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An Enquiry into the
Extent of the Power of Juries, Trials of Indictments or Informations, For
Publishing Seditious, or Other Criminal Writings, or Libels, Extracted from
a Miscellaneous Collection of Papers that Were Published in 1776, Intituled,
Additional Papers Concerning the Province of Quebec. |
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Transcription |
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Sanford Collection
March 31, 1917An Enquiry into the Extent of the Power of
Juries, &c. |
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An Enquiry into the Extent of the Power of Juries, on
Trials of Indictments of Informations, for Publishing Seditious, or Other
Criminal Writings, or Libels, Extracted from a Miscellaneous Collection of
Papers that Were Published in 1776, Intituled, Additional Papers
Concerning the Province of Quebec.
Dublin:
For Messrs. E. Lynch, P. Byene, W. Jones, W. M'Kenzie, E. M'Allister, and N.
Watts.
1792. |
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An Enquiry, &c.
AS I highly esteem and reverence the Trial by Jury, which
forms one of the most distinguishing bulwarks of the civil libery which
Englishmen enjoy, I am always anxious to see Jurymen exert their power with
such direction and moderation, as to give their fellow-subjects continually
fresh cause to rejoice at their being invested with it. And, with this
view, I always wish them to avoid two mistakes into which they are sometimes
apt to fall. The one is, the giving the plaintiff, in an action of
trespass, a
greater |
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greater sum of money, by way of compensation for the injury he has
sustained, than is, in their opinion, sufficient for that purpose; which
they are sometimes inclined to do through a laudable spirit of indignation
against the practice of such oppression as is the subject of the complaint
before them, and with a design to deter other persons from being guilty of
the like. But this is departing from the business that is referred to
their decision, and taking upon them to be criminal judges, that inflict
punishment by way of terror and example, instead of assessors, or
appreciators, of the magnitude of the particular injury that is the
subject of the action which they are called upon to try. Every
instance of an irregularity of this kind in the exercise of their authority,
I am fully persuaded, lessens the respect and confidence which the public
entertains for their decisions, and thereby tends, in some degree, to
undermine and weaken their authority. The other manner of deviating
from the line of their duty (of which, however, I believe, there are very
few instances) is an obstinate resolution to determine a matter of law, that
happens to be involved in the issue, or question,
referred |
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referred to their decision, in a manner contrary to the direction of the
judge who tries the cause. This, I confess, they have a legal right to
do, because the whole matter contained in the issue joined between the
parties, whether it be fact or law, is brought before them and referred to
their decision. But, surely, common sense must teach us, that, if they
mean to do justice between the parties, they ought, with respect to such
points (in which they must know themselves to be unskilled), to be guided by
the opinion of the judge; or, if they think that may be partial of
insufficient, to find a special verdict, to the end that the law may be
rightly determined, upon full argument by the judges of the court in which
the action was brought. There is, however, one
subject upon which, I imagine, all lovers of public liberty would be
inclined to think, that juries ought to have the whole power of determining
the matter in contest. The subject, I mean, is the Doctrine of
seditious libels, and the criminal prosecutions carried on against the
writers and publishers of them. These prosecu-
tions |
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[prosecu-]tions are attended with so much danger to that most valuable
privilege of English subjects, the Liberty of the Press, or the right
of animadverting freely and publicly (but with a strict adherence to truth)
on the pernicious tendency of public measures, that one would wish them to
be intirely under the controul of the people themselves, so as
never to be carried on with success but when the people themselves
were satisfied of the falsehood and mischieveous tendency, or, at least, of
the mischievous tendency of the writings which are the occasion of them.
And for this purpose it would be necessary, that the whole determinations of
these prosecutions should be vested in the juries, who are a part of the
people, and may be supposed to entertain the same sentiments with them.
For, if the event of these prosecutions was to depend upon the inclinations
of the judges, there would be reason to apprehend, that they would meet with
success much oftener than would be consistent with that spirit of free
enquiry and examination of the measures of government, which is necessary to
the correction of the abuses of power, and the preservation of public
liberty Those magistrates most naturally be supposed
to |
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be, in some degree, partial to government in cases of this kind, even from
respectable motives. Their friendship and their gratitude would often
contribute to make them so; -- not to mention their self-interest and
ambition, which would lead them to hope for future favours from the crown.
For, who would be the object of the censures contained in the writings under
prosecution? Probably the king's ministers of state, by whose favour
and patronage they, perhaps, would have obtained their offices of judges,
and might hope to gain still higher honours for themselves, or preferments
for their families. In these cases, therefore, a jury of men of
ordinary rank, as, for example, of substantial house-keepers in the
city of London, would be much less likely to interpret the intentions of the
writers and publishers of such writings in a severe manner, and to consider
the tendency of them as of dangerous consequence to the public, than a bench
of judges would be: and yet, they would be sufficiently interested in
the preservation of the public peace (upon which the continuance of their
own liberty, trade, and property, would depend) to be free from any undue
bias of [f]avour towards
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those persons, if the writings, they had published, had a real and manifest
tendency to disturb it: and therefore, upon the whole, they would be a
safer and more impartial tribunal for the determination of these matters
than the judges. It is reasonable, therefore, that all lovers of
public liberty should wish, that the whole power of determining the merits
of prosecutions upon these subjects should be vested in the juries.
But, in order to its being so, it is by no means necessary, in my
apprehension, to depart in any degree from the rules above mentioned,
concerning the distinct provinces of judges and juries in the decision of
law suits, and the moral obligation, under which jurymen have been supposed
to lie, to keep strictly within the bounds of their own province, without
ever presuming to determine any matters of law. All these rules may,
as I conceive, be most inviolably adhered to, and yet juries will remain in
possession of the whole of this important power of deciding all the matters
in contest upon prosecutions for seditious libels. For in these
prosecutions all the matters in contest between the crown and the defendant
upon an issue of Not guilty are mere
matters |
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matters of fact, without any the least mixture of matters of law.
