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 alledged 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 supposition that, in times of universal discontent, arising from the notorious maladministration 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 county 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.

Having cleared the freedom of the press from a restraint equally unnecessary and illegal, I return to the use which has been made of it in the present publication.

National reflections, I confess, are not justified in theory, nor upon any general principles. To know how well they are deserved, and how justly they have been applied, we must have the evidence of facts before us. We must be conversant with the Scots in private life, and observe their principles of

acting to us, and to each other; the characteristic · prudence, the selfish nationality, the indefatigable smile, the persevering assiduity, the everlasting profession of a discreet and moderate resentment. If the instance were not too important for an experiment, it might not be amiss to confide a little in their integrity. Without any abstract reasoning upon causes and effects, we shall soon be convinced by experience, that the Scots, transplanted from their own country, are always a distinct and separate body from the people who receive them. In other settlements, they only love themselves; in England they cordially love themselves, and as cordially hate their neighbours. For the remainder of their good qualities, I must appeal to the reader's observation, unless he will accept of my Lord Barrington's authority. In a letter to the late Lord Melcombe, published by Mr. Lee, he expresses himself with a truth and accuracy not very common in his Lordship's lucubrations. And Cockburne, like most of ' his countrymen, is as abject to those above him as ' he is insolent to those below him.' I am far from meaning to impeach the articles of the union. If the true spirit of those articles were religiously adhered to, we should not see such a multitude of Scotch commoners in the Lower House, as representatives of English boroughs, while not a single Scotch borough is ever represented by an EnglishWe should not see English peerages given to Scotch ladies, or to the elder sons of Scotch peers,

man.

and the number of sixteen doubled and trebled by a scandalous evasion of the act of union. If it should ever be thought advisable to dissolve an act, the violation or observance of which is invariably directed by the advantage and interest of the Scots, I shall say very sincerely with Sir Edward Coke, 'When poor England stood alone, and had not "the access of another kingdom, and yet had more and as potent enemies as it now hath, yet the King of England prevailed.'

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Some opinion may now be expected from me upon a point of equal delicacy to the writer, and hazard to the printer. When the character of the chief magistrate is in question, more must be understood, than may safely be expressed. If it be really a part of our constitution, and not a mere dictum of the law, that the King can do no wrong,' it is not the only instance, in the wisest of human institutions, where theory is at variance with practice. That the Sovereign of this country is not amenable to any form of trial known to the laws, is unquestionable. But exemption from punishment is a singular privilege annexed to the royal character, and no way excludes the possibility of deserving it. How long, and to what extent a King of England may be protected by the forms, when he violates the spirit of the constitution, deserves to be considered. A mistake in this matter proved fatal to Charles and his son. For my own part, far from