sufficient in itself, was admissible to be thrown into the scale. But not only no part of this was left to the Jury, but the whole of it was expressly removed from their consideration; although in the cases of Woodfall and Aimon, it was as expressly laid down to be within their cognizance; and a complete answer to the charge, if satisfactory to the minds of the Jurors.

In support of the learned Judge's Charge, there can be therefore but two arguments :-either that the Defendant's evidence, namely, the advertisement ;-Mr. Jones's evidence, in confirmation of its having been published bona fide ;-and the evidence to character to strengthen that construction, were not sufficient proof that the Dean believed the publication meritorious, and published it in vindication of his honest intentions or else, that, even admitting it to establish that fact, it did not amount to such an exculpation as to be evidence on not guilty, so as to warrant a verdict.-I give the learned Judge his choice of the alternative.

As to the first, viz. Whether it showed honest intention in point of fact; that surely was a question for the Jury. If the learned Judge had thought it was not sufficient evidence to warrant the Jury's believing that the Dean's motives were such as he had declared them, he should have given his opinion of it as a point of evidence, and left it there. I cannot condescend to go farther; it would be ridiculous to argue a self-evident proposition.

As to the second, That even if the Jury had believed from the evidence, that the Dean's intention was wholly innocent, it did not amount to an excuse, and therefore should not have been left to them. Does the learned Judge mean to say, that if the Jury had declared, "We find that the Dean pub"lished this pamphlet, whether a libel or not we do not find; "and we find farther, that believing it in his conscience to "be meritorious and innocent, he, bona fide, published it "with the prefixed advertisement, as a vindication of his "character from the seditious intentions, and not to excite "sedition:" does the Judge mean to say, that on such a special verdict he could have pronounced a criminal judgment?-If, on making the report, he says yes, I shall have leave to argue it.

If he says No, then why was the consideration of that evidence, by which those facts might have been found, withdrawn from the Jury, even after they had brought in a verdict, guilty of publishing ONLY, which, in the case of the King against Woodfall, was only said not to negative the

criminal intention, because that defendant had called no witnesses? Why did he confine his inquiries to the innuendos? and finding the Jury agreed upon them, why did he declare them to be bound to affix the epithet of Guilty, without asking them if they believed the Defendant's evidence to rebut the criminal inference? Some of the Jury meant to negative the criminal inference, by adding the word only, and all would have done it, if they had thought themselves at liberty to enter upon the evidence of the advertisement. But they were told expressly that they had nothing to do with the consideration of that evidence, which, if believed, would have warranted that verdict. The conclusion is evident ;-If they had a right to consider it, and their consideration might have produced such a verdict, and if such a verdict would have been an acquittal, it must be a misdirection.

It seems to me therefore, that, to support the learned Judge's directions, the very cases relied on in support of them must be abandoned; since, even upon their authority, the criminal intention, though a legal inference from the fact of publishing, in the absence of proof from the Defendant, becomes a question of fact, when he offers proof in exculpation to the Jury ;-the foundation of my motion therefore is clear.

I first deny the authority of these modern cases, and rely upon the rights of Juries, as established by the ancient law and custom of England, and hold that the Judge's Charge confines that right, and its exercise, though not the power in the Jury to find a general verdict of acquittal.

I assert farther, that, whatever were the Judge's intentions, the Jury could not but collect that restriction from his Charge; that all free agency was therefore destroyed in them, from respect to authority, in opposition to reason;-and that therefore the Defendant has had no trial which this court can possibly sanction by supporting the verdict. But if the Court should be resolved to support its own late determinations, I must content myself even with their protection; they are certainly not the shield with which, in a contest for freedom, I should wish to combat, but they are sufficient for my protection it is impossible to reconcile the learned Judge's directions with any of them.

My Lord, I shall detain the Court no longer at present.The people of England are deeply interested in this great question; and though they are not insensible to that interest, yet they do not feel it in its real extent. The dangerous consequences of the doctrines established on the subject of libel

are obscured from the eyes of many, from their not feeling the immediate effects of them in daily oppression and injustice :—but that security is temporary and fallacious; it depends upon the convenience of Government for the time being, which may not be interested in the sacrifice of individuals, and in the temper of the magistrate who administers the criminal law, as the head of this Court. I am one of those who could almost lull myself by these reflections from the apprehension of immediate mischief, even from the law of libel laid down by your Lordship, if you were always to continue to administer it yourself. I should feel a protection in the gentleness of your character; in the love of justice which its own intrinsic excellence forces upon a mind enlightened by science, and enlarged by liberal education, and in that dignity of disposition which grows with the growth of an illustrious reputation, and becomes a sort of pledge to the public for security: but such a security is as a shadow which passeth away; you cannot, my Lord, be immortal, and how can you answer for your successor? if you maintain the doctrines which I seek to overturn, you render yourself responsible for all the abuses that may follow from them to our latest posterity.

