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Upon the trial of Owen, in 1752, for publishing a libel Mr. Murray, as solicitor general, argued to the jury that if they determined 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 Bar. nard, 306 (Starkie, Sland. & L. 615), con. ducted 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 Col. lection 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 deterinined 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. 809, 893, 895; Woodfall's Case, Id. 895, 901-903, 918, 920, 5 Burrows, 2661, 2666, 2008.

On December 5, 1770, in the house of lor!s, the judgment in Woodfall's Case was attacked by Lord Chatham, and defended by Lord Mansfield, in replying to whom Loru Chatham said: “This, my lords. I never under: stood to be the law of England, but the con. trary. 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 in. stitution 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 appear 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, 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 bis 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 judg. ment 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

And the matter dropped for the time. 16 Parl. Hist, 1312-1322.

In 1783, after the independence of the Unit. ed States had been recognized by Great Britain, came the case of King v. Shipley, commonly known as Dean of St. Asapb'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



iD a pamphlet written by Sir William Jones. there is sufficient proof given of the publicaMr. Justice Buller, at the trial, told the jury tion." "I believe no man will venture to say that the only questions for them were wheth. they have not the power, but I mean expresser the defendant published the pamphlet, and ly to say they have the right Where a civil whether the innuendoes in the indictment power of this sort has been exercised with. were true; and that the question of libel or out control, it presurnes-nay, by continual no libel was a question of law for the court, usage, it gives-the right. It was the right and not for the jury, upon which he de which juries exerciscd in those times of vioclined to express any opinion, but that it lence when the Seven Bishops were tried, would be open for the consideration of the and which even the partial judges who then court upon a motion in arrest of judgment. presided did not dispute, but authorized them The jury returned a verdict of "guilty of to exercise upon the subject-matter of the publisbing only,” but were persuaded by the libel; and the jury, by their solemn verdict judge to put it in this form: “Guilty of upon that occasion, became one of the happy publishing, but whether a libel or not the Instruments, under Providence, of the salvajury do not find." 4 Doug. 81, 82, 85, 86; tion of this country. This privilege has been 2) How. State Tr. 946, 950–955. The effect assumed by the jury in a variety of ancient of all this was that the defendant was found and modern instances, and particularly in the guilty of publishing a paper, which neither case of Rex v. Owen, without any correction the judge nor the jury bad held to be a li or even reprimand of the court. It is a bel; and judgment was ultimately arrested right, for the most cogent reasons, lodged in upon the ground that, as set out in the in the jury, as without this restraint the subdictment, it was not libelous. Id. 1044. ject in bad times would have no security for

But, before the motion in arrest of judg. his life, liberty, or property.” And he conment was argued, Mr. Erskine obtained a curred in refusing a new trial, solely berule to show cause why a new trial should cause, in his opinion, neither the counsel for not be granted, principally upon the ground the prosecution, nor the judge presiding at that the judge told the jury that the ques the trial, had impugped these doctrines, and tion whether libel or not was not for their the verdict returned by the jury was in the decision; whereas the jury, upon the general nature of a special verdict, in effect submit. issue, had not only the power, but the right, ting the law to the court. 4 Doug. 171–175. to decide the law. It was upon this rule In 1789, in Rex v. Withers, 3 Term R. 428, that Mr. Erskine made his famous argu Lord Kenyon instructed a jury in the same ment in support of the rights of juries, and way that Mr. Justice Buller had done in that Lord Mansfield delivered the judgment, Dean of St. Asaph's Case. In which Mr. Justice Ashurst concurred, In 1791, the declaratory statute, entitled which has since been the principal reliance "An act to remove doubts respecting the of those who deny the right of the jury to functions of juries in cases of libel," and decide the law Involved in the general issue known as "Fox's Libel Act," was introduced in a criminal case.

