Sivut kuvina

Here ended the evidence and pleading on Mr. Lee, the other counsel for the defendant, the side of the prosecution.

then got up, and began with observing, that

after the very learned and able speech made by Mr. Serjeant Glynn said, He agreed with Mr. Serjeant Glynn, little remained for bim to Mr. Attorney General as to the excellence of a say, but he particularly urged the jury to conLondon jury, and doubted not the liberties of sider the intention of ihe printer in publishing the people were sufficiently safe, while there it, and to remember how peculiarly necessary were trials by jury. He told the jury, that if it was, at this juncture, that the press should they were of' opinion, that the sense put upon be open to all political discussion. He defended Junius's Letter in the information, was the true the paper on the same principles as Mr. Glynn, sense; if it was clear, that it was a false, scan- and made a very eloquent and judicious hadalous, and seditious libel; if they thought bis rangue, concluding wiib declaring, that as no client published it with a professed intention, a intention cquld be proved, they ought not to premeditated design, of abusing and aspersing find his client guilty. ihe king ; if the defendant meant or wished to Mr. Attorney General affected a kind of alienate the affections of his majesty's subjects; surprise ; he said, the counsel for the defenif it appeared to them that his end in printing dant had stated points of law to the jury; that it was to stir up rebellion and commotion; as be believed he had a right to reply, notwithhonest men they ought, and undoubtedly standing they bad not examined witnesses ; would, bring his client in guilty: but-if, on and he believed so, he said, because they had the contrary, the temper of the times was such, stated points of law which he did not allow. that the people needed that kind of information Lord Mansfield told bim, that, as Attorney contained in the letter; if the facts could be General, he might reply, notwithstanding the proved ; if the acts of government, in which defendant had not examined witnesses : that the king, as a part of government, was neces the Solicitor General indeed, or any other sarily and virtually concerned, highly de- counsel, could not; but that the Attorney Gemanded public reprehension ; and the printer neral might. (See p. 762, and vol. 19, p. 1578.] published it with the truly laudable motive of Mr. Attorney General doubted about his informing bis fellow-subjects; if, so far froin right to reply ; said, however, he believed be containing any personal abuse of the king, it bad a right; but that he would not be partiwas written with an honest but guarded tree- cular, that he would not reply (ret all the dom; the author and publisher would, by all while he still kept making a reply, such as it worthy, all sensible men, be considered as hav- was) at length finished with saying, The bench ing acted the parts of good subjects, and good will reply on those points to the defendant's citizens. He informed the jury, that the counsel, and instruct the jury properly. counsel for the crown had not gone upon the subject matter of the Letter; they did not even

Mr. Attorney General was not mistaken in attempt to prove it a libel, notwithstanding the of what the bench would do and say: for lord

bis former belief, and in his latter declaration epithets bestowed upon it in the information; Mansfield then gave his charge in the jury and that the paper in which it was first printed, was not by any means set apart solely to can

according to Mr. Attorney General's anticipa

tion. vass for party or faction, but was equally open to all : he admitted, that private personal abuse Lord Munsfield told the jury,* that there was wrong, but the public acts of government often demanded public scrutiny; that many, * The following is the report of lord Mansvery many of the highest rank, as well as from field's direction to the jury, given in the prethe bighest to the lowest in the opposition, face to Mr. G. Woodfall's edition of Junius: had been scandalously traduced and vilified in “ Lord Mansfield, in his charge, told the the public papers with impunity; that if the jury, That there were only two points for their defendant was brought in guilty, the hands of consideration : the first the printing and pubevery publisher would be tied, and the gentle. lishing the paper in question ; the second, the men not in office might, by the ministerial sense and meaning of it: that as to the charges scribblers, be abused to the grossest degree, as of its being malicious, seditious, &c. they were it would be dangerous to answer them, if, upon inferences in law about which no evidence need the appearance of


free answer, informa- be given, any more than that part of an indicttions were to be filed, and the printers con ment need be proved by evidence, which victed and punished; the liberty of the press charges a man with being moved by the instiwas immediately concerned; the stroke was gation of the devil: that therefore the printing levelled at it in this prosecution: but he did and sense of the paper were alone what the not doubt the jury would maturely, deliberate jury had to coosider of; and that if the paper ly, and attentively consider the matter, read should really contain no breach of the law, over the Letter with care and circumspection; that was a matter wbich might afterwards be and if they found it was not written with intent moved in arrest of judgment: that he bad no to vilify the person of the king, but freely to evidence to sum up to them, as the defendant's canvass the acts of government, they would counsel admitted the printing aod publication consider the publisher as having done his fel to be well proved: that as to the sense, they low-subjects essential service, and acquit him. had not called in doubt the manner in which


were only two points on which they were the two points mentioned were the only things sworn to give their verdict: there were only for the consideration of the jury. That if there two points on which, according to their oath, was indeed nothing criminal in Junius's Letter, they must determine. That as for the inten- their verdict of guilty would do no barm, tion, the malice, sedition, or any other still would be attended with no consequences. The harder words which might be given in infor- Court would consider of that ; the Court were mations for libels, whether public or private, the only judges of that. If that is made apthey were mere formal words; mere words of pear to the Court, the Court will arrest judgcourse; mere inference of law, with which

