Upon the trial of Owen, in 1752, for publishing a libel Mr. Murray, as solicitor general, argued to the jury that if they deter mined the question of fact of publication, the judge determined the law. But Mr. Pratt, of counsel for the defendant, argued the whole matter to the jury; and, although the publication was fully proved, and Chief Justice Lee told the jury that, this being so, they could not avoid bringing in the defendant guilty, they returned and persisted in a general verdict of acquittal. 18 How. State Tr. 1203, 1223, 1227, 1228; 29 Parl. Hist. 1408. In the like Case of Nutt, in 1728, 1 Barnard, 306 (Starkie, Sland. & L. 615), conducted by Mr. Murray as attorney general, the like direction was given to the jury by Chief Justice Ryder. Lord Mansfield, in Rex v. Shipley, 4 Doug. 168.

In the similar Case of Shebbeare, in 1758 (Starkie, Sland. & L. 56, 616), Mr. Pratt, as attorney general, when moving before Lord Mansfield for leave to file the information, said: "It is merely to put the matter in a way of trial; for I admit, and his lordship well knows, that the jury are judges of the law as well as the fact, and have an undoubted right to consider whether, upon the whole, the pamphlet in question be or be not published with a wicked, seditious intent, and be or not a false, malicious, and scandalous libel." Second postscript to Letter to Mr. Almon on Libels (1770) p. 7; 4 Collection of Tracts (1763-1770) p. 162. And at the trial, as he afterwards said in the house of lords, he "went into court predetermined to insist on the jury taking the whole of the libel into consideration," and "so little did he attend to the authority of the judges on that subject that he turned his back on them, and directed all he had to say to the jury." 29 Parl. Hist. 1408. And see 20 How. State Tr. 709. But Lord Mansfield instructed the jury that the question whether the publication was a libel was to be determined by the court. 4 Doug. 169.

Lord Camden, when chief justice of the common pleas, presiding at criminal trials, Instructed the jury that they were judges of the law as well as the fact. Pett. Jur. (1769) cited in 21 How. State Tr. 853; 29 Parl. Hist. 1404, 1408.

In the prosecutions, in the summer of 1770, of Miller and Woodfall for publishing the letter of Junius to the king, Lord Mansfield instructed the jury in the same way as in Shebbeare's Case. In Miller's Case the jury returned a verdict of not guilty. In Woodfall's Case the jury returned a verdict of "guilty of printing and publishing only"; and the court therefore granted a motion for a new trial. But Lord Mansfield, on November 20, 1770, in delivering judgment upon that motion, took occasion to say that the court was of opinion "that the direction is right and according to law." Miller's Case, 20 How. State Tr. 869, 893, 895; Woodfall's Case, Id. 895, 901-903, 918, 920, 5 Burrows, 2661, 2666, 2008.

On December 5, 1770, in the house of lords, the judgment in Woodfall's Case was at tacked by Lord Chatham, and defended by Lord Mansfield, in replying to whom Lor Chatham said: "This, my lords, I never under stood to be the law of England, but the contrary. I always understood that the jury were competent judges of the law as well as the fact; and, indeed, if they were not, I can see no essential benefit from their institution to the community." And Lord Camden, after observing that it would be highly necessary to have an authentic statement of the direction to the jury in that case laid before the house, said: "If we can obtain this direction, and obtain it fully stated, I shall very readily deliver my opinion upon the doctrines it inculcates, and, if they ap pear to me contrary to the known and the established principles of the constitution, I shall not scruple to tell the author of his mistake in the open face of this assembly." 16 Parl. Hist. 1302-1307.

On the next day, a warm debate took place in the house of commons upon a motion by Serjeant Glynn for a committee "to inquire into the administration of criminal justice, and the proceedings of the judges in Westminster Hall, particularly in cases relating to the liberty of the press and the constitutional power and duty of juries," in the course of which Mr. Dunning, then the leader of the bar, and afterwards Lord Ashburton, emphatically denied that the doctrine of Lord Raymond and Lord Mansfield was the established law of the land. 16 Parl. Hist. 1212, 1276. See, also, 2 Cavendish's Debates,, 14 141, 369.

