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ON THE DOCTRINE OF LIBELS,

AS IT HAS BEEN REPRESENTED BY SOME JUDGES.

To the PRINTER of the PUBLIC ADVERTISER.

Mr. PRINTER,

February 15, 1792.

I CANNOT but rejoice to find, that Mr. Fox has refolved to employ his great abilities in endeavouring to afcertain the LEGAL DOCTRINES concerning LIBELS, and to correct them, if found to be detrimental to a juft and moderate liberty of reasoning upon political measures. One of the points that will probably be the object of the House's confideration in the debate that will arife upon this fubject is, "the right of the jury to inquire into the intention of the writer, or publisher, of the paper profecuted as a feditious libel; and, into the tendency of the faid paper to raise fedition, or disturbance in the country, which is always afcribed to it in the Indictment, or Information, against the publisher, and conftitutes the very effence of the crime imputed to him." Now thefe points have been, by many modern Judges, confidered as matters of law, and therefore, fay they, as matters to be referved for the cognizance of the Judges only, and not for that of the jury, whose whole bufinefs is, to declare "whether, or not, the paper in question (fuch as it is, innocent or mischievous,) was published by the perfon accufed." Lord Mansfield, in particular has called the opinion, which a reader will form of the bad tendency of the paper, and of the wicked intention of the writer of it, from the perusal of it, an inference of law; as if the knowledge of the law were requifite to form fuch an inference. But, furely, this may be done without the

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fmalleft acquaintance with either Lord Coke's Institutes, or his Reports, or Plowden's Reports, or any other fuch recondite learning, and by the mere affiftance of common fenfe, and an ordinary acquaintance with the bufinefs and transactions of the world, fuch as a juryman may be fup. posed to be poffeffed-of. And, therefore, I fhould think it ought rather to be called an inference of reason, than an inference of law, and to be left to the cognizance of the jury; in the fame manner as, in a charge of burglary, or houfe-breaking by night, with an intention to commit a felony, the jury are to determine not only whether the prifoner at the bar broke into the houfe by night, but whether he did fo with an intention to commit a felony. These are inferences of reafon and common fenfe, and not of law, as Lord Mansfield, and fome other Judges, have represented them, for the fake of taking them out of the cognizance of the jury: though, in truth, if they were inferences of law, it would not follow that the jury would have no right to determine them; be caufe "every point of law that is accidentally intermixed with matters of fact, in the complicated iffue, or question, referred to the determination of a Jury, is within their cognizance," as Littleton (the great oracle of the law) has expreffly declared, and all fubfequent lawyers have allowed. But, this is a point not neceffary to be infifted-on in confidering the doctrine of libels, because in those profecutions, all the points to be determined are mere matters of fact: to wit, 1ft, Whether the man published the paper-2dly, Whether he had a bad defign in publishing it-and 3dly, Whether the paper has a bad tendency, or is likely to produce bad effects; which last point is as truly a matter of fact, as, "whether a man who is charged with wounding another with a fword, touched him with a fword, or touched him with a fencing-foil with a button at the end of it," or as, "whether a perfon who is

charged

charged with poisoning another, by giving him a glass of wine, gave him a glass of mere wine, or a glass of wine with arfenic in it."

This doctrine of Lord Mansfield, and fome other Judges, (but which Lord Camden has repeatedly condemned), "that these points are inferences of law, and, therefore, (as they too hastily conclude,) not within the jurifdiction of the jury," was not firft invented by Lord Mansfield, but was laid-down. by Lord Raymond, in the cafe of the King and Franklin, which was tried on the 3d of December, 1731; and it has been most commonly, but not, I think, constantly, adheredto by the Judges ever fince. But it was not the doctrine laid-down in the trial of the feven bifhops, in the year 1688, or the last year of King James the Second, nor by Lord Chief-Juftice Holt, in the reign of Queen Anne. For, in the trial of Mr. Tutchin, in that reign, for one of the most feditious libels that ever were known, that great ChiefJuftice addreffes the jury in these words: "Gentlemen of the Jury-this is an Information for publishing libels against the Queen and her Government ;" and then, after stating the proof of the publication of the papers, and reading fome paffages from them, he goes-on in this manner-" So that, "now you have heard this evidence, you are to confider "whether you are fatisfied that Mr. Tutchin is guilty of 66 writing, compofing, and publishing thefe libels. They say, these are innocent papers, and that nothing is a libel "but what reflects upon fome particular perfon. But this "is a very ftrange doctrine, to fay, it is not a libel reflecting on Government--- to endeavour to poffefs the "people, that the Government is mal-administered by corrupt perfons that are employed in fuch and fuch stations, "either in the navy or army. For it is very neceffary for every Government that the people fhould have a good

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opinion of it; and nothing can be worse than to endeavour

to excite any animofities as to the management of it. "This has been always looked-upon as a crime; and no "Government can be fafe unless it be punished. Now, "you are to confider, whether those words I have read to 66 you do not tend to beget an ill opinion of the Admi"niftration of the Government?" Here, we find this

able Chief Justice expreffly directing the Jury to confider the tendency of the papers in question-to wit, "whether, "they do not tend to beget an ill opinion of the administration of the Government?" inftead of telling them, (as modern Judges have often done) that this tendency is a mere inference of law, which the Judges only have a right to make, without any concurrence of the Jury. And to this moft reasonable and valuable right of confidering both the tendency of the papers complained-of, and the intention of the writer, or publisher, in publishing them, which is ufually an inference of reafon, or common fenfe, not of law, to be drawn from the tendency of them; (though fometimes it happens, that this intention may even be proved, by the positive teftimony of witnesses, which is an additional mark of its being a matter of fact, and not a matter of law). I hope, the Juries of this country will now be restored, by the laudable and patriotick efforts of Mr. Fox and Mr. Erfkine in the course of the approaching debate.

PHILELEUTHERUS.

F. M

THE

THE BILL PROPOSED BY MR. FOX AND MR. ERSKINE IN SUPPORT OF THE RIGHT OF JURIES TO DETERMINE THE WHOLE MATTER IN ISSUE IN CRIMINAL PROSECUTIONS FOR PUBLISHING LIBELS.

From the PUBLIC ADVERTISER, Feb. 15, 1792.

UPON a fubject in which every Englishman is fo materially interested as in the power of a jury, our readers may be gratified by a perufal of Mr. Fox's Bill, patriotically brought into Parliament to remove DOUBTS refpecting the FUNCTIONS of JURIES, in cases of LIBEL.

The bill was yesterday read a third time, and paffed to the Lords; it is extremely short, and, verbatim, as follows. "Whereas doubts have arifen, whether, on the trial of "an Indictment or Information for the making or publishing

any libel, where an iffue or iffues are joined between the "King and the defendant or defendants, on the plea of " Not "Guilty" pleaded, it be competent to the Jury, impannel"led to try the fame, to give their verdict upon the whole "matter in iffue :

"Be it therefore declared and enacted, by the King's "Moft Excellent Majefty, by and with the advice and "confent of the Lords Spiritual and Temporal, and Com"mons, in this prefent Parliament affembled, and by the authority of the fame, That, on every fuch trial, the "jury fworn to try the iffue, may give a general verdict of "GUILTY OF NOT GUILTY, upon the whole matter put in

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ifue upon fuch Indictment or Information; and shall not "be required, or directed, by the Court, or Judge, before "whom fuch Indictment, or Information, fhall be tried, to

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