This I shall now endeavour to prove, by considering the several allegations
which go to the composition of a criminal charge for writing a seditious
libel.
An indictment, or information against a man for writing
a seditious libel, consists of the four following allegations, and of
nothing more; to wit, first, That the defendant wrote the paper in question,
which is always set forth word for word, in the indictment or information;
secondly, That he published it; thirdly, That he published it with a bad
intent; and fourthly, That the paper has a tendency to disturb the public
peace. I speak of an indictment or information in which the seditious
paper is not charged to be false, but only scandalous and malicious, and
tending to cause a breach of the peace. For, if the charge of
falsehood is inserted in the information, that must be reckoned as a fifth
allegation contained in it. This was formerly thought a necessary part
of a charge for publishing a seditious libel, but was omitted (for the first
time, as I have heard) in the in-formation |
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[in-]formation brought by Sir Fletcher Norton in 1764, against Mr. Wilkes,
for publishing the 45th number of the paper called the North Briton, and has
been omitted in most of the informations that have been brought for such
publications since that time. The reason for omitting it was, to avoid
the altercation which it used constantly to occasion at the bar upon the
trial of these informations, and the plausible, if not just, pretence it
afforded to the defendant's counsel to insist, that the charges contained in
them were not proved. For, though this charge of falsehood used to be
inserted in the informations, no attempts were ever made to support it by
proof, and the judges who tried these informations, would neither require
the counsel for the crown to prove that the writings in questions were
false, nor even permit the counsel for the defendants to bring proof that
they were true; so that every information that was brought for a seditious
libel, was defectively proved in this article of the falsehood of it.
Yet the juries used often to find verdicts for the crown against the
defendants, notwithstanding this defect in the proof of the charges brought
against them; and the court of King's-bench used, in consequence
of |
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of these verdicts, to pass judgments, and inflict punishments upon them.
This, however, was sometimes complained of as an irregular way of
proceeding, that was not consistent with the rules of law observed in other
cases, and more especially in criminal proceedings, in which, in all other
instances, the greatest strictness is required. And it was often made
use of at the trial, by the defendant's counsel as an argument to the jury,
to persuade them not to find the defendant guilty, since the counsel for the
crown had not made good the whole of the charge against him, but had failed
with respect to so material an article as the falsehood of the paper
complained of. "For," said they, "if the law be really so severe as to
consider the publication of a truth as a public crime, and deserving of
public punishment, it must at least be allowed, that it is a less crime than
the publication of the same things would be if they were false; and
therefore, the defendant, who is only proved to have published the writings
in question without any proof that they are false, ought not to be
considered in the same light, and made liable to be punished in the same
manner, as if it had been proved that the said writings were false,
as |
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as he will be, if the jury should find him guilty upon this information."
This argument (which I take to be unanswerable) was frequently made use of
by the counsel for the defendants upon the trial of these informations,
while the charge of the falsehood of the libel or writing complained of used
to be inserted in them: and it probably might sometimes prevail with
the juries (not withstanding the directions of the judges to the contrary),
to find the defendants not guilty. Sir Fletcher Norton, therefore,
seeing that the insertion of this charge of falsehood in these informations
tended only to hamper the proceedings of the officers of the crown against
the publishers of seditious libels, resolved to leave it out for the future
in all the informations of that kind of which he was to have the management;
in doing which he thought himself sufficiently warranted by the preceding
declarations of the judges on various occasions, that this charge of
falsehood was an immaterial part of every information for a seditious
libel, which the prosecutor was not bound to prove, nor the defendant
permitted to disprove. And it is said, that Sir Fletcher's successors
in office have followed his example. And thus, ever since that
prosecution of Mr.
Wilkes |
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Wilkes for the publication of the famous number 45 of the North Briton,
those informations have been drawn up without alledging that the writings
complained of in them were false; and the prosecutions of these offenses
have gone on, in this respect, more smoothly than before, being rid of all
the difficulties, which the insertion of that charge of falsehood used to
give rise to. I say then, that in an information
for writing and publishing a seditious libel, which is not charged to be
false as well as malicious and scandalous, there are only the four
allegations before mentioned, to wit, first, that the defendant wrote it;
2dly, that he published it; 3dly, that he had a bad intention in publishing
it; and 4thly, that the paper has a mischievous tendency, or a tendency to
produce certain bad effects that are described in the information, such as
alienating the affections of his Majesty's subjects from his Majesty's
person and government, or raising jealousies in their minds against the
parliament or the courts of justice, and the like. Now these
allegations, I conceive, to be all matters of fact. The two first of
them, to
wit, |
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wit, the having writ the paper, and the having published it, are universally
allowed to be so: but the two latter, to wit, the intention of
the publisher, and the tendency of the paper to produce the mischievous
effects described in the information, have been sometimes declared by the
judges to the matters of law, or as they have expressed it) inferences of
law drawn from the fact of publication, and fit only to be considered and
determined by the judges, without the interference of the juries. But
this seems to be a modern doctrine of the judges, that has been adopted by
them only since the time when Lord Raymond was chief justice of the king's
bench. For, before that time, we find many judges (and those too, some
of them men of character for abilities and learning in the law, and others
of them great friends to the royal prerogative, and to a rigorous method of
government) who were of opinion, that both the intention of the writer or
publisher of the paper, and the tendency of the paper to produce certain ill
effects, were proper objects of the jury's consideration. And this
opinion, I conceive, to be agreeable to the truth, for the following
reasons.