*Pursuant to a wish expressed by Lord Mansfield on the day after, the house of lords met on December 10th, when he informed the house that he had left with its clerk a copy of the judgment of the court in Woodfall's Case. Lord Camden thereupon said that he considered the paper as a challenge directed personally to him, which he accepted, and said: "In direct contradiction to him, I maintain that his doctrine is not the law of England. I am ready to enter into debate whenever the noble lord will fix a day for it." And he proposed questions in writing to Lord Mansfield, framed with the view of ascertaining how far that judgment denied the right of the jury, by a general verdict in a criminal case, to determine the law as well as the fact. Lord Mansfield evaded answering the questions, and, while declaring himself ready to discuss them at some future day, declined to name one. And the matter dropped for the time. 16 Parl. Hist. 1312-1322.

In 1783, after the independence of the United States had been recognized by Great Britain, came the case of King v. Shipley, commonly known as Dean of St. Asaph's Case, fully reported in 4 Doug. 73, and in 21 How. State Tr. 847, and briefly stated in 3 Term R. 428, note, which was a criminal prosecution for a seditious libel contained

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in a pamphlet written by Sir William Jones. Mr. Justice Buller, at the trial, told the jury that the only questions for them were whether the defendant published the pamphlet, and whether the innuendoes in the indictment were true; and that the question of libel or no libel was a question of law for the court, and not for the jury, upon which he declined to express any opinion, but that it would be open for the consideration of the court upon a motion in arrest of judgment. The jury returned a verdict of "guilty of publishing only," but were persuaded by the judge to put it in this form: "Guilty of publishing, but whether a libel or not the jury do not find." 4 Doug. 81, 82, 85, 86; 21 How. State Tr. 946, 950-955. The effect of all this was that the defendant was found guilty of publishing a paper, which neither the judge nor the jury had held to be a libel; and judgment was ultimately arrested upon the ground that, as set out in the indictment, it was not libelous. Id. 1044.

But, before the motion in arrest of judg ment was argued, Mr. Erskine obtained a rule to show cause why a new trial should not be granted, principally upon the ground that the judge told the jury that the question whether libel or not was not for their decision; whereas the jury, upon the general issue, had not only the power, but the right, to decide the law. It was upon this rule that Mr. Erskine made his famous argument in support of the rights of juries, and that Lord Mansfield delivered the judgment, in which Mr. Justice Ashurst concurred, which has since been the principal reliance of those who deny the right of the jury to decide the law involved in the general issue in a criminal case.

It should not be overlooked that, at the hearing of this motion, Mr. Bearcroft, the leading counsel for the crown, said he "agreed with the counsel for the defendant that it is the right of the jury, if they please, on the plea of not guilty, to take upon themselves the decision of every question of law necessary to the acquittal of the defendant; and, Lord Mansfield observing that he should call it the 'power,' not the 'right,' he ad bered to the latter expression; and added that he thought it an important privilege, and which, on particular occasions,-as, for instance, if a proper censure of the measures of the servants of the crown were to be construed by a judge to be libelous,-it would be laudable and justifiable in them to exercise." 4 Doug. 94, note. See, also, page 108.

Mr. Justice Willes, dissenting from the opinion of the court, said he was sure that these statements of Mr. Bearcroft expressed "the sentiments of the greater part of Westminster Hall," and declared: "I conceive it to be the law of this country that the jury, upon a plea of not guilty, or upon the general issue, upon an indictment or an information for a libel, have a constitutional right, if they think fit, to examine the innocence or criminality of the paper, notwithstanding v.15s.c.-20

