the motion of the Crown lawyers, must be discharged.

been a matter of compact, executed by a rule of Court; but that in all other respects, except that the one party was, after the statute, bound to agree to a special jury, if the other proposed it, the consequences were the same.

The disobedience to the rule remained a contempt, and the rule remained valid, unless the Court, for particular cause of corruption, or undue interference, properly verified, should see ground to have another jury; but that otherwise, the jury of compact or statute must continue.

This was the more material, because of the Attorney General's power to refuse the Defendant a warrant to have a tales, to make up the special jury, if deficient, and of the common jury; which was so far from being an idle right, as mentioned by Mr. Bearcroft, that there was a case in which it was solemnly agitated, and which formed a ground of decision that the Attorney could and ought, in certain cases, to exercise the right. The King v. Jacob Banks, Sixth Modern Reports, p. 246, as follows:

And as to another objection that was made," that such a course, "if tolerated, would be of great mischief; for then most profli"gate offenders would get themselves acquitted by surprise, or "over-hastening the trial, without allowing the Queen convenient "time to manage her prosecution:"

It was answered, "that there could be none, because in Crown "causes there cannot be nisi prius or tales, without a warrant "from the Attorney General, who shall be sure to grant none if he "find any such danger." And that such a thing may be at least by consent appears 1 Keb. 195. Rex v. Jones. And the granting a nisi prius amounts to a consent.

On the 9th of December 1793, the cause having been called on for trial, Mr. ATTORNEY GENERAL opened the case for the Crown as follows:

GENTLEMEN OF THE JURY,

THE Information charges the Defendants with having printed and published a seditious libel, the contents of which you have now heard stated. The Information originally was not filed by me, but by my predecessor in office, who then was, as you now are, sworn to discharge an important duty to the public, according to the best of his judgment. It has since fallen to my lot to execute that duty, in stating to you the grounds upon which this Information has been filed. And I have no difficulty in saying, that, previous to my coming forward for this purpose, I thought it incumbent upon me to consider, whether, in the office which I now hold, I should, of my own accord, have instituted this prosecution; because I thought that it became me not merely to follow up the measures of that highly respectable character, and to bring his opinion before a Jury, but to be able, in so doing, to say that I approved of those measures, and concurred in that opinion; and to act exactly as he had done, according to the best of my judgment, for the public. Had I been clearly of opinion that this paper was not fit for the consideration of a Jury, I have no hesitation in confessing that I should certainly have discontinued the prosecution. You, Gentlemen of the Jury, I am

sure, will do me the justice to believe that I am not capable of the impertinence of saying, that because I may think this paper fit for prosecution, and may think the Defendants guilty, you therefore must think so too. The prosecution does nothing more than declare, that the paper is a proper subject for the discussion of a Jury, and as such, that I consider myself as bound to bring it forward in the course of my professional duty. With respect to the guilt or innocence of the Defendants in publishing this paper, that question which falls to your consideration, I am perfectly satisfied to leave to your decision. This is a cause of the highest importance, as, indeed, every cause which involves a criminal charge must be important, but this more particularly so from the nature of the charge. It is connected with the press, which has ever been deemed the great palladium of British freedom. In every case in which it is concerned, it is natural, therefore, that the most watchful attention of Englishmen should be excited. It is of great consequence, then, in the first instance, to ascertain what properly constitutes the liberty of the press; what are its bounds, and how far it extends;— and on this subject I shall take the liberty of reading to you the sentiments of a character of the highest legal authority, namely, the late Mr. Justice Black

stone.

"In this and the other instances which we have lately considered, where blasphemous, immoral, "treasonable, schismatical, seditious, or scandalous

60

"libels are punished by the English law, some with "a greater, others with a less degree of severity, the "liberty of the press, properly understood, is by no "means infringed or violated. The liberty of the press is indeed essential to the nature of a free "state; but this consists in laying no previous re"straints upon publications, and not in freedom "from censure for criminal matter, when published. 66 Every freeman has an undoubted right to lay what "sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he "publishes what is improper, mischievous, or illegal, " he must take the consequence of his own temerity. "To subject the press to the restrictive power of a "licenser as was formerly done, both before and "since the Revolution, is to subject all freedom of "sentiment to the prejudices of one man, and make "him the arbitrary and infallible judge of all contro"verted points in learning, religion, and govern"ment; but to punish (as the law does at present) 66 any dangerous or offensive writings, which, when

66

published, shall, on a fair and impartial trial, be 66 adjudged of a pernicious tendency, is necessary "for the preservation of peace and good order, of government and religion, the only solid founda"tions of civil liberty. Thus the will of individuals "is still left free; the abuse only of that free will is "the object of legal punishment. Neither is any "restraint hereby laid upon freedom of thought "or inquiry; liberty of private sentiment is still left;, "the disseminating or making public of bad senti

"ments, destructive of the ends of society, is the "crime which society corrects. A man (says a fine "writer on this subject) may be allowed to keep 'poisons in his closet, but not publicly to vend "them as cordials. And to this we may add, that "the only plausible argument heretofore used for "the restraining the just freedom of the press, that "it was necessary to prevent the daily abuse of it,' "will entirely lose its force, when it is shown (by a "seasonable exertion of the laws) that the press "cannot be abused to any bad purpose, without in"curring a suitable punishment; whereas it never "can be used to any good one, when under the "control of an inspector. So true will it be found, "that to censure the licentiousness, is to maintain "the liberty of the press *."

These principles of the law of England, thus laid down by this great man, must be admitted to be incontrovertible. The law allowed Defendants in this, as in every other case, a fair impartial trial, upon the result of which they were to be adjudged guilty or acquitted of the charge exhibited against them; and this principle has been explained by the last act of Parliament, for removing doubts of the functions of juries in cases of libel; the meaning of which act I take to be, that the jury shall try these charges of libels precisely as they try any other charge of a criminal nature;-that they shall hear the case with

* Blackstone's Commentaries, vol. iv. page 151, Sro. edi tion, 1791.