In |
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In making this enquiry into the true distinction
between matters of law and matters of fact, in the law-sense of those words,
that is, between matters which are fit only for the consideration of the
judges, and matters which are fit objects of the consideration and
determination of a jury, I think, we may assume it as an axiom, or
fundamental maxim, which every body must allow the truth of, that every
thing that can be proved by the testimony of witnesses, is a fit object of
the jury's consideration. For of this sort of evidence, this
external evidence, they are universally allowed to be the proper judges:
and the oath they take, when they are impanneled, "to try the issue joined
between the parties and a true verdict give according to the evidence,"
plainly makes them so; and indeed, it gives them a power of judging and
determining according to other evidence, besides the testimony of
witnesses, when such other evidence is produced before them.
But it is sufficient for the present purpose, that they should be allowed to
be true and proper judges of all that external evidence that consists in the
testimony of witnesses. We must, therefore, enquire, whether or no the
intention of a man in publishing a writing, and
the |
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the tendency of the writing to produce a particular ill effect, are matters
which are capable of being proved, or disproved, by the testimony of
witnesses. Now it appears to me, that they most manifestly are capable
of being so proved, or disproved. For, first, as to the intention.
Who can doubt but that proof may be given by witnesses, that the paper was
published with an innocent, or even a good intent, or, in some cases, with
an absence of the bad intent alledged in the information, and without which
there can be no guilt in the publisher? This may be easily illustrated
by the following examples, It is allowed upon these prosecutions, that the
delivery of a single paper from one person to another (whether the paper be
in print or manuscript), is an act of publication. Suppose, therefore,
that it could be proved, that the defendant, who was prosecuted for
publishing a seditious paper, and who had been already proved to have
delivered it to another person, that is, to have published it, was an
illiterate man, who could neither write nor read, and that he knew nothing
of its contents, and that he was a servant to a printer or bookseller (as
for instance, their porter), and had delivered the paper,
by |
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by his master's order, amongst the papers, or parcels of goods.
Certainly this proof would be material to the question, whether the
defendant was guilty or not of the crime imputed to him by the information,
and would be sufficient to shew, that he had not that ill intention in
publishing the paper, which was necessary to make him guilty of that crime,
and consequently would be a ground for his acquittal. And, as this
proof would be extraneous to the paper itself, and could only be given by
witnesses, it could be given only to the jury, who are confessedly the
judges of all the evidence that is delivered by witnesses in every cause.
If therefore, the information were brought against such servant or porter,
he ought evidently be acquitted by the jury on account of this absence of
the criminal intention imputed to him in the information. If, indeed,
the information was brought against the bookseller himself, instead of his
porter, and the same proof was to be produced against him, as has been just
now supposed to have been brought against his porter, to wit, that he had
delivered the paper to another person with his own hand, but that (though he
was skilled in reading and writing) he had not read it, and
did |
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did not know its contents at the time he delivered it, this, perhaps, might
not be deemed sufficient to excuse him from the charge of publishing it with
a criminal intention, because it was his duty, as a master bookseller, to
attend to the nature of the things he published, and examine them, or cause
them to be examined by other proper persons, before he ventured to make them
public. I say, it is possible that he might, in such a case, be held
guilty of the criminal intention imputed to him in the information; though I
must confess, I do not think it quite clear that he ought to be so.
And even if, upon an information against a bookseller for publishing a
seditious libel, it should be proved, that the servant, or shopman, of such
bookseller, had delivered a seditious paper to a purchaser, by virtue of his
master's general directions to him to attend in the shop, and sell books to
his customers, such a delivery by the servant might, perhaps (though I am
not without some doubts about it), be held good presumptive evidence of an
intention in the master to publish it, although it should be proved that the
master himself knew nothing of the contents of it; because it might be said
in this
case |
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case, as well as in the former, that the master had been guilty of a
criminal negligence, in not previously examining it, or causing it to be
examined, before he ventured to make it public. But if, in this last
instance of the delivery of the paper by the servant of the bookseller, it
should be proved, not only that the master knew nothing of its contents at
the time of its delivery or publication, but that, at that time, and for a
week before the said delivery of it, or even before it had been received
into his shop, or ordered it to be sent to it, he had been sick in bed, and
delirious, and that the whole business of his shop had been conducted by his
foreman, he must, I presume, in consequence of such evidence, be esteemed
free from the intention of publishing it imputed to him in the information,
notwithstanding it had been published in consequence of his general
directions to his servant to sell books to his customers; because he would,
in such a case, have been incapable, at the time of the publication of such
paper, of superintending the business of his shop, and examining the books
that were brought into it, and consequently would not have been guilty of
the criminal negligence
above |
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above mentioned: and therefore, in such a case, he must, I
presume, be acquitted. Now, in all these cases, the proofs here
mentioned (which relate to the intention of the defendant in publishing the
paper in question) could be given only by witnesses, and consequently could
be given only before a jury; and therefore, the intention of the defendant
in publishing the paper is a proper object for the jury's consideration.
Many more instances might be brought to shew, that the intention of a man in
writing, or publishing a paper (or indeed in doing any other act, of which a
moral agent is capable), may be proved, or disproved, by the testimony of
witnesses, and consequently is a fit subject for the consideration of a
jury. And in most cases it can be proved no other way. Witnesses
may prove, that a writer of a libel confessed to them, or declared to them
with triumph, that he wrote the paper in question on purpose to raise such
or such a disturbance, to cause a mutiny in the army or the fleet, or a
resistance to a new tax, or to some other act of government. Or they
may prove, that certain parties given to par-
ticular |
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[par-]ticular persons in the libel, are meant ironocally [sic], and contain
the severest censures; -- that they heard the writer confess he meant them
so, and declare that he hoped that the world would understand them so; --
that they know that the persons spoken of in the paper, are not usually
commended for the virtues therein ascribed to them, but are reproached by
their enemies for the want of them, and consequently, that the passage is to
be understood ironically. Such evidence would be highly proper and
useful towards ascertaining the criminal intention of the writer of the
paper in question; and without some such evidence, it will often be
impossible for either the judge or jury rightly to understand the meaning
and drift of the paper, or the intention of the writer in publishing it.