there is sufficient proof given of the publication." "I believe no man will venture to say they have not the power, but I mean expressly to say they have the right. Where a civil power of this sort has been exercised without control, it presumes-nay, by continual usage, it gives-the right. It was the right which juries exercised in those times of violence when the Seven Bishops were tried, and which even the partial judges who then presided did not dispute, but authorized them to exercise upon the subject-matter of the libel; and the jury, by their solemn verdict upon that occasion, became one of the happy Instruments, under Providence, of the salvation of this country. This privilege has been assumed by the jury in a variety of ancient and modern instances, and particularly in the case of Rex v. Owen, without any correction or even reprimand of the court. It is a right, for the most cogent reasons, lodged in the jury, as without this restraint the subject in bad times would have no security for his life, liberty, or property." And he concurred in refusing a new trial, solely because, in his opinion, neither the counsel for the prosecution, nor the judge presiding at the trial, had impugned these doctrines, and the verdict returned by the jury was in the nature of a special verdict, in effect submitting the law to the court. 4 Doug. 171–175. In 1789, in Rex v. Withers, 3 Term R. 428, Lord Kenyon instructed a jury in the same way that Mr. Justice Buller had done in Dean of St. Asaph's Case.

In 1791, the declaratory statute, entitled "An act to remove doubts respecting the functions of juries in cases of libel," and known as "Fox's Libel Act," was introduced in parliament, and was passed in 1792. 32 Geo. III. c. 60.

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By that act, "the legislature," as lately observed by Lord Blackburn in the house of lords, "adopted almost the words and quite the substance" of that passage of the opinion of Mr. Justice Willes first above quoted. Bank v. Henty, L. R. 7 App. Cas. 741, 775.

The doubts which the act was passed to remove were, as recited at the beginning of the act, upon the question whether upon the trial of an indictment or information for libel, on the plea of not guilty, "it be competent to the jury impaneled to try the same to give their verdict upon the whole matter put in issue"; and it was "therefore declared and enacted [not merely enacted, but declared to be the law as already*existing] that on * every such trial the jury sworn to try the issue may give a general verdict of guilty or not guilty upon the whole matter put in issue upon such indictment or information; and shall not be required or directed, by the court or judge before whom such indictment or information shall be tried, to find the defendant or defendants guilty, merely on the proof of the publication by such defendant or defendants of the paper charged to be a libel, and of the sense ascribed to the same in such indictment or information."

The act then provides-First, that the presiding judge may, at his discretion, give instructions to the jury; second, that the jury may, at their discretion, return a special verdict; and, third, that the defendant, if found guilty, may move in arrest of judgment. The first of these provisos, and the only one requiring particular notice, is that the judge shall, at his discretion, give "his opinion and directions to the jury on the matter at issue," "in like manner as in other criminal cases." His "opinion and directions" clearly means by way of advice and instruction only, and not by way of order or command; and the explanation, "in like manner as in other criminal cases," shows that no particular rule was intended to be laid down in the case of libel. And that this was the understanding at the time is apparent from the debate on the proviso, which was adopted on the motion of Sir John Scott (then solicitor general, and afterwards Lord Eldon) just before the bill passed the house of commons in 1791. 29 Parl Hist. 594-602.

The clear effect of the whole act is to declare that the jury (after receiving the instructions of the judge, if he sees fit to give any instructions) may decide, by a general verdict, "the whole matter put in issue," which necessarily includes all questions of law, as well as of fact, involved in the general issue of guilty or not guilty, and to recognize the same rule as existing in all criminal cases.

Not only is this the clear meaning of the words of the act, but that such was its intent and effect is shown by the grounds taken by its supporters and its opponents in parliament, as well as by subsequent judicial opinions in England.

Mr. Fox, upon moving the introduction of the bill in the house of commons in 1791, after observing that he was not ignorant that "power" and "right" were not convertible terms, said that, "if a power was vested in any person, it was surely meant to be exercised"; that "there was a power rested in the jury to judge the law and fact, as often as they were united, and, if the jury were not to be understood to have a right to exercise that power, the constitution would never have intrusted them with it"; "but they knew it was the province of the jury to judge of law and fact, and this was the case, not of murder only, but of felony, high treason, and of every other criminal indictment"; and that "it must be left in all cases to a jury to infer the guilt of men, and an English subject could not lose his life but by a judgment of his peers." 29 Parl. Hist. 564, 565, 597. And Mr. Pitt, in supporting the bill, declared that his own opinion was against the practice of the judges, "and that he saw no reason why, in the trial of a libel, the whole consideration of the case might not go precisely to the unfettered judgment of twelve men, sworn to give their verdict honestly and conscientiously, as it did in matters of felony and other crimes of a high nature." 29 Parl. Hist. 588.

