expressed upon the invasion of the motion, Nov. rights of juries, and the criminal responsibility 27th, 1170.
of a publisher for the acts of his servants. Lord Mansfield's doctrines were questioned by Mr. Cornwall, Mr. Serjeant Glynn, Mr. Burke, Mr. Dunning, and Sir W. Meredith ; and defended by Mr. Attorney-General De Grey, and Mr. Solicitor-General Thurlow.? Lord Chatham, in the House of Lords, assailed Lord
Mansfield, for his directions to juries in the recent libel cases.
Lord Mansfield justified them, and bth, 1770.
Lord Camden desired that they should be fully stated, in order that the House might judge of their legality.
This debate was followed, in the Commons, by a motion of Mr. Serjonnt Mr. Serjeant Glynn for a committee, to inquire Glyon's mo- into the administration of criminal justice, par 6th, 1770.
ticularly in cases relating to the liberty of the press, and the constitutional power and duty of juries. The same controverted questions were again discussed ; and such was the feeling of the House, that the motion was lost by a majority of eight only. In this debate, Mr. Charles Fox gave little promise of his future exertions to improve the law of libel. He asked, where was the proof, “ that juries are deprived of their constitutional rights ?” “ The abettors of the motion," he said, " refer us to their own libellous remonstrances, and to those infamous lampoons and satires which they have taken care to write and circulate." The day after this debate, Lord Mansfield desired that the of submitting a motion, or making a statement to the House, he merely informed their Lordships that he had left with the clerk of the House a copy of the judgment of the Court of King's Bench in Woodfall's case, which their Lordships might read, and take copies of, if they pleased. This, however, was enough to invite discussion ; and on the following day, Lord Camden accepted this paper as a challenge directed personally to himself. “ He has thrown down the glove,” he said, " and I take it up. In direct contradiction to him, I maintain that his doctrine is not the law of England." He then proposed six questions to Lord Mansfield upon the subject. His Lordship, in great distress and confusion, said, “ he would not answer interrogatories,” but that the matter should be discussed. No time, however, was fixed for this discussion; and notwithstanding the warmth of the combatants, it was not resumed.
Lords might be summoned on the 10th of Defield produces the judgment cember, as he had a communication to make to Woodfall's their Lordships. On that day, however, instead 1 Mr. Wedderburn also spoke against ex-officio informations. 3 Parl. Hist., xvi. 1127, 1175 (two reports). 8 Parl. Hist., xvi. 1302.
4 Ayes, 176; Noes, 184; Parl. Hist., xvi. 1211; Cavendish Deb., ii. 89; Walp. Mem., iv. 211.
So grave a constitutional wrong, however, could not be suffered without further remonstrances. Mr. Dowdes- Mr. Dowdes. well moved for a bill to settle doubts concerning March 7th, the rights of jurors in prosecutions for libels, which 1771. formed the basis of that brought in, twenty years later, by Mr. Fox. The motion was seconded by Sir G. Savile, and supported by Mr. Burke, in a masterly speech, in which he showed, that if the criminality of a libel were properly excluded from the cognizance of a jury, — then should the malice in charges of murder, and the felonious intent in cbarges of stealing, be equally removed from their jurisdiction, and confided to the judge. If such a doctrine were permitted to encroach upon our laws, juries would " become a dead letter in our constitution.” The motion was defeated on a question of adjournment. All the Whig leaders were sensible of the danger of leaving public writers at the mercy
i Parl. Hist., xvi. 1321; Preface to Woodfall's Junius, i. 49; Letter No. 82, Junius; Woodfall's Ed., iii. 295; Walpole's Mem., iv. 220; Lord Campbell's Lives of the Chancellors, v. 295.
2 Rockingham Mem., ii. 198. 8 218 to 72; Parl. Hist., xvii. 43; Burke's Works, x. 109; Ed. 1812.
of the courts; and Lord Rockingham, writing to Mr. Dowdeswell, said," he who would really assist in reëstablishing and confirming the right in juries to judge of both law and fact, would be the best friend to posterity.”? This work, however, was not yet to be accomplished for many years; and the law of libel continued to be administered by the courts, according to the doctrine which Parliament had hitherto shrunk from condemning. But the rights of juries continued to be inflexibly main
tained in the courts, by the eloquence and noble supports the courage of Mr. Erskine. The exertions of that rights of
consummate advocate in defence of the Dean of Case of Dean St. Asaph, are memorable in forensic history. At of St. Asaph.
various stages of the proceedings in this case, he vindicated the right of the jury to judge of the criminality Nov. 15th, of the libel; and in arguing for a new trial, deliv1779.
ered a speech, which Mr. Fox repeatedly declared to be the finest argument in the English language.” He maintained that the defendant had had, in fact, no trial; having been found guilty without any investigation of his guilt, and without any power left to the jury to take cognizance of his innocence.” And by the most closely connected chain of reasoning, by authorities, and by cases, he proved that the anomalous doctrine against which he was contending was at variance with the laws of England. The new trial was refused; and so little did Lord Mansfield anticipate the approaching condemnation of his doctrine, that he sneered at the “ jealousy of leaving the law to the court," as “puerile rant and declamation.” Such, however, was not the opinion of the first statesmen of his own time, por of posterity.
Mr. Erskine then moved in arrest of judgment. He had 1 Rockingham Mem., ii. 200.
2 In 1778. He had only been called to the bar on the last day of the preceding term. - St. Tr.; xxi. 1; Erskine's Speeches, i. 4; Edinburgh Review, Vol. xvi. 103.
3 Note to St. Tr., xxi. 971.