Now, such kind of evidence, as it can be given only by witnesses, can be
given only before a jury; and therefore, the jury must have a right to
determine, how far it tends to prove or disprove the point to which it
relates, to wit, the criminal intention of the publisher of the paper.
This seems to me to be so plain, that I am somewhat afraid my readers will
blame me for dwelling so long upon the
proof |
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proof of it, and be apt to say in the words of Cicero, concerning a man who
should take great pains to prove that Alexander alone, without the
assistance of his soldiers, could not have won the battle or Arbela,
uteris in re non dubia argumentis non necessariis. And
indeed I should not have thought it needed any proof, if I had not seen it
denied by persons of great authority, who have asserted, that the criminal
intention of the publisher of a libel is not a matter of fact, or matter fit
for the consideration of a jury, but merely a matter of law, or an inference
of law from the naked fact of publication, which the judges only ought to
make. Yet these very persons of authority acknowledge, that the right
of determining what the writer of the libel meant by the blanks and initial
letters, and the feigned names that are often to be found in seditious
libels, belongs to the jury only; which is not very consistent with the said
assertion, since these are a part of the writers intention, which those
persons contend to be a mere interference of law. I hope, therefore,
upon the whole, that the reader who dares to make use of his own judgment,
and is not disposed jurare in verba magistri,
will |
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will be fully convinced that the intention of a man, in publishing a
seditious paper, is a matter of fact, in the law-sense of the word, that is,
an object of the evidence of witnesses, and of the consideration and
determination of a jury, as well as the very act of publication itself.
It remains that we examine the fourth and last
allegation that is contained in one of these informations, to wit, the
tendency of the paper complained of to disturb the public peace, or produce
the other ill effects that are set forth in the information. Now this
point, I confess, is of a more subtle nature than either of the former
three, and may be more easily represented as a mere point of law, or
inference of law (as it is called) to be collected from the perusal of the
paper itself. And yet, I think, upon a close examination, it will
appear to be a matter of fact, or a proper subject for the consideration of
a jury, as well as the three former points.
In order to discover whether or no the tendency
of a particular paper is a matter of fact, or a fit object of the
consideration of a jury,
we |
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we must enquire whether or not it can be proved or disproved by the
testimony of witnesses. For, if it can, it is a matter of fact, and
the jury have a right to consider and determine it. Now it is certain,
that this tendency can in most, if not in all cases, be either proved or
disproved by witnesses; though it may also, in some cases, be collected from
the mere perusal of the paper. If the paper contains blanks and
initial letters (as most of these papers do), then it is most evident that,
till the meaning of those blanks is ascertained, the tendency of the paper
cannot be known; and the right of ascertaining the meaning of these blanks
is confessed on all hands to belong to the jury. Therefore, in these
cases, the right of determining the tendency of the paper must belong to the
jury. And, if the paper contains no blanks, but is full of allusions
to persons of great rank and power described under feigned names by
circumstances that are peculiar to them, it is necessary to have witnesses
to prove that those circumstances relate to the said persons, and
consequently that they are the persons meant to be pointed out to the scorn
and indignation of the public by the writer of the paper. Or in such a
case, the
witnesses |
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witnesses may testify that they heard the defendant, the writer of the
paper, himself, say, that he meant the said persons by the said description,
and that he hoped the public would not fail to understand him. Or they
may testify that they have often heard him utter the same invectives against
those persons as are contained in the paper in question, though without
confessing that he meant to describe those persons in the said paper, or
even that he was the writer of it. All these various kinds of evidence
would be admittable, in such a case, to prove, that the allusions in
question did relate to the said persons of rank and power; without which
relation, the said paper would be quite innocent and inoffensive, and have
no tendency to disturb the public peace. This tendency, therefore, of
the paper complained of to disturb the public peace, or produce the other
bad effects set forth in the information, is in all these cases a thing
capable of being proved by witnesses, and which, indeed, can be proved no
other way, and consequently is a fit object of the consideration of a jury,
or, in the law-sense of the words, a matter of fact. And even, if we
suppose the paper in question to
contain |
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contain neither blanks, nor initial letters, nor allusions to particular
persons under feigned names, nor any other sort of disguise whatsoever
(which seldom happens), but to name all the persons it means to speak of by
their known names and offices, yet even in this case it is certain, that
witnesses maybe admitted to prove or disprove the tendency of the paper,
that is, to confirm, or to controul and refute, that internal evidence of
its tendency, which, I acknowledged, will in some degree result from the
bare perusal of it. For witnesses may be brought to prove, that it has
actually occasioned that disturbance which it seemed to be intended to
create, as, for instance, that it has excited a spirit of dissatisfaction in
the fleet or the army, or against the administration of justice by the
king's courts, or the like. Such evidence of the paper's having
produced such ill effects would be the strongest evidence possible of its
tendency to produce them. And, on the other hand, if a paper was
writ that contained a real panegyric upon a great man, couched under the
form of a severe invective, ascribing to him those vices from which he was
known to be peculiarly exempt, and
denying |
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denying him those virtues in which he was known most to excel (as, for
example, calling the great Duke of Marlborough an ill-bred, passionate,
tyrannical man, that was utterly ignorant of the art of war, and quite given
up to drunkenness, when he was known to be the calmest-tempered, mildest,
best-bred gentleman of his age, of great skill in the art of war, and very
temperate), and an information should be brought against the writer of it,
for writing and publishing a seditious libel, it would in such a case be
lawful for the defendant to call witnesses to prove, that the great man
spoken of in the paper was so eminently free from the vices imputed to him
in it, that it could only be understood, by all persons who had any
knowledge of his character, as a panegyric on him, conveyed under the form