In the debate in the house of lords, on a motion of Lord Chancellor Thurlow to put off the reading of the bill, Lord Camden said: "He would venture to affirm, and should not be afraid of being contradicted by any professional man, that, by the law of England as it now stood, the jury had a right, in deciding on a libel, to judge whether it was criminal or not; and juries not only possessed that right, but they had exercised it in various instances." He added, as "a matter which he conceived should be imprinted on every juror's mind, that if they found a verdict of the publishing, and left the criminality to the judge, they had to answer to God and their consciences for the punishment that might, by such judge, be inflicted on the defendant, whether it was fine, imprisonment, loss of ears, whipping, or any other disgrace, which was the sentence of the court." After further enforcing his opinion, he said: "I will affirm that they have that right, and that there is no power by the law of this country to prevent them from the exercise of that right, if they think fit to maintain it; and, when they are pleased to acquit any defendant, their acquittal will stand good until the law of England is changed." "My lords," said he, "give to the jury or to the judge the right of trial of the subjects of this country. You must give it to one of them, and I think you can have no difficulty which to prefer." And he concluded by saying that "he did not apprehend that the bill had a tendency to alter the law, but merely to remove doubts that ought never to have been entertained, and therefore the bill had his hearty concurrence; but, as he was assured that the proposed delay was not hostile to the principle of the bill, but only to take it into serious consideration, and to bring it again forward, he had no objection to the motion of the lord chancellor." 29 Parl. Hist. 729, 730, 732.

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In the house of lords in 1792, the biu having again passed the house of commons, Lord Loughborough, for many years chief justice of the common pleas, said that he "had ever deemed it his duty, in cases of libel, to state the law as it bore on the facts, and to refer the combined consideration to the jury"; and that "their decision was final. There was no control upon them in their verdict. The evident reason and good sense of this was that every man was held to be acquainted with the criminal law of the land. norance was no plea for the commission of a crime, and no man was therefore supposed to be ignorant of judging upon the evidence adduced of the guilt or innocence of a de fendant. It was the admitted maxim of law, 'Ad quaestionem juris respondent judices, ad quaestionem facti juratores;' but, when the law and the fact were blended, it was the undoubted right of the jury to decide. If the law was put to them fairly, there was undoubtedly not one case in a thousand on which they would not decide properly. they were kept in the dark, they were some

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Pending the debate, the house of lords put questions to the judges, who returned an opinion, in which, after saying that "the general criminal law of England is the law of libel," they laid down, as a fundamental propesition, applicable to treason as well as to other crimes, "that the criminality or innocence of any act done (which includes any paper written) is the result of the judgment which the law pronounces upon that act, and must therefore be in all cases, and under all circumstances, matter of law, and not matter of fact." With such a basis, it is hardly to be wondered at that they "conceived the law to be that the judge is to declare to the jury what the law is," and "that it is the duty of the jury, if they will find a general verdict upon the whole matter in issue, to compound that verdict of the fact as it appears in evidence before them, and of the law as it is declared to them by the judge." The judges, however, "took this occasion to observe" that they had "offered no opinion which will have the effect of taking matter of law out of a general issue, or out of a general verdict," and "disclaimed the folly of undertaking to prove that a jury, who can find a general verdict, cannot take upon themselves to deal with matter of law arising in a general issue, and to hazard a verdict made up of the fact, and of the matter of law, according to their conception of that law, against all direction by the judge." 29 Parl. Hist. 1361-1369.