He said, my brother Glynn bas adthe jury were not to concern themselves; that mitted that the truth or falshood of a libel, they were words which signify nothing i just whether public or private, howerer prosecuted, as when it is said in bills of indictment for is out of the question. murder, “instigated by the devil*,” &c. that

At this assertion of lord Mansfield

every the dashes in the paper were filled up in the man in court was shocked. Serjeant Glynn record, by giving any other sense to the pas was astonished, and, on application made to sages; if they had, the jury would have been him instantly by several of the counsel and bis to consider which application was tbe true one, friends, 10 contradict lord Mansfield's assertion, that charged in the information, or suggested Mr. Glynn, with ibat honest diffidence natural by the defendant. That the jury might now to him, asked them, “Good God! Did I adcompare the paper with the information : that mit any thing like what lord Mansfield says ? if they did not find the application wrong, they Did I, by any incorrectness in the expression, must find the defendant guilty ; and if they or by any mistake, use words that could be so did find it wrong, they must acquit him: that misunderstood or misinterpreted ?” Every this was not the time for alleviation or aggra gentleman near bim assured him that he had vation, that being for future consideration : ) not. Whereupon Serjeant Glynn rose, and that every subject was under the controul of very modestly assured his lordship that he had the law, and had a right to expect from it never admitted what bis lordship supposed.-protection for his person, his property, and his Lord Mansfield begged Mr. Glynn's pardon, good name: that if any man offended the laws, and turned it off with great dexterity, just sayhe was amenable to them, and was not to be iny slightly, “Oh! I find I was mistaken; censured or punished, but in a legal course : well then, my brother Glyon is of a different that any person libelled had a right either 10 opinion :" and then instantly proceeded :-As bring a civil or a criminal prosecution : that in you have been told these are the only two the latter, which is by information or indict points for your decision ; if, indeed, you think ment, it is immaterial whether the publication ihat the blanks in Junius's Letter can have be false or true: that it is no defence to say it another application than that put upon them is true, because it is a breach of the peace, and by the information, that is a matter for your therefore criminal; but in a civil prosecution, judgment; but you must observe, that even it is a defence to say the charges in the publi- the counsel for ihe defendant have not precation are true; because the plaintiff there tended to put any other meaning to the blanks. sues only for a pecuniary satisfaction to him. If you think the evidence for the publication self; and that this is the distinction as to that not sufficient, that is likewise a matter for your nature of defence. His lordship said, he was consideration; but you must observe, that afraid it was too true that few characters in even the counsel for the defendant have adthe kingdom escaped libels: that many were mitted the publication. Lord Mansfield then very injuriously treated-and if so, that the observed that the laws and proceedings iu rebest way to prevent it was by an application to gard to libels were perfectly equal, equally the law, which is open to every man: that the advantageous to high and to low:' for that the liberty of the press consisted in every man low might prosecute for a libel, if they were having the power to publish his sentiments defamed, as well as the rich, and would be without first applying for a licence to any one; sure to have justice done them by the law. He but if any man published what was against law, he did it at his peril, and was answerable sedition, and charging it to be a false, scanfor it in the same manner as he who suffers dalous, and seditious libel, were words of his hand to commit an assault, or his tongue course; like 'corrupt’in an indictment for perto ulter blasphemy.”

jury, or like those in an indictment for murder, * In the · Letter from Candour to the Public charging the murder to have been committed Advertiser,' it is mentioned, that in the trial of at the instigation of the devil, and that the jury the printers of the North Briton, No. 45, in ought not to regard them at all. The author 1764, lord Mansfield, in a very masterly man of the letter, after making this statement, and ner, interrupted the counsel, and informed comparing the language so ascribed to lord them, and afterwards in an elaborate discourse Mansfield with that of Jeffreys in the case of clearly instructed the jury, that the words in sır Sarnuel Barnardiston, see vol. 9, pp. 1349, the information, charging the paper to have 1351, 1355, reinarks upon the concurrence of been published with the most wicked intent, in the two chief justices not only in sentiment but order to excite bis majesty's dutiful subjects to in expression.


