are marked out with clearness and precision, and the administration of justice is impartially executed, we may expect to find the population virtuous, happy, and independent but laws which are vague, uncertain, and obscure, by throwing into the hands of the judges a discretionary power, are pregnant with mischief to the commonwealth, To this danger the law of libel is peculiarly exposed.

Crown lawyers, experienced in the sophistries of their profession, and allured by the glittering bribes of court patronage, have been too apt of late years to exhaust their ingenuity, in construing every doubtful statute, in a manner favourable to the extension of the prerogative; and obsequious judges, regardless of the dignity of their station, have thrown aside the restraints of judicial decorum, and sanctioned by their decisions, doctrines diametrically opposed to the enlightened liberality of the age. During the recent prosecutions for religious opinion, the conduct of at least one of the judges during the trials, and the severity of punishment inflicted on the defendant, proved, beyond all doubt, the homage that was paid to the Treasury; and since the dictum of a judge, after a lapse of time, acquires equal weight and importance with the positive enactments of the legislature, it is in

cumbent on every man who values the freedom of public discussion, to enter his protest against the unconstitutional opinions lately announced from the Bench. "One pre

cedent creates another, they soon accumulate and become law. What yesterday was fact, to day is doctrine. Examples are supposed to justify the most dangerous measures, and when they do not exactly suit, the defect is supplied by analogy. Be assured that the laws which protect us in our civil rights, grow out of the constitution, and that they must fall or flourish with it-this is not the cause of faction, or of party, or of any individual, but the common interest of every man in Britain."*

Junius,

:

ON

CHAPTER I.

THE LEGALITY OF PROSECUTIONS FOR

RELIGIOUS OPINION.

Ir is proposed to inquire, first, into the legality; and secondly, into the expediency of prosecutions for religious opinion. The decision of the Court of King's Bench, which declares christianity to be part and parcel of the law of the land, rests on the dictum of Sir Matthew Hale, in the case of Rex v. Taylor, tried in the 27th of Charles the Second.

The laws of England are, by the most esteemed writers, classed under the two grand divisions of leges scripta, and leges non scriptæ, the written, and unwritten law; the former comprehending the statutes or acts of Parliament, the latter embracing general customs, which are the universal rule of the whole kingdom, and particular customs, which are adopted by particular courts, and confined to particular districts. The written law, senatus decreta, are sanctioned by the solemn and deliberate act of the legislature; and the unwrit

ten or common law depends on immemorial usage, from time to time declared in the decisions of the courts of justice. Judge Law, as it is emphatically called, consists of the dicta of those who preside on the bench, and is always to be discouraged, and received with the greatest caution. To this last fruitful source of absurdity and oppression, is to be ascribed the present law of libel; a law so confused and complicated, that, although frequent attempts have been made by the most experienced and ingenious lawyers to render it intelligible, every explanation has proved unavailing.

According to the law of England, a libel is a malicious defamation, either in writing, or printing, or by signs, pictures, &c. tending either to blacken the memory of one who is dead, with intent to provoke the living, or the reputation of one who is living, and thereby exposing him to public hatred, contempt and ridicule. In Barrington's Observations on the Ancient Statutes, the origin of the law of libel is fully narrated; and as it is extremely interesting, we shall give it at length. After observing that scandal and defamation must, at the time he writes of, have been chiefly propagated by conversation, as few could write, and still fewer could read, he proceeds in the following manner:

"The ingenious and Rev. Dr. Percy, in his curious collection of Ancient Ballads, has given us a satire upon Ricard, King of the Romans, and brother to Henry the Third, which was written by one of the adherents of Simon de Montford, Earl of Leicester. This ballad, Dr. Percy says, affords a curious specimen of the liberty assumed by the good people of this land, of abusing their kings and princes at pleasure. As the ballad by a circumstance is fixed to have been written A.D. 1265, which was but seven years before the passing of the present statute, it is not improbable that it might have occasioned this part of the law. Be this as it may, we do not find much in the year books, or other old reporters, with regard to the offence, till the great case entitled, de libellis famosis, which is the foundation of what hath since been considered as law with respect to libel, and which was determined in the third year of the reign of James the First, by which time printing began to be tolerably cheap.

"As every thing which relates to the publication of what may be deemed a libel, is of so interesting a nature to the liberty of the subject (ever so closely connected with the liberty of the press) I hope I may be indulged in some observations upon the doctrine deli