in parliament, and was passed in 1792. St. It should not be overlooked that, at the 32 Geo. III. r., 60. hearing of this motion, Mr. Bearcroft, the By that act, “the legislature," as lately ob leading counsel for the crown, said he served by Lord Blackburn in the house of "agreed with the counsel for the defendant lords, "adopted almost the words and quite that it is the right of the jury, if they please, the substance" of that passage of the opinon the plea of not guilty, to take upon them- | ion of Mr. Justice Willes first above quoted. selves the decision of every question of law Bank v. Henty, L. R. 7 App. Cas. 741, 775. necessary to the acquittal of the defendant; The doubts which the act was passed to and, Lord Mansfield observing that be should remove were, as recited at the beginning of call it the 'power,' not the right,' he ad. the act, upon the question whether upon the bered to the latter expression; and added trial of an indictment or information for 1that he thought it an important privilege, bel, on the plea of not guilty, “it be compeand which, on particular occasions,-as, for tent to the jury impaneled to try the same to instance, if a proper censure of the measures give their verdict upon the whole matter put of the servants of the crown were to be con in issue"; and it was "therefore declared strued by & judge to be libelous,-it would and enacted (not merely enacted, but declarbe laudable and justifiable in them to exer ed to be the law as already existing] that on cise." 4 Doug. 94, note. See, also, page 108. every such trial the jury sworn to try the is

Mír. Justice Willes, dissenting from the sue may give a general verdict of guilty or opinion of the court, said he was sure that not guilty upon the whole matter put in isthiese statements of Mr. Bearcroft expressed sue upon such indictment or information; the sentiments of the greater part of West and shall not be required or directed, by the minster Hall," and declared: “I conceive it court or judge before whom such indictment to be the law of this country that the jury, or information shall be tried, to find the deupon a plea of not guilty, or upon the gen fendant or defendants guilty, merely on the eral issue, upon an indictment or an informa proof of the publication by such defendant tion for a libel, have a constitutional right, or defendants of the paper charged to be a if they think fit, to examine the innocence libel, and of the sense ascribed to the same or criminality of the paper, notwithstanding in such indictment or information"


The act then provides First, that the pre In the debate in the house of lords, on a siding judge may, at his discretion, give in. motion of Lord Chancellor Thurlow to put structions to the jury; second, that the jury off the reading of the bill, Lord Camden said: may, at their discretion, return a special ver He would venture to affirm, and should not dict; and, third, that the defendant, if found be afraid of being contradicted by any proguilty, may move in arrest of judgment. The fessional man, that, by the law of England tirst of these provisos, and the only one re as it now stood, the jury had a right, in quiring particular notice, is that the judge deciding on a libel, to judge whether it was shall, at his discretion, give “his opinion and criminal or not; and juries not only posdirections to the jury on the matter at is sessed that right, but they had exercised it sue," "in like manner as in other criminal in various instances." He added, as "a mat. cases." His "opinion and directions" clearly ter which he conceived should be imprinted means by way of advice and instruction on on every juror's mind, that if they found a ly, and not by way of order or command; verdict of the publishing, and left the crimand the explanation, "in like manner as in inality to the judge, they had to answer to other criminal cases,” shows that no particu God and their consciences for the punishlar rule was intended to be laid down in the ment that might, by such judge, be inflicted case of libel. And that this was the under on the defendant, whether it was fine, imstanding at the time is apparent from the prisonment, loss of ears, whipping, or any debate on the proviso, which was adopted on other disgrace, which was the sentence of the motion of Sir John Scott (then solicitor the court." After further enforcing his opin. general, and afterwards Lord Eldon) just be ion, he said: “I will affirm that they have fore the bill passed the house of commons in that right, and that there is no*power by the 1791. 29 Parl Hist. 59+602.

law of this country to prevent them from The clear effect of the whole act is to de the exercise of that right, if they think fit clare that the jury (after receiving the in

to maintain it; and, when they are pleased structions of the judge, if he sees fit to give

to acquit any defendant, their acquittal will any instructions) may decide, by a general stand good until the law of England is verdict, “the whole matter put in issue," which changed.” “My lords," said he, "give to the necessarily includes all questions of law, as

jury or to the judge the right of trial of the well as of fact, involved in the general issue

subjects of this country. You must give it of guilty or not guilty, and to recognize the to one of them, and I think you can have no same rule as existing in all criminal cases. difficulty which to prefer.” And he conclud