On Lord Camden's motion, the bill was postponed, in order to enable the house to consider the opinion of the judges, and was then proceeded with, when Lord Camden "exposed the fallacy of the pretended distinction between law and fact, in the question of guilty or not guilty of printing and publishing a libel. They were united as much as intent and action in the consideration of all other criminal proceedings. Without an implied malice, a man could not be found guilty, even of murder. The simply killing of a man was nothing, until it was proved that the act arose from malice. A man might kill another in his own defense, or under various circumstances which rendered the killing no murder. How were these things to be explained? the circumstances of the case. What was the ruling principle? The intention of the party. Who were judges of the intention of the party, the judge? No; the jury. So that the jury were allowed to judge of the* intention upon an indictment for murder, and not to judge of the intention of the party upon libel." And Lord Loughborough. as well as Lord Camden, distinctly af firmed, and Lord Thurlow as distinctly denied, that upon the general issue in criminal cases, after the judge had stated the law to the jury, the jury were to decide both the question of law and the question of fact. 29 Parl. Hist. 1370, 1405, 1406, 1426, 1429.

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Towards the close of the debate, Lord Thur

low moved to amend the bill by inserting the words "that the judge state to the jury the legal effect of the record." Lord Camden successfully opposed the amendment "as an attempt indirectly to convert the bill into the very opposite of what it was intended to be, and to give the judges a power ten times greater than they had ever yet exercised," and said: "He must contend that the jury had an undoubted right to form their verdict themselves according to their consciences, applying the law to the fact. If it were otherwise, the first principle of the law of England would be defeated and overthrown. If the twelve judges were to assert the contrary again and again, he would deny it utterly, because every Englishman was to be tried by his country; and who was his country but his twelve peers, sworn to condemn or acquit according to their consciences? If the opposite doctrine were to obtain, trial by jury would be a nominal trial, a mere form; for, in fact, the judge, and not the jury, would try the man. He would contend for the truth of this argument to the latest hour of his life, manibus pedibusque. With regard to the judge stating to the jury what the law was upon each particular case, it was his undoubted duty so to do; but, having done so, the jury were to take both law and fact into their consideration, and to exercise their discretion and discharge their consciences." 29 Parl. Hist. 1535, 1536.

The first ground of the protest of Lord Thurlow, Lord Bathurst, Lord Kenyon, and three other lords against the passage of the act was "because the rule laid down by the bill, contrary to the determination of the judges and the unvaried practice of ages, subverts a fundamental and important principle of English jurisprudence, which, leaving to the jury the trial of the fact, reserves to the court the decision of the law." 29 Parl. Hist. 1537.

Lord Brougham, in his sketch of Lord Camden, declares that "the manly firmness which he uniformly displayed in maintaining the free principles of the constitution, wholly unmixed with any leaning towards extravagant popular opinions, or any disposition to court vulgar favour, justly entitles him to the very highest place among the judges of England"; and, speaking of his conduct in carrying the libel bill through the house of lords, says that "nothing can be more refreshing to the lovers of liberty, or more gratifying to those who venerate the judicial character, than to contemplate the glorious struggle for his longcherished principles with which Lord Camden's illustrious life closed"; and quotes some of his statements, above cited, as passages upon which "the mind fondly and reverently dwells," "hopeful that future lawyers and future judges may emulate the glory and the virtue of this great man." 3 Brougham's Statesmen of George III. (Ed. 1843) 156, 178, 179.

In the well-known case of Rex v. Burdett, 3 Barn. & Ald. 717, 4 Barn. & Ald. 95, and 1 State Tr. (N. S.) 1, for publishing a seditious

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libel, Mr. Justice Best (afterwards chief justice of the common pleas, and Lord Wynford) told the jury that, in his opinion, the publication was a libel; that they were to decide whether they would adopt his opinion; but that they were to take the law from him, unless they were satisfied that he was wrong. 4 Barn. & Ald. 131, 147, 183. The defendant having been convicted, the court of king's bench, upon a motion for a new trial, held, after advisement, that this instruction was correct.

Mr. Justice Best said: "It must not be supposed that the statute of George III. made the question of libel a question of fact. If it had, instead of removing an anomaly, it would have created one. Libel is a question of law, and the judge is the judge of the law in libel as in all other cases, the jury having the power of acting agreeably to his statement of the law or not. All that the statute I does is to prevent the question from being left to the jury in the narrow way in which it was left before that time. The jury were then only to find the fact of the publication, and the truth of the innuendoes; for the judges used to tell them that the intent was an inference of law, to be drawn from the paper, with which the jury had nothing to do. The legislature has said that that is not so, but that the whole case is to be left to the jury. But judges are in express terms directed to lay down the law as in other cases. all cases the jury may find a general verdict. They do so in cases of murder and treason, but there the judge tells them what is the law, though they may find against him, unless they are satisfied with his opinion. And this is plain from the words of the statute." 4 Barn. & Ald. 131, 132.