My Lord, whatever may become of the liberties of England, it shall never be said that they perished without resis tance, when under my protection.

On this motion the Court granted a rule to show cause why there should not be a new trial-and cause was accordingly shown by the Counsel for the Crown on the 15th of November following; their arguments were taken in short-hand by Mr. Blanchard, but were never published;-they relied, however, altogether upon the authorities cited by Mr. Justice Buller, in his Charge to the Jury, and upon the uniform practice of the Court of King's Bench, for more than fifty years. The following Speech, in support of the new trial, which was taken at the same time by Mr. Blanchard, was soon after published by Mr. Erskine's authority, in order to attract the attention of the public to the Libel Bill, which Mr. Fox was then preparing for the consideration of Parliament.

ARGUMENT in the King's Bench, in support of the Rights of Juries. By the Honourable THOMAS ERSKINE.

I AM now to have the honour to address myself to your Lordship in support of the rule granted to me by the Court upon Monday last; which, as Mr. Bearcroft has truly said, and seemed to mark the observation with peculiar emphasis, is a rule for a new trial. Much of my argument, according to his notion points another way; whether its direction be true, or its force adequate to the object, it is now my business to show.

In rising to speak at this time, I feel all the advantage conferred by the reply over those whose arguments are to be answered; but I feel a disadvantage likewise which must suggest itself to every intelligent mind. In following the objections of so many learned persons, offered under different arrangements upon a subject so complicated and comprehensive, there is much danger of being drawn from that method and order, which can alone fasten conviction upon unwilling minds, or drive them from the shelter which ingenuity never fails to find in the labyrinth of a desultory discourse.

The sense of that danger, and my own inability to struggle against it, led me originally to deliver to the Court certain written and maturely considered propositions, from the establishment of which I resolved not to depart, nor to be removed, either in substance or in order, in any stage of the proceedings, and by which I must therefore this day unquestionably stand or fall.

Pursuing this system I am vulnerable two ways, and in two ways only. Either it must be shown that my propositions are not valid in law; or, admitting their validity, that the learned Judge's Charge to the Jury at Shrewsbury was not repugnant to them: there can be no other possible objections to my application for a new trial. My duty to-day is therefore obvious and simple; it is, first, to re-maintain those propositions; and then to show, that the Charge delivered to the Jury at Shrewsbury was founded upon the absolute denial and reprobation of them.

I begin, therefore, by saying again in my own original

words, that when a bill of indictment is found, or an information filed, charging any crime or misdemeanor known to the law of England, and the party accused puts himself upon the country by pleading the general issue,-Not guilty;-the Jury are GENERALLY charged with his deliverance from that CRIME, and not SPECIALLY from the fact or facts, in the commission of which the indictment or information charges the crime to consist; much less from any single fact, to the exclusion of others charged upon the same record.

Secondly, that no act, which the law in its general theory holds to be criminal, constitutes in itself a crime, abstracted from the mischievous intention of the actor. And that the intention, even where it becomes a simple inference of legal reason from a fact or facts established, may and ought to be collected by the Jury, with the Judge's assistance. Because the act charged, though established as a fact in a trial on the general issue, does not necessarily and unavoidably establish the criminal intention by any ABSTRACT conclusion of law: the establishment of the fact being still no more than full evidence of the crime, but not the crime itself; unless the Jury render it so themselves, by referring it voluntarily to the Court by special verdict.

These two propositions, though worded with cautious precision, and in technical language, to prevent the subtlety of legal disputation in opposition to the plain understanding of the world, neither do nor were intended to convey any other sentiment than this: viz. that in all cases where the law either directs or permits a person accused of a crime to throw himself upon a Jury for deliverance, by pleading generally that he is not guilty; the Jury, thus legally appealed to, may deliver him from the accusation by a general verdict of acquittal founded (as in common sense it evidently must be) upon an investigation as general and comprehensive as the charge itself from which it is a general deliverance.

Having said this, I freely confess to the Court, that I am much at a loss for any farther illustration of my subject; because I cannot find any matter by which it might be farther illustrated, so clear, or so indisputable, either in fact or in law, as the very proposition itself which upon this trial has been brought into question. Looking back upon the ancient constitution, and examining with painful research the original jurisdictions of the country, I am utterly at a loss to imagine from what sources these novel limitations of the rights of Juries are derived. Even the Bar is not yet trained to the discipline of maintaining them. My learned friend Mr. VOL. I.

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