Not only is this the clear meaning of the ed by saying that "he did not apprehend words of the act, but that such was its intent

that the bill had a tendency to alter the law, and effect is shown by the grounds taken by

but merely to remove doubts that ought its supporters and its opponents in parlia never to have been entertained, and therement, as well as by subsequent judicial opin

fore the bill had his hearty concurrence; but, ions in England.

as he was assured that the proposed delay * Mr. Fox, upon moving the introduction of was not hostile to the principle of the bill, the bill in the house of commons in 1791,

but only to take it into serious considera. after observing that he was not ignorant

tion, and to bring it again forward, he had that "power” and “right” were not con

no objection to the motion of the lord chanvertible terms, said that, "if a power was

cellor.” 29 Parl. Hist. 729, 730, 732. vested in any person, it was surely meant

In the house of lords in 1792, the biu har. to be exercised"; that “there was a power

ing again passed the house of commons, Lord rested in the jury to judge the law and fact, Loughborough, for many years chief justice as often as they were wited, and, if the jury of the common pleas, said that he “had ever were not to be understood to have a right to

deemed it his duty, in cases of libel, to state exercise that power, the constitution would the law as it bore on the facts, and to refer never have intrusted them with it"; "but the combined consideration to the jury"; they knew it was the province of the jury

and that “their decision was final. There to judge of law and fact, and this was the was no control upon them in their verdict. case, not of murder only, but of felony, high The evident reason and good sense of this treason, and of every other criminal indict was that every man was held to be acquaintment''; and that "it must be left in all cases ed with the criminal law of the land. Ig. to a jury to infer the guilt of men, and an norance was no plea for the commission of a English subject could not lose his life but crime, and no man was therefore supposed by a judgment of his peers.” 29 Parl. Hist. to be ignorant of judging upon the evidence 564, 565, 597. And Mr. Pitt, in supporting adduced of the guilt or innocence of a de. the bill, declared that his own opinion was

fendant. It was the admitted maxim of law, against the practice of the judges, "and that 'Ad quaestionem juris respondent judices, he saw no reason why, in the trial of a libel, ad quaestionem facti juratores; but, when the whole consideration of the case might the law and the fact were blended, it was not go precisely to the unfettered judgment the undoubted right of the jury to decide. of twelve men, sworn to give their verdict If the law was put to them fairly, there was honestly and conscientiously, as it did in undoubtedly not one case in a thousand on matters of felony and other crimes of a high which they would not decide properly. If nature" 29 Parl Hist. 588.

they were kept in the dark, they were some

times led into wrong, through mere jealousy low moved to amend the bill by inserting the of their own right." 29 Parl. Hist. 1296, words "that the judge state to the jury the 1297.

legal effect of the record." Lord Camden Pending the debate, the house of lords put successfully opposed the amendment “as an questions to the judges, who returned an attempt indirectly to convert the bill into the opinion, in which, after saying that “the gen very opposite of what it was intended to be, eral criminal law of England is the law of and to give the judges a power ten times libel," they laid down, as a fundamental prop greater than they had ever yet exercised," and osition, applicable to treason as well as to oth said: "He must contend that the jury had an er crimes, “that the criminality or innocence undoubted right to form their verdict themof any act done (which includes any paper selves according to their consciences, applywritten) is the result of the judgment which ing the law to the fact. If it were otherwise, the law pronounces upon that act, and must the first principle of the law of England therefore be in all cases, and under all cir would be defeated and overthrown. If the cumstances, matter of law, and not matter of twelve judges were to assert the contrary fact." With such a basis, it is hardly to be again and again, he would deny it utterly, wondered at that they “conceived the law to because every Englishman was to be tried by be that the judge is to declare to the Jury his country; and who was his country but his what the law is," and "that it is the duty of twelve peers, sworn to condemn or acquit acthe jury, if they will find a general verdict cording to their consciences? If the opposite upon the whole matter in issue, to compound doctrine were to obtain, trial by jury would that verdict of the fact as it appears in evi. be a nominal trial, a mere form; for, in fact, dence before them, and of the law as it is the judge, and not the jury, would try the declared to them by the judge." The judges, man. He would contend for the truth of this however, “took this occasion to observe” that argument to the latest hour of his life, manj. they had "offered no opinion which will have bus pedibusque. With regard to the judge the effect of taking matter of law out of a stating to the jury what the law was upon general issue, or out of a general verdict,” each particular case, it was his undoubted and “disclaimed the folly of undertaking to duty so to do; but, having done so, the jury prove that a jury, who can find a general ver were to take both law and fact into their condict, cannot take upon themselves to deal sideration, and to exercise their discretion with matter of law arising in a general issue, and discharge their consciences.” 29 Parl. and to hazard a verdict made up of the fact, Hist. 1535, 1536. and of the matter of law, according to their The first ground of the protest of Lord conception of that law, against all direction Thurlow, Lord Bathurst, Lord Kenyon, and by the judge." 29 Parl. Hist. 1361-1369. three other lords against the passage of the act

