Mr. Fox obferved, that when a man was accufed of murder, a crime confifting of law and fact, the jury every day found a verdict of guilty; and this was alfo the cafe in felony, high treafon, and every other criminal indictment. Libels were the only exception, the fingle anomaly. He contended, that if the jury had no jurifdiction over libels, the counfel were libellers for fpeaking before a tribunal which had no jurifdiction. When a jury was in a court of juftice, and they did not enquire into the criminality at all, but only into the fact of publication, the counfel addreffing them on either fide as to the criminality was a farcafm. There was another part of the doctrine of libels which appeared unaccountable-It was admitted, that if a part of the writing were libellous, and another part not libellous, they had a right to bring the whole before the jury in evidence. Mr. Fox afked, on what principle the jury were to look at the whole, but that they might know whether the paper was libellous or not? In 1731, in the time of lord Raymond, the prefent doctrine of libels was introduced; but he hoped that no man would contend that it ought to be law. It was a fyltem fo vicious and untenable, that in the practice of this reign, and of lord Mansfield himself, it was not adhered to. In the cafe of the king againft Horne, lord Mansfield had faid, "that it was a matter for the judgment of the jury, and that they were to decide on the criminality."

Mr. Fox faid he had hitherto confidered the fubject as relating to libels, and to libels only. He meant to ftate it with regard to a matter of ftill higher importance, with regard to high treafon. He believed it was admitted on all hands, that a writing might be an overt act of

treafon. In this cafe, if the court of king's bench were to fay to the jury-" Confider only whether the criminal publifhed the paper; do not confider the nature of it; do not confider whether it be treafonable or not:" would Englishmen endure that death fhould be inflicted without a jury having had an oppor tunity of delivering their fentiments, whether the individual was or was' not guilty of the crime with which he was charged?-Mr. Fox wished to know whether the modern doctrine of libels did or did not extend to high treafon? Having fhewn that the law of libels was contrary to the original principles of law, Mr. Fox faid, when he would fuggeft a remedy for thefe evils, he found himfelf incapable of doing it without the affiftance of the house." If the committee were clear as to the law on the subject, their wifeft and moft proper measure would be to enact a declaratory law refpecting it: but if they were of opinion that high authorities on the other fide made the law doubtful, they might fettle the law for the future without any reference to what it had been in times paft.

Having finished the fubject of libels, Mr. Fox wished to call the attention of the house to another fubject of great importance. By a ftatute of queen Anne, for regulating proceedings by quo warranto, every corporator might inform himfelf of the corporate fituation of any burgefs of the fame borough, Any private man might make his application; and, according to a late opinion, the court has a diferetionary power of granting or refufing it. According to another opinion, the court had no fuch difcretion; but the former opinion was the belt. The court of king's bench had endeavoured to frame a rule to guide their difcre

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tion, and lord Mansfield had laid down twenty years as the fpace of time after which no application should be made to difturb men in their franchifes: but about two terms ago the king's bench had greatly fhortened the period within which people might apply for fuch informations, and determined that after fix years a man should never be called in queftion on the subject.

There was, however, another ferious view in which this matter might be taken into coplideration. The attorney-general could of authority move for fuch informations; and though private perfons were confined within fix years, the king's attorneygeneral was fubject to no fuch in convenience, being wholly unlimited in point of time. It always happened that the king's miniiters were more or lefs concerued in elections; and confequently the attorney-gene-. ral might move for a great many informations against thofe who were not friendly to him or his aflociates. This, Mr. Fox faid, was an immenfe additional weight to the preroga tive of the crown, and might prove extremely dangerous to the liberty of the people. The remedy he meant to propofe appeared perfectly unexceptionable. He thought there ought to be a ftatute regulating the conduct of the king's bench with regard to the granting of fuch informations, and giving double colts in cafes of frivolous applications.

Reverting to the cafe of libels, Mr. Fox faid there was one great and popular topic, which he had purpolely omitted-viz. the doctrine, "that truth was not only not a juftification, but a libel was more a libel because it was true." With refpect to this quellion, he should not meddle with it, because he conceived it to be a molt difficult queftion. To fay that truth was not fome

times a juftification, would be very extraordinary indeed; and yet there were fome cafes in which it might be even an aggravation, Suppofe a man, for inftance, had any perfonal defect or misfortune, any thing dif agreeable about his body, or was unfortunate in any of his relations, and that thefe evils were repeatedly brought forward with the malicious intent of expofing him to the ridicule of the world-would any man tell him that in cafes of that fort truth was not rather an aggravation? On the other hand, in questions relating to public men, verity with refpect to public meafures ought to be held a complete juftification of the libel, if a libel it could be called in that fituation. He conceived, therefore, that the best way would be to permit every defendant to prove the truth of a libel, if he thought proper; and then to confider what effect it ought to have, whether it amounted to a juftification or otherwife, and to let it affect the judgment either way and in proportion.

There were two or three great fprings, Mr. Fox faid, upon which the conftitution turned. He thought he faw, among many minuter pieces of political mechanifm, the two most important or main fprings of the conftitution; viz. the reprefentation of the people through the medium of that houfe, and the juridical power of the people through the medium. of juries: and it appeared to him, that if even the other parts of the fyftem fell into diforder, yet if thefe main fprings were preferved in full vigour, the reft might be repaired; but if thefe gave way, all the reit muft fall completely to deftruction. The right of the trial by jury could not be complete, unless, in every criminal cafe where the law and fact were mixed, the jury were to be the

judges;

judges, and unless the intention was to be decided by the jury, and not by men who could only judge by means of books, and many fubtleties and diftinctions, but could never find out the heart of man, and diftinguish between his actions.

Such were the mott important general arguments urged by Mr. Fox upon this occafion; and they were ably feconded by Mr. Erikine. Among a variety of legal and political arguments ftated by this gentleman, he divided libels into three claffes—ift, those which were fubjects of civil action; as thofe which affected lives, property, or liberty, or which occafioned any actual da mage-2dly, thofe which were punifhable by indictment, which included all that might in any way disturb the public peace-and, 3dly, those which had a tendency to fow fedition. The law of libels by civil actions was as ancient as the law itfelf-Reputation ought to be fecured by law. The conftitution, he obferved, had made a difference between civil and criminal cafes. A learned judge had afferted, that they were to apply the fame rules in both cafes. But in order to fhew the power that was given to the judges in a civil cafe, it was entered upon the record; and they afterwards were entitled, if it fhould not meet with their approbation, to fet afide the verdict of the jury. But in a criminal cafe, though it was ftated upon the record, it was neceflary to afk leave of the people; and the jury, if they pleafed, might throw out the bill, Law and fact, Mr. Erskine faid, were kept as much afunder by our conftitution, as night and day in the fyftem of nature: matters of property were wifely deemed too intricate for the decifion of a jury; but crimes, whofe guilt confifted in their intention, were pe

culiarly