said, that it was not then the proper time for fendant, first observed slightly upon the absurd aggravation or alleviation, or consideration of motion for amendment, that was made on the the matter of the Letter, or of Mr. Woodfall's side of the crown, wbich, if carried, would still intention; to be sure the Court would consider require itself to be amended, or leave the all that, when they should come to pass sen- matter as much at large as ever ; since the tence. As for the liberty of the press, (said he) clerk must be thereby reduced to make another I will tell you what that is ; the liberty of the application to the Court, to be informed, what press is, that a man inay print what he pleases that legal import is : after this he proceeded in without a licenser : as long as it remains so, the following manner, taking up the argument the liberty of the press is not restrained. It is upon both the motions united : the same thing as in all other actions: a man My lords ; this is an information for a sedi. may use bis arm; but he must not strike his tious printing and publishing of a paper signed neighbour : a man may use bis tongue, but he Junius : the jury' have found Mr. Woodfall must not speak blasphemy.--At the word guilty of printing and publishing only.

blasphemy' so lugged in, there was a general 1. I shall first contend that this is an acwhisper ran through the Court: for every one quittal. The charge brought before the jury, perceived the aim of it, Mr. Wilkes sitting so is grounded upon the defendant's evil and sedivery near the Chief Justice.

tious design in publishing. The jury find the About twelve the jury withdrew. At half publishing only. This then is not convicting an hour after three lord Mansfield began to bim of the charge; which is, the seditious whisper with serj. Davy, who fiad been out of intention. It is first necessary to prove upon court and returned, with the Attorney General, the trial, the fact of publication ; Dext the conwith Mr. Wallace, and the other crowo lawyers. struction put upon the paper in the informaIn the space of a quarter of an hour he sent tion. These are the points which are to be three times to the jury to know if they were given in charge to the jury; and the jury not agreed in their verdict. He said he would must be convinced of both. By the general not sit longer than four, if the other business of word of guilty,' the jury find the whole the Court should be over. The jury not re- charge to be true. They bave not done so. turning, Jord Mansfield proposed to Mr. Lee They have found the fact of publication merethat he should sign an agreement with Mr. ly; but they have added negative words, to Attorney General, that the jury might give exclude every thing else.

To what the jury their verdict to lord Mansfield privately at lord do not say, there is by law a negative. But Mansfield's bouse. After some time and per here the jury bave themselves taken care, that suasion from lord Mansfield, Mr. Lee con- their silence shall not be misinterpreted. Had sented, and signed such agreement; after they been silent, whether the paper was a libel which lord Mansfield pulled off his hat, and or not, and not referred it to the opinion of the said, Mr. Lee, you have done right to consent. Court, their silence must have acquitted; but Lord Mansfield then adjourved the Court, and here they bave used the word only,' exretired. The jury continued undetermined till pressly to exclude every idea of a crime. near ten at night, when tbey agreed upon their If juries may be justly said to negative every verdict, and went in hackney coaches from thing they do not find, in a question of civil Guildhall 10 lord Mansfield's house in Blooms- property, much more must they be said to do bury-square, and gave their verdict in these so now, where the criminal motive makes the words: “Guilty of printing and publisbing offence they have in charge.

I do not say, only."

that a strict and literal proof must be brought Lord Mansfield stood at his parlour door, of every part of the information ; but I do say, and made the jury give their verdict in his ball that criminal intention is the essence of a crime, where the footmen were, and when they had and must enter into every idea of guilt. Of given it, he withdrew, without saying a word. this criminal intention the jury are the judges;

and if they exclude that, the defendant is acJuly 3, 1770.


To support a general verdict of guilty, it The King against Henry SAMPSON WOODFALL.

must appear that the jury believed the paper Since the verdict of the jury in this cause, libellous. Whether libellous or not depends two motions had been made, which were this only upon the construction put in the informaday brought to receive the decision of the tion. This construction they have excluded ; Court. The first was upon the part of the therefore, though they have not said in as crown, Why the verdict should not be entered many words, that the paper is not a libel, they up according to the legal import of the words* ; have negatived the libelling construction, and the other, Wby the defendant should not be said as much, in consequence by legal infedischarged from any judgment on this verdict. Where the subject matter before the Mr. Serjeant Glynn, of counsel with the de- jury are not mere legal words, or words of

legal import, it is, in my opinion, tbe province * The motion was thus worded at the special direction of lord Mansfield; who in these . So determined by all the judges in the causes is always of counsel with the crown.- Exchequer-chamber, Withers v. Iord Jersey.Lond. M[us.