On Lord Camden's motion, the bill was was “because the rule laid down by the bill, postponed, in order to enable the house to contrary to the determination of the judges consider the opinion of the judges, and was and the unvaried practice of ages, subverts a then proceeded with, when Lord Camden “ex fundamental and important principle of Eng. posed the fallacy of the pretended distinction lish jurisprudence, which, leaving to the jury between law and fact, in the question of the trial of the fact, reserves to the court the guilty or not guilty of printing and publishing decision of the law.” 29 Parl. Hist. 1537. a libel. They were united as much as intent Lord Brougham, in his sketch of Lord Camand action in the consideration of all other den, declares that “the manly firmness which criminal proceedings. Without an implied be uniformly displayed in maintaining the malice, a man could not be found guilty, even free principles of the constitution, wholly un. of murder. The simply killing of a man was mixed with any leaning towards extravagant nothing, until it was proved that the act arose popular opinions, or any disposition to court from malice. A man might kill another in vulgar favour, justly entitles him to the very his own defense, or under various circumstan highest place among the judges of England"; ces which rendered the killing no murder. and, speaking of his conduct in carrying the How were these things to be explained? By libel bill through the house of lords, says that the circumstances of the case. What was the "nothing can be more refreshing to the lovers ruling principle? The intention of the party. of liberty, or more gratifying to those who Who were judges of the intention of the par venerate the judicial character, than to con. ty,-the judge? No; the jury. So that the template the glorious struggle for his longjury were allowed to judge of the Inten cherished principles with which Lord Camtion upon an indictment for murder, and den's illustrious life closed"; and quotes some not to judge of the intention of the par of his statements, above cited, as passages ty upon libel.” And Lord Loughborough upon which “the mind fondly and reverently as well as Lord Camden, distinctly af. dwells," "hopeful that future lawyers and fufirmed, and Lord Thurlow as distinctly de ture judges may emulate the glory and the nied, that upon the general issue in criminal virtue of this great man." 3 Brougham's cases, after the judge had stated the law to Statesmen of George III. (Ed. 1813) 156, 178, the jury, the jury were to decide both the 179. question of law and the question of fact 29 In the well-known case of Rex V. Burdett, Parl. Hist. 1370, 1405, 1406, 1426, 1429.

3 Barn. & Ald. 717, 4 Barn. & Ald. 95, and 1 Towards the close of the debate, Lord Thur State Tr. (N. S.) 1, for publishing a seditious

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libel, Mr. Justice Best (afterwards chief jus The weight of this deliberate and anani. tice of the common pleas, and Lord Wynford) mous declaration of the rigbtful power of the told the jury that, in his opinion, the publie jury to decide the law in criminal cases is not cation was a libel; that they were to decide impaired by the obiter dictum hastily uttered whether they would adopt his opinion; but and promptly recalled by Chief Justice Best that they were to take the law from him, un in the civil case (summarily decided upon a less they were satisfied that he was wrong. narrower point) of Levi v. Milne, and report. 4 Barn. & Ald. 131, 147, 183. The defendant ed so differently in 4 Bing. 193, and in 12 having been convicted, the court of king's Moore, 418, as to leave it doubtful what he bench, upon a motion for a new trial, held, really said. And according to later Englisb after advisement, that this instruction was authorities, even in civil actions, the question correct.

