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Right of Jury to judge of

the offence of libel, denied.

Woodfall's trial, June

The second doctrine was wholly subversive of the rights of juries, in cases of libel. Already, on the trial of the printers of the "North Briton," Lord Mansfield had laid it down that it was the province of the court alone to judge of the criminality of a libel. This doctrine, however questionable, was not without authority1; and was now enforced with startling clearness by his lordship. The only material issue for the jury to try, was whether the paper was libellous or not; and this was emphatically declared to be entirely beyond their jurisdiction. Trial by jury was the sole security for the freedom of the press; and it was found to have no place in the law of England.

Again, on the trial of Woodfall, his lordship told the 13th, 1770. jury that, "as for the intention, the malice, the sedition, or any other harder words which might be given in informations for libels, public or private, they were merely formal words, mere words of course, mere inferences of law, with which the jury were not to concern themselves." The jury, however, learning that the offence which they were trying was to be withdrawn from their cognisance, adroitly hit the palpable blot of such a doctrine, by finding Woodfall "guilty of printing and publishing only." In vain was it contended, on the part of the crown, that this verdict should be amended, and Nov. 20th, entered as a general verdict of guilty. The court held the verdict to be uncertain, and that there must be a new trial. Miller, the printer and publisher of the 18th, 1770. "Evening Post," was next tried, at Guildhall. To avert such a verdict as that in Woodfall's case, Lord Mans

1770.

Miller's

trial, July

1 Lord Raymond in Franklin's Case, 1731; Ch. Justice Lee in Owen's case, 1752.-St. Tr., xvii. 1243; xviii. 1203; Parl. Hist., xvi.

1275.

2 Burr., 2686; State Tr., xx. 803. 3 State Tr., xx. 895.

field, in language still stronger and more distinct, laid it down, that the jury must not concern themselves with the character of the paper charged as criminal, but merely with the fact of its publication, and the meaning of some few words not in the least doubtful. In other words, the prisoner was tried for his offence by the judge, and not by the jury. In this case, however, the jury boldly took the matter into their own hands, and returned a verdict of not guilty.1

doctrines.

Other printers were also tried for the publication of Disapproval of this same letter of Junius, and acquitted. Lord Mansfield Lord had, in fact, overshot the mark; and his dangerous doc- Mansfield's trines recoiled upon himself.2 Such startling restrictions upon the natural rights of a jury excited general alarm and disapprobation.3 They were impugned in several able letters and pamphlets; and above all, in the terrible letter of Junius to Lord Mansfield himself. It was clear that they were fatal to the liberty of the press. Writers, prosecuted by an officer of the crown, without the investigation of a grand jury, and denied even a trial by their peers, were placed beyond the pale of the law.

ment.

Phipps'

These trials also became the subject of animadversion Debates in Parliament. On a motion of Captain Constantine in Parlia Phipps, for a bill to restrain ex-officio informations, grave Captain opinions were expressed upon the invasion of the rights motion, of juries, and the criminal responsibility of a publisher 1770. for the acts of his servants. Lord Mansfield's doctrines were questioned by Mr. Cornwall, Mr. Serjeant Glynn, Mr. Burke, Mr. Dunning, and Sir W. Meredith5; and

50.

1 State Tr., xx. 870.

2 Walp. Mem., iv. 160, 168.
3 See Lord Chatham's Corr., iv.

4 Nov. 14th, 1770; Letter No. 41, Woodfall's Ed., ii. 159.

Mr. Wedderburn also spoke against ex-officio informations.

Nov. 27th,

Lord

Dec. 5th, 1770.

defended by Mr. Attorney-General De Grey, and Mr. Solicitor-General Thurlow.'

Lord Chatham, in the House of Lords, assailed Lord Chatham, Mansfield for his directions to juries in the recent libel cases. Lord Mansfield justified them, and Lord Camden desired that they should be fully stated, in order that the House might judge of their legality.2

Mr. Ser

jeant Glynn's motion,

1770.

This debate was followed, in the Commons, by a motion of Mr. Serjeant Glynn for a committee, to inDec. 6th, quire into the administration of criminal justice, particularly in cases relating to the liberty of the press, and the constitutional power and duty of juries. The same controverted questions were again discussed; and such was the feeling of the House, that the motion was lost by a majority of eight only. In this debate, Mr. Charles Fox gave little promise of his future exertions to improve the law of libel. He asked, where was the proof, "that juries are deprived of their constitutional rights?" "The abettors of the motion," he said, "refer us to their own libellous remonstrances, and to those infamous lampoons and satires which they have taken care to write and circulate."