Lond. Mus.


of a jury to find, whether they are criminal or the construction unknown, which must necesnot. Juries are judges both of law and fact; sarily be included in every verdict of guilty. I mean, as far as the former is involved in the But let what arguments there will be made latter. The jury therefore had a right to con for this new-modelling the verdict of the jury, sider ihe paper charged as a libel before them. there is one superior to all the rest against it; They might take it upon them if they pleased, which is, that the defendant would be thereby or they might resort to the judges for advice. precluded from taking the sense of a superior Here they have, hy their word of exclusion, court of review upon the verdict, as at present gone as far as to determine, that there is no formed. If the defendant is found guilty, why guilt in the paper ; whether they have deter is not the judgmeut entered as it is found, and mined wrong or right is another question. the sentence of the Court passed upon bim?

They may, on doubt, determine generally; It will then appear, by writ of error to the and where they so determine against the clear Lords, what this verdict was, by which he is proof of the fact, and letter of the law, (both of said to be convicted. But if this new-modelwhich constitute the crime) they determine at ling takes place, he will be for ever deprived of the peril of their conscience. Yet a matter this advantage*; which indeed is ihe only may be clearly libellous, and a man not incur reason I can suggest to myself for the attempt guilt by the mere publication. As in the case that is made to obtain it. For if it is a general of a friendly admonition from a father upon a verdict of guilty, I say again, it need not be supposed misconduct of his son ; or of giving entered otherwise than it is found. No case testimony in a court of justice; the same of can be produced, where the words of a general giving the character of a servant, and other verdict have been altered to make room for cases that might be mentioned. Here the in- other words. They would indeed be words tention becomes material, and properly inquir- different from the meaning of the jury: in able by a jury; thongh this is not capable short, if it is not a verdict of conviction, your of direct proof, it is, however, to be dis- lordship will not alter it to make it so ; and if covered by inference, of which the jury are it is, let it, as it must, be entered in tbe words the judges.

wherein it is found. 2. Upon the second lead, I am to contend, Mr. Lee on the same side. It is an absurd that if ihe verdict is uncertain or insufficient, and impossible idea, that the jury should conthere must be a new jury summoned to try the vict that man of a libel, whom they meant to cause afresh. If I am not authorised to say, acquit of a crime; and this meaning is plainly that the verdict amounts to an acquittal, I am demonstrated by the word of exclusion, which sure, they are as little authorised on the other they have introduced into tbeir verdict. The side to say, that it amounts to a conviction. If jary will never be said to have found such a the former interpretation is not satisfactory, the verdict, as shews their intention to find bim latter certainly cannot be so. If some other guilty of the charge laid in the information. sense is given to the word only' than what They meant, no doubt, to bave found him the I have put upon it, the whole becomes doubt prinier and publisher of the paper, as it apo and ambiguity; and a new trial must be had peared in the Public Advertiser, and not as by another jury. This canoot be taken other coupled with all those beavy charges and inwise than as a general verdict; and in general puendoes, as described in the information. verdicts, nothing is left to inference or intend There are strong cases in the law to prove, tbat ment. * “ You must have the understanding a partial finding is insufficient. Where a man of another man, hear with other's ears, and was cha with intrusion into a house and see with another's eyes, before you can know lands, and the jury only found the intrusion what a jury meant, upon what they have pot into the lands, the verdict was declared to be expressed." There is in the books the plainest wholly void. But in this case, let the finding case, where a direct inference must unavoida of the jury be what it will, it is impossible for bly be made from the finding of the jury; and the Court to alter it; for it is most decisively yet that not being expressed, the verdict was laid down, in books of the greatest authority, rejected as insufficient.+

that the Court cannot amend a general verdict The jury had found the damages to the

in a criminal matter. plaintiff, in the defendant's not keeping his

On the Part of the CROWN. promise, and yet, not baving found directly ihat he made such promise, the verdict was set Solicitor General (Mr. Thurlow). I know aside. If then we suppose the other side right no rule, or case in law, by which the silence of in saying, that the jury have found sufficiently to bring the guilt of the defendant before the * Because the alteration will not appear Court; it is at least saying so, without know upon the record ; and by some strange constiing what the jury meant, as to the construc tution in the jurisprudence of this country, no tion put upon the libel. Let them model it as court of review can take notice of the misconthey will, they cannot make it a general ver duct of judges in making such alterations. dict of guilty, without leaving their sense upon Lond. Mus. This, I suppose, alludes to

lord Mansfield's directing the informations * Vaugban, 75. Roll's Abr. 693.

against Wilkes to be amended, see vol. 19, p. + See vol. 19, p. 241.