of an invective, and that it had generally so understood by all the world,
and consequently could have no tendency to excite those disturbances which a
belief of his having those vices would probably occasion. And if the
jury believed these witnesses, and consequently were of opinion, that the
paper had not the pernicious tendency ascribed to it in the information (and
which from the mere |
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| 26 |
mere perusal of it, with a knowledge of the character of the person spoken
of in it, one would be apt to think belonged to it), it would be their duty
to find the defendant Not guilty. In the next place, I will suppose
the opposite cafe to the former, to wit, that of a severe invective against
a great man, conveyed under the form of a panegyric, commending him for
virtues which he was generally thought to want, without any blanks, initial
letters, or feigned names. In such a case, it would be lawful for the
protector to produce witnesses to prove, that the writer of the paper was a
bitter enemy of the great man thus ironically commended in it; --that they
had often heard him express a very bad opinion of him, and deny him the
virtues ascribed to him in the paper, and ascribe to him the opposite vices;
-- that they themselves therefore understood the paper to be meant
ironically, and that they had met with several other persons, who had all
understood it in the same manner; -- that not only the writer, and the other
enemies of the great man, but even most of his friends were of opinion, that
he was not entitled to the praises bestowed on him in the paper, and that
they, therefore, on that account (as well as on account of the
known |
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known enemy of the writer against the great man), believed those praises to
be meant ironically, and intended to bring him into public odium and
contempt; -- and that they actually had produced that effect, and raised a
great disgust against him in the persons who were most connected with him,
and whose cheerful obedience, assistance and concurrence, were most
necessary to his discharging the duties of his great office with success and
advantage to the public. If these things were made out to the
satisfaction of the jury, it would be their duty to find the writer of the
paper guilty of publishing a seditious libel, notwithstanding the apparent
inoffensiveness of the paper, or its want of tendency to produce any ill
effect, so far as its tendency could be collected from the mere perusal of
it: so that in this, as well as in all the former instances, the
tendency of the paper would be ascertained by the testimony of witnesses,
and would consequently be the object of the consideration and determination
of the jury. We may therefore, I think, safely conclude, that this
fourth and last allegation, contained in an information against a man for
writing and publishing a seditious paper or libel, to wit, its
tendency |
 |
| 28 |
tendency to disturb the public peace, or to produce the other bad effects
set forth in the information, is a proper object of the consideration and
determination of a jury, or, in the law-sense of the phrase, a matter of
fact, as well as the three former allegations, of the writing the paper, the
publishing it, and the intention with which it was published.
I have hitherto considered those things only as being matters of fact, or
objects of a jury's consideration, which are capable of being proved or
disproved by witnesses; because this is the plainest and clearest mark of
distinction between them and matters of law that can, as I apprehend, be
given. But I conceive that the province of the jury extends a degree
further than this, and that they have a right to make all such inferences
from facts as may be made without any skill or knowledge of the law, even if
no new evidence could be given by witnesses in support of such inferences.
For such inferences from facts are merely operations of reason, which is a
talent common to all men, to jurymen as well as to judges: and, with
respect to the meaning of seditious papers, and the intentions of the
publishers |
 |
| 29 |
publishers of them; and their tendency to produce certain bad effects stated
in an information, it often happens that jurymen are better able to make
these inferences than judges, even where no evidence should be given by
witnesses concerning them; because they have often a more extensive
intercourse with the rest of mankind, and a greater knowledge of the
business and conversation of the world, than judges (who are men of retired
lives, given up to the study of the law, and the discharge of the duties of
their respectable offices) can be supposed to have. Those inferences,
therefore, ought not to be called inferences of law, but inferences of fact,
being a secondary or subordinate species of facts derived from the more
simple and direct facts, of which they are the circumstances or properties.
For facts may be divided into two classes, which it may perhaps be of some
use, in considering this subject, to distinguish by the names of primary
and secondary facts. The former, or primary
facts, are those plain and simple facts which are the objects of the senses,
and are generally proved by the positive testimony of witnesses; such as,
whether such a man gave such another a blow, or a wound with a sword, or
fired a pistol at him,
or |
 |
| 30 |
or whether such a one delivered a particular paper to such another; though
even these may sometimes be collected by inference from circumstances.
These things are so plainly matters of fact, that no sophistry in the world
can make them appear to nay body to be matters of law. But the latter,
or secondary facts, are facts of a more abstract or remote kind, and
may often be collected from the former by mere reasoning, without the help
of external testimony. Such is the intention of a man in breaking open
and entering a house by night; which, if it be to commit a felony, makes the
breaking and entering the house amount to the crime of burglary, which is
punished with death; but if it be to commit a trespass only (as, for
instance, to beat or frighten somebody in the house), makes it only a
misdemeanour, which is punishable by fine and imprisonment. And such
is the intention of a writer, in writing and publishing a paper against the
measures of government; which, if it be to raise a spirit of discontent in
the people against their governors, is criminal, and makes the writer and
publisher liable to punishment; but, if the paper is intended only as a
petition to the king, or any inferior
magistrate |
 |
| 31 |
praying him to desist from a measure by which the petitioner thinks himself
aggrieved, and it is delivered only to the person from whom the redress is
prayed, it is an innocent intention, and cannot make the act of publishing
the paper the object of punishment. In all these cases, the intention
of the party accused is a matter of fat, as well as the giving a blow, or a
wound with a sword, or firing the pistol, or breaking and entering the
house; and the writing and publishing the paper, though it is of a less
gross and obvious nature than those other facts, and less capable of being
proved by the positive testimony of witnesses, and sometimes can only
be collected from those other facts, by reasoning upon them; I say
sometimes, because, for the most part (as we have seen above), it will also
admit of confirmation and explanation by the testimony of witnesses.