Lord Mansfield produces

ment in

case.

The day after this debate, Lord Mansfield desired that the Lords might be summoned on the 10th of Decemthe judgber, as he had a communication to make to their LordWoodfall's ships. On that day, however, instead of submitting a motion, or making a statement to the House, he merely informed their Lordships that he had left with the clerk of the House a copy of the judgment of the Court of King's Bench, in Woodfall's case, which their Lordships might read, and take copies of, if they pleased. This,

1 Parl. Hist., xvi. 1127, 1175

(two reports).

2 Parl. Hist., xvi. 1302.

3

Ayes, 176; Noes, 184; Parl. Hist., xvi. 1211; Cavendish Deb., ii. 89; Walp. Mem., iv. 211.

however, was enough to invite discussion; and on the following day, Lord Camden accepted this paper as a challenge directed personally to himself. "He has thrown down the glove," he said, "and I take it up. In direct contradiction to him, I maintain that his doctrine is not the law of England." He then proposed six questions to Lord Mansfield upon the subject. His lordship, in great distress and confusion, said, "he would not answer interrogatories," but that the matter should be discussed. No time, however, was fixed for this discussion; and notwithstanding the warmth of the combatants, it was not resumed.

Dowdes

March 7th,

So grave a constitutional wrong, however, could not Mr. be suffered without further remonstrances. Mr. Dowdeswell's well moved for a bill to settle doubts concerning the motion, rights of jurors in prosecutions for libels, which formed 1771. the basis of that brought in, twenty years later, by Mr. Fox.2 The motion was seconded by Sir G. Savile, and supported by Mr. Burke, in a masterly speech, in which he showed, that if the criminality of a libel were properly excluded from the cognisance of a jury,-then should the malice in charges of murder, and the felonious intent in charges of stealing, be equally removed from their jurisdiction, and confided to the judge. If such a doctrine were permitted to encroach upon our laws, juries would "become a dead letter in our constitution." The motion was defeated on a question of adjournment. All the Whig leaders were sensible of the danger of leaving public writers at the mercy of the courts; and Lord Rockingham, writing to Mr.

1 Parl. Hist., xvi. 1321; Preface to Woodfall's Junius, i. 49; Letter No. 82, Junius; Woodfall's Ed., iii. 295; Walpole's Mem., iv. 220; Lord Campbell's Lives of the Chan

cellors, v. 295.

2 Rockingham Mem., ii. 198.
3 218 to 72; Parl. Hist., xvii. 43;
Burke's Works, x. 109; Ed. 1812.

Mr. Er

skine supports the

rights of Juries.

Case of

Dean of

1779.

"1

Dowdeswell, said, " he who would really assist in re-establishing and confirming the right in juries to judge of both law and fact, would be the best friend to posterity.' This work, however, was not yet to be accomplished for many years; and the law of libel continued to be administered by the courts, according to the doctrine which Parliament had hitherto shrunk from condemning. But the rights of juries continued to be inflexibly maintained in the courts, by the eloquence and noble courage of Mr. Erskine. The exertions of that consummate advocate in defence of the Dean of St. Asaph, St. Asaph. are memorable in forensic history. At various stages of the proceedings, in this case, he vindicated the right of the jury to judge of the criminality of the libel; Nov. 15th, and in arguing for a new trial, delivered a speech, which Mr. Fox repeatedly declared to be "the finest argument in the English language."3 He maintained "that the defendant had had, in fact, no trial; having been found guilty without any investigation of his guilt, and without any power left to the jury, to take cognisance of his innocence." And by the most closely connected chain of reasoning,--by authorities,-and by cases, he proved that the anomalous doctrine against which he was contending was at variance with the laws of England. The new trial was refused; and so little did Lord Mansfield anticipate the approaching condemnation of his doctrine, that he sneered at the "jealousy of leaving the law to the court," as "puerile rant and declamation." Such, however, was not the opinion of the first statesmen of his own time, nor of posterity.

1 Rockingham Mem., ii. 200.

2 In 1778. He had only been called to the bar on the last day of the preceding term.-St. Tr. xxi.

1; Erskine's Speeches, i. 4; Edin-
burgh Review, vol. xvi. 103.
3 Note to St. Tr., xxi. 971.

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