+ 2 Leonard, 296.

a jury upon any fact, that should be made a have enquired into, was the application of this part of their verdict, must be construed to im- libel to the person, upon whom it is charged in ply the acquittal of any defendant. On the the information to have been made. I confess contrary, there is authoriiy in the law upon the that the matter here charged would not be livery case of a libel, where a partial finding of bellous, if it affected any body else than the the jury was held sufficient. A charge was king. The jury have found the fact of printbrought for the writing, collecting, and print. ing and publishing only; and that was the ing a number of ballads, and thereby forming only thing they had to find. For what is the a libel

upon the king. The jury found the de- crime charged? It is the printing and publishfendant guilty only of the printing ; and this ing the matter, and things contained in the inverdict was allowed to be good upon the issue. formation. Upon which the jury seem to me Wherever the jury shall have omitted a matter to have said, that he is only guilty of printing of fact, the Court will not intend that fact; and publishing the paper charged in the inforneither will they conclude the defendant inno- mation (for that is all we have to add); and cent, because the jury have not said that he is this is the same as if they found him guilty so; but they will then order a new jury to come generally. and try the cause again.

Mr. Wallace. The verdict is full, and reIf it is said that the jury meant to exclude quires no intendment. The charge is for printa conclusion of law, that were monstrous. To ing and publishing a libel; the defendant says say

that the jury found the fact of publishing be is not guilty of the charge: the jury, being the paper, as charged in the information, but asked, they say he is guilty; that is, only of that they denied the interpretation of the law printing and publishing; which is the same upon it, were bringing them wholly out of their thing as finding him guilty generally. province; for they are only judges of fact, and It would have been material if the jury bad with the law they have nothing to do. If the excluded in this verdict the allusions made from jury are said to have found the publication of the paper in question to the libel in the inforsome other paper than that as charged in the mation. As to the objection, that they have information, it is saying that they have found not found the intention, that will avail as little a fact, which they are not charged to enquire now as it did before in the case of the King into. This were inaking them to have done and Beare. * It was objected there also, that more absurdly than they have; and what they the jury had only found part of the charge, have manifestly no right to do. Their words and that so much as they found did not iofer must necessarily be referred to something; but any illegal act; for that there are cases in why substitute a subject out of the information ? which it may be lawful to write a libel, as for For if they have found that the defendant only a clerk drawing an indictment, or a student printed and published the libel charged in the taking notes in court: but the Chief Justice information, they have found what will ever be said, their finding such a fact in the case of au enough to convict. The jury cannot prevent information must necessarily infer a crime. the judgment of law from passing upon the Mr. Dunning. Verdicts are not to be enfacts, which men are found to bave committed. tered in any case in the precise words the jury

The jury are to inquire into a fact as charged give them; nor are they so. Something is in the information ; and the short answer they always to be added. Had the word only' give in the words guilty or not guilty, must be been omitted, there is no doubt the verdict in referred to that particular charge; otherwise this case would have been competent; for the they say nothing

clerk would have added, the matters charged It is not necessary for me to contend, that in the information.' Let those words be still any facts sball be supplied by innuendo in the added, and the insertion of the word only' will finding of a jury; but if the jury meant to ex- make no difference. clude a conclusion of law, I dare say your lord- All the books agree, that the jury may, in ships will oot attend to it; for when a jury has these instances, take the law and fact together, found sufficient facts to support some verdict and give a general verdict. This I know bas in the cause, they cannot go further, and find been disputed; but whether disputable or Dot, a wrong conclusion of law. W ben the jury is another matter. However it has not yet bare found sufficient matter of fact, your lord- been insisted, that juries ought to take this ships will supply the matter of law; as was upon them; nor will I intimate my own opidetermined in the case of lord Paget; where, nion upon it. in the question of a fraudulent conveyance, the Jo this case at least the jury have not taken jury having found sufficient special matter, the upon them to decide the law. "They have said, Court inferred the conclusion of law, that the that the defendant is guilty of printing and conveyance was fraudulent, though the jury publishing a certain paper; but whether there bad not expressly found the fraud.* However, is any guilt in that, or what degree of guilt, in this case, the jury have expressly found they do not chuse to determine; they leave some guilt ; and it is now become the province of this couri, to say what that guilt amounts to. * See this case considered much at large in Mr. Morton. The subject for the jury to • Another Letter to Mr. Almon." The case is

reported in Lord Raymood, Cartbew, 12 Mod. * Moure, 194. Dyer, 362.


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