of libel or no libel may be submitted by the Mr. Justice Best said: “It must not be sup judge to the jury, without expressing his own posed that the statute of George Ill. made opinion upon it. Parmiter V. Coupland, 6 the question of libel a question of fact. If it Mees. & W. 105, 108; Baylis v. Lawrence, 11 had, instead of removing an anomaly, it Adol. & E. 920, 3 Perry & D. 526; Cox v. would have created one. Libel is a question Lee, L. R. 4 Exch. 284. of law, and the judge is the judge of the law It is to be remembered that, by the law of in libel as in all other cases, the jury having England, a person convicted of treason or felthe power of acting agreeably to his state ony could not appeal, or move for a new trial, ment of the law or not. All that the statute or file a bill of exceptions, or in any other does is to prevent the question from being manner obtain a judicial review of rulings or left to the jury in the narrow way in which it instructions not appearing upon the record, was left before that time. The jury were unless the judge himself saw fit to reserve the then only to tind the fact of the publication, question for the opinion of all the judges. In and the truth of the innuendoes; for the short, as observed by Dr. Lushington, in de judges used to tell them that the intent was livering judgment in the privy council, “the an inference of law, to be drawn from the prisoner has no 'legal right,' in the proper paper, with which the jury had nothing to do. sense of the term, to demand a reconsideration, The legislature has said that that is not so by a court of law, of the verdict, or of any legal but that the whole case is to be left to the ju. objection raised at the trial.” Reg. v. Edul. ry. But judges are in express terms directed jee Byramjee, 5 Moore, P. C. 276, 287; Reg. to lay down the law as in other cases. In V. Bertrand, L. R. 1 P. C. 520; 1 Chit. Cr. all cases the jury may find a general verdict. Law, 622, 654; 3 Russ. Crimes (9th Ed.) 212. They do so in cases of murder and treason, Consequently, a prisoner tried before an ar but there the judge tells them what is the bitrary, corrupt, or ignorant judge had no law, though they may find against him, un protection but in the conscience and the firmless they are satisfied with his opinion. And ness of the jury. this is plain from the words of the statute." There is no occasion further to pursue the 4 Barn. & Ald. 131, 132.

examination of modern English authorities, Justices Holroyd and Bayley and Chief Jus because in this country, from the time of its tice Abbott (afterwards Lord Tenterden) ex. settlement until more than half a century pressed the same view. 4 Barn. & Ald. 145– after the Declaration of Independence, the 147, 183, 184. Mr. Justice Bayley said: “The law as to the rights of Juries, as generally old rule of law is, 'ad quaestionem juris re anuerstood and put in practice, was more in spondent judices, ad quaestionem facti re accord with the views of Bacon, Hale, Vauspondent juratores;' and I take it to be the ghan, Somers, Holt, and Camden than with bounden duty of the judge to lay down the those of Kelyng, Scroggs, Jeffreys, Raymond, law as it strikes him, and that of the jury to Hardwicke, and Mansfield. Upon a constiaccede to it, unless they have superior knowl. tutional question, affecting the liberty of the edge on the subject: and the direction in this subject, there can be no doubt that the opincase did not take away from the jury the lons of Somers and of Camden, especially, power of acting on their own judgment." were of the very bigbest authority, and were And the chief justice said: "If the judge is 80 considered by the founders of the Repubto give his opinion to the jury, as in other

lic. criminal cases, it must be not only compe In Massachusetts, the leading authorities tent, but proper, for him to tell the jury, it opon the question, nearest the time of the the case will so warrant, that, in his opinion, Declaration of Independence and the adopthe publication before them is of the charac tion of the constitution of the United States, ter and tendency attributed to it by the in are John Adams and Theophilus Parsons dictment; and that, if it be so in their opin each of whom was appointed, with the genion, the publication is an offense against the eral approval of the bar and the people, chief law." “The statute was not intended to con Justice of the state; the one, appointed to fine the matter in issue exclusively to the ju that office by the revolutionary government ry without hearing the opinion of the judge, in 1775, resigning it the next year, remaining but to declare that they should be at liberty in the continental congress to support the to exercise their own judgment upon the Declaration of Independence, and afterwards whole matter in issue, after receiving thereup the first vice president and the second presi. on the opinion and directions of the judge." dent of the United States; the other, a lead.


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