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Justices Holroyd and Bayley and Chief Justice Abbott (afterwards Lord Tenterden) expressed the same view. 4 Barn. & Ald. 145147, 183, 184. Mr. Justice Bayley said: "The old rule of law is, 'Ad quaestionem juris respondent judices, ad quaestionem facti respondent juratores;' and I take it to be the bounden duty of the judge to lay down the law as it strikes him, and that of the jury to accede to it, unless they have superior knowledge on the subject: and the direction in this case did not take away from the jury the power of acting on their own judgment." And the chief justice said: "If the judge is to give his opinion to the jury, as in other criminal cases, it must be not only competent, but proper, for him to tell the jury, if the case will so warrant, that, in his opinion, the publication before them is of the character and tendency attributed to it by the indictment; and that, if it be so in their opinion, the publication is an offense against the law." "The statute was not intended to confine the matter in issue exclusively to the jury without hearing the opinion of the judge, but to declare that they should be at liberty to exercise their own judgment upon the whole matter in issue, after receiving thereupon the opinion and directions of the judge."

The weight of this deliberate and unanimous declaration of the rightful power of the jury to decide the law in criminal cases is not impaired by the obiter dictum hastily uttered and promptly recalled by Chief Justice Best in the civil case (summarily decided upon a narrower point) of Levi v. Milne, and reported so differently in 4 Bing. 195, and in 12 Moore, 418, as to leave it doubtful what he really said. And according to later English authorities, even in civil actions, the question of libel or no libel may be submitted by the judge to the jury, without expressing his own opinion upon it. Parmiter v. Coupland, 6 Mees. & W. 105, 108; Baylis v. Lawrence, 11 Adol. & E. 920, 3 Perry & D. 526; Cox v. Lee, L. R. 4 Exch. 284.

It is to be remembered that, by the law of England, a person convicted of treason or felony could not appeal, or move for a new trial, or file a bill of exceptions, or in any other manner obtain a judicial review of rulings or instructions not appearing upon the record, unless the judge himself saw fit to reserve the question for the opinion of all the judges. In short, as observed by Dr. Lushington, in delivering judgment in the privy council, "the prisoner has no 'legal right,' in the proper sense of the term, to demand a reconsideration, by a court of law, of the verdict, or of any legal objection raised at the trial." Reg. v. Eduljee Byramjee, 5 Moore, P. C. 276, 287; Reg. v. Bertrand, L. R. 1 P. C. 520; 1 Chit. Cr. Law, 622, 654; 3 Russ. Crimes (9th Ed.) 212. Consequently, a prisoner tried before an ar bitrary, corrupt, or ignorant judge had no protection but in the conscience and the firmness of the jury.

There is no occasion further to pursue the examination of modern English authorities, because in this country, from the time of its settlement until more than half a century after the Declaration of Independence, the law as to the rights of juries, as generally understood and put in practice, was more in accord with the views of Bacon, Hale, Vaughan, Somers, Holt, and Camden than with those of Kelyng, Scroggs, Jeffreys, Raymond, Hardwicke, and Mansfield. Upon a constitutional question, affecting the liberty of the subject, there can be no doubt that the opinions of Somers and of Camden, especially, were of the very highest authority, and were so considered by the founders of the Republic.

In Massachusetts, the leading authorities upon the question, nearest the time of the Declaration of Independence and the adoption of the constitution of the United States, are John Adams and Theophilus Parsons, each of whom was appointed, with the general approval of the bar and the people, chief Justice of the state; the one, appointed to that office by the revolutionary government in 1775, resigning it the next year, remaining in the continental congress to support the Declaration of Independence, and afterwards the first vice president and the second president of the United States; the other, a lead

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