These facts, therefore, from their being concomitant circumstances of the
former, or more simple facts, may, with some propriety, be called
secondary facts, if the former be called primary ones. And
this distinction may, perhaps, be useful to prevent these secondary facts
from being confounded with matters of law, with which they agree
only |
 |
| 32 |
only in this point, to wit, that some degree of reasoning is to be used in
discussing and investigating them both. But the difference between the
cases is this. The reasoning to be used in the investigation of
matters of law, is grounded on the knowledge of the law, and can only be
used by persons who are possessed of that knowledge; whereas, in the case of
these secondary facts, the reasoning to be used is grounded on common sense,
and a knowledge of the world, and the present transactions of it, and the
stories that are told of persons in active life, and in offices of great
rank and power; all which (as we before observed) are things that are often
better known to jurymen than to judges. And therefore we may conclude,
that if no evidence could be produced by witnesses, to confirm or disprove
these secondary facts, yet the jury would still have a right to judge of
them, and to infer them from the primary facts, by the exercise of their own
reason. But it almost always (or perhaps, absolutely always) happens,
that these secondary facts, though they may in some degree be inferred from
the primary facts by mere reasoning, yet may be also confirmed, or
controuled and disproved, by the positive testimony of witnesses; which
distinguishes them still more clearly from mat- ters |
 |
| 33 |
[mat-]ters of law (in determining which the testimony of witnesses is wholly
inadmissible), and proves them beyond a doubt, to be matters of fact, in the
lawsense of the phrase, or objects of the consideration and determination of
a jury, according to the fundamental position above laid down, to wit, that
such matters are proper objects of the consideration and determination of a
jury, as are capable of being proved or disproved by the evidence of
witnesses. I conclude, therefore, that both the intention of
the writer and publisher of a paper charged to be a seditious libel, and
the tendency of the paper to disturb the public peace, or produce the
other mischievous effects set forth in the information (which are secondary
facts in the sense herein before defined), are proper objects for the
consideration and determination of a jury, or, in the usual law-phrase,
matters of fact, as well as the actual writing and publication of it.
If this conclusion is just, the whole business
of a jury, upon the trial of an information for writing and publishing a
seditious libel, may be said, in few words, to be this: "To
inquire |
 |
| 34 |
inquire into the conduct of the person charged with having written and
published the paper in question, by the means of the evidence of witnesses,
and of such fair inferences as they, the jury, by their natural reason and
good sense, are able to derive from the said evidence; and, having thus
discovered what the conduct of the said defendant, with respect to the said
charge, has been, to compare it with the conduct imputed to him in the
information; and, if they find it to be the same with the conduct imputed to
him in the information in all points, to affirm the information, by finding
the defendant guilty of the charge in the manner and form set forth
in the information (for those are the words used in a verdict of
conviction); and, if they find his conduct, as proved by the evidence, to
fall short of the conduct imputed to him in the information, in any of the
four points above-mentioned, to deny the information, by finding the
defendant Not guilty of the charge in the manner and form set forth
in the information, which are the words used in a verdict of acquittal."
This seems to me to be an accurate and plain description of the
duty |
 |
| 35 |
duty of a jury on the trial of one of these informations.
When the jury have thus exercised their office of inquiring whether the
defendant's real conduct has been commensurate with the conduct imputed to
him in the information, and have determined that it has been so, by finding
him guilty of the charge in the manner and form set forth in the
information, there still remains another point to be considered before
judgment can be given against the defendant, which is, whether the offence
so charged and found by the jury is a public offence, or an object of legal
punishment. For, if it shall be made appear by just and legal
reasonings at the bar, that the writing and publishing the paper in
question, though it was done deliberately, and has the tendency ascribed to
it in the information, yet is not an offence of such great and public
consequence as to be an object of legal punishment, it will be the duty of
the court to forbear giving judgment against the defendant, and to dismiss
him with impunity, notwithstanding the verdict of conviction found against
him by the jury. But this I appre-
hend, |
 |
| 36 |
[appre-]hend, is a matter which the judges only have a right to determine,
either upon a motion made before them on the behalf of the defendant in
arrest of judgment, or of their own accord, without such a motion, if they
of their own accord come to be of opinion that the facts charged in the
information do not constitute a legal offence. For this is really and
truly a matter of law, and not a secondary fact, or inference from other
facts, nor a matter to which the testimony of witnesses is in any degree
applicable (like the intention of the writer, and the tendency of the paper,
and other such secondary facts as have been above mentioned), and therefore
is not a fit object of the consideration and determination of a jury.
An instance or two will make this matter very plain. It is certainly a
public and punishable offense to publish a paper tending to disgrace and
vilify the King upon the throne, and alienate the affections of his subjects
from his person and government, more especially if the imputations thrown
out against him are false. This was the offence committed by
Doctor Shebbeare in the reign of our late gracious Sovereign, George II.
for which, in the opinion of most people, he was deservedly punished.
But,
if |
 |
| 37 |
if the same abuse were now to be republished against the same good monarch,
it may be doubted whether the publisher of it would be an object of legal
punishment, though he would justly incur the censure, and excite the
indignation of all good men, that remembered the just and prudent
government, and respected the memory of our late Sovereign. For, as it
can no longer tend to produce the same bad effects as formerly, the monarch,
who was the object of it, being no longer among the living, it seems
unreasonable to suppose that it could be the object of that legal censure
which was grounded on its tendency to produce those bad effects. Yet
it might be said, on the other hand, that it still had a tendency to produce
some bad effects, though not the same as before, nor of so great
importance; and that, on account of its said tendency to produce these
lesser bad effects, it ought still to be the object of some, though a lesser
legal punishment. And to this it might be replied, on the behalf of
the re-publisher, that every act that in a small degree has a
tendency to produce some ill effect, ought not to be the object of a legal
punishment, and is not so by the law of England; -- that, for ex-
ample, |
 |
| 38 |
[ex-]ample, the most scurrilous words spoken (but not written), even of a
person now alive, are not the object of such punishment, but only of a civil
action; and many scurrilous words are not even the object of a civil action,
but only of a proceeding in the ecclesiastical court of the bishop of the
diocese, carried on pro salute anima, et correctione morum; -- that
only those actions are the objects of legal punishment in the temporal
courts, which have a tendency to produce some very pernicious public
consequences, and disturb the administration of the government; and that
this was not likely to be the effect of a re-publication of the abuse upon
our deceased sovereign; and consequently that such a re-publication was not
the object of legal punishment. Now in all this argument the testimony
of witnesses is evidently quite inadmissible; nor can mere reason, or common
sense determine on which side the truth lies; but it is plain, that this can
only be determined by the principles of the criminal law of England, and the
decisions of former judges, upon solemn arguments, in cases of the same
kind, or that are nearly similar to it, if such are to be found; and
therefore, it is truly a matter of law, and must be determined by judges
only. But
this |
 |
| 39 |
this does not at all interfere with the right that has been above ascribed
to the jury, of determining the truth of all the charges contained in the
information, or declaring whether, or no, the conduct of the defendant, as
proved by the witnesses, agrees, or is commensurate with the conduct imputed
to him in the information, with respect to all the allegations of which the
information is composed.
I have now gone through all I had to offer in
the way of reason and argument, concerning the extent of the province of the
jury, in the trial of an information for publishing a seditious libel.
I am sensible I have used a great number of words on this occasion, and even
some repetitions, which I knew not well how to avoid, and which, I therefore
hope, the reader will excuse; more especially as the reason of my treating
this matter so fully was, that he might clearly see the grounds upon which I
have presumed to differ in opinion from those learned and respectable
persons who have declared, that the intention of the publisher of a
seditious paper is a matter of law, which the jury have no right to
consider. The great respect due to those eminent persons, made me at
first almost afraid to
differ |
 |
| 40 |
differ from them, and excited me to examine the subject with as much care
and attention as I was capable of bestowing on it; in consequence of which,
I became perfectly convinced that their opinion was not well grounded.
And the same respect to their authority made me afterwards cautious of
expressing the opinion I had formed in opposition to that which they had
declared, without, at the same time, setting forth, in the fullest manner I
could, the reasons upon which I had presumed to differ from them, and adopt
the other opinion. And now, that I have ventured to state and maintain
that other opinion, I shall (from the same motive of respect to those great
persons) endeavour to confirm and support it by the authority of other great
persons who formerly held the same high offices of judicature with
themselves, opposing judge to judge, and chief justice to chief justice, in
at least equal numbers, and marshalling on my side of the argument,
Pares aquilas, et pilia minantia pilis;
lest the weight of these great modern authorities should be thought to
overbear the arguments, which, in the course of this enquiry,
have |
 |
| 41 [33] |
have been deduced from reason only, in favour of what I take to be the true
opinion upon the subject.
In the famous trial of the seven Bishops, who
were prosecuted in the last year of the reign of King James II by an
information in the Court of King's Bench, for publishing a seditious
libel, Sir Robert Sawyer (who had been Attorney General), Mr. Finch, and Mr.
Somers (who was afterwards Lord Chancellor), were of counsel for the
Bishops, and Sir Thomas Powys (the then Attorney General), and Sir William
Williams (the then Solicitor General), were of counsel for the Crown:
Sir Robert Sawyer contended, "That both the falsity of the paper, and "that
it was malicious and seditious, were all "matters of fact to be proved;" and
made this the first head of his speech to the jury; so that here we see,
that the falsehood of the paper, the malicious intention of the writer, and
the seditious tendency of the paper, are all asserted by this learned lawyer
to be matters of fact, and objects of the consideration of the jury.
His brother counsel held the same language. Mr. Finch expressed him-
self |
 |
| 42 [34] |
[him-]self thus: "If you, gentlemen, should think "that there is
evidence to prove the delivery, "by the Bishops, of the paper set forth in
"the information, yet, unless their present"-ing it to the King in private
may be said to "be a malicious and seditious libel, with an "intent to stir
up the people to sedition, and "to diminish the King's prerogative and au-"thority;
unless all this can be found, there "is no man living can find the Bishops
guilty "upon this information" This was asserting, that the ill
intention of stirring up discontents in the minds of the people against
the King, was an essential part of the charge, and one that the jury ought
to take into their consideration, and not leave to the judges as a mere
inference of law. Mr. Somers spoke next, and said, That "the paper
could not possibly "stir up sedition in the minds of the people, "because it
was presented to the King alone. "False it could not be, because the
matter of "it was true. There could be nothing of "malice: for
the occasion was not sought; the "thing was pressed upon them. And a
libel "it could not be, because the intent was inno-"cent." The
Attorney General, Powys, there-"on said, "That he should not now
meddle
"with |
 |
| 43 [35] |
"with what the defendants' counsel had of-"fered, because it was not
pertinent." And then Sir Robert Wright, the Chief Justice,
interposed with these remarkable words: "Yes, Mr. Attorney, I'll tell
you what they "offer, which it will lie upon you to give an "answer to; they
would have you shew how "this has disturbed the government, or di-"minished
the King's authority." Here then we have King James II's Chief Justice
of the King's Bench expressly declaring in this celebrated trial at bar,
that the tendency of the paper in question, to disturb the government, ought
to be made out to the satisfaction of the jury. Mr. Justice Powell
said, "The contrivance and publication are both "matters of fact, and, upon
issue joined, "the jurors are judges of the fact, as it is laid in
the information." Mr. Justice Holloway, after the evidence had been
summed up to the jury, spoke these words: "The "question is, whether
this petition be a libel "or no. Gentlemen, the end and intent
of "every action is to be considered; and likewise "in this
case we are to consider the nature "of the offence that these noble persons
are "charged with. It was for delivering a peti- "tion |
 |
| 44 [36] |
[peti-]"tion, which, according as they have made "their defence, was with
all humility and "decency that could be; so that, if there was "no ill
intent, and they were not men of evil "lives, or the like, to deliver a
petition can-"not be a fault, it being the right of the sub-"ject to
petition. If you are satisfied there "was an ill intention of
sedition, or the like, you ought to find them guilty: but, if
there "be nothing in the case of that kind, I think "it is no libel. It
is left to you, gentlemen; "but that is my opinion." The jury are
here expressly directed to consider, whether the Bishops had any intention
of sedition or not, in presenting their petition to the King, and to find
them guilty or not guilty accordingly. So far was this judge from
thinking, that the intention of the defendants was a mere inference of law,
which the jury had no authority to make. Mr. Justice Powell went
further still, and said, that the falsehood of the paper, as well as the
malicious intention of the publisher of it, and its tendency to disturb the
government, ought to be proved: by which we may observe, by the bye,
that the modern opinion, "That the false-"hood charged upon a libel in
an informa- "tion |
 |
| 45 [37] |
[informa-]"tion, is not a material part of the charge, "and needs not be
proved," was not at that time universally adopted by the judges. His
words are as follow: "Truly, I cannot see, "for my part, any
thing of sedition, or any "other crime, fixed upon these reverend "Fathers.
For, gentlemen, to make it a li-"bel, it must be false, it must be
malicious, "and it must tend to sedition. As to the "falsehood, I see
nothing that is offered by "the King's counsel, nor any thing as to the
"malice. Now, gentlemen, the matter of "it is before you; you are to
consider of it, "and it is worth your consideration, &c." Such were
the directions of Chief Justice Wright, and Justice Holloway, and Justice
Powell, at this famous trial; by which we see, that the intention of
the defendants in publishing the petition or paper, and the tendency of the
paper to raise discontents in the minds of the King's subjects against his
government, were so far from being considered by them as mere inferences of
law, which they, the judges, only had a right to make, that they were
recommended to the consideration of the jury, as the principal objects to
which it was necessary for them to attend.
And |
 |
| 46 [38] |
And Chief Justice Holt appears to have been of the same opinion, when he
summed up the evidence to the jury upon the trial of the information against
Tutchin, the writer and publisher of certain papers, called The
Observators, in the year 1704. His words, on that occasion, were
as follows: "Gentlemen "of the jury, this is an information for pub-"lishing
libels against the Queen and her go-"vernment." And then, after
stating the proof of the publication, and reading some passages from The
Observators, he goes on in this manner: "So that, now you have
heard "this evidence, you are to consider whether "you are satisfied that
Mr. Tutchin is guilty of writing, composing, and publishing these "libels.
They say they are innocent papers, "and that nothing is a libel but what
reflects "upon some particular person. But this is "a very strange
doctrine, to say it is not a "libel reflecting on government to endea-"vour
to possess the people, that the govern-"ment is male-administered by corrupt
per-"sons, that are employed in such and such "stations, either in the navy
or army. For "it is very necessary for all governments, "that the
people should have a good opinion
of |
 |
| 47 [39] |
"it: and nothing can be worse than to en-"deavour to procure any
animosities as to "the management of it. This has been al-"ways looked
upon as a crime; and no go-"vernment can be safe, without it be punish-"ed.
Now, you are to consider, whether those "words, I have read to you,
do not tend to "beget an ill opinion of the administration "of the
government." Here we find this able Chief Justice expressly directing
the jury to consider the tendency of the papers in question to wit,
Whether they do not tend to beget an ill opinion of the administration of
the government? How different is this conduct from asserting that this
tendency is a mere inference of law, which the judges only have a right to
make, without any concurrence of the jury? From these authorities,
together with the reason above set forth, I flatter myself that the reader
will join with me in concluding, that, upon the trial of an information for
writing and publishing a seditious paper, the jury have a right to determine
all the particulars of the charge, the malicious intention of the writer,
and the mischievous tendency of the paper, as well as the more simple facts
of the writing and publication of it, and the meaning of the blanks
and |
 |
| 48 [40] |
and feigned names in it; and that the only question which the judges are to
determine is, whether, if the whole information, with all the allegations
contained in it, the malicious intention of the writer, and the mischievous
tendency of the paper, be admitted by the defendant, or found by the jury to
be true, the conduct so described and found is an object of legal censure.
I could wish, that even this last particular were also to be determined by
the jury: but it rather, I must confess, appears to me to belong to
the province of the judges.
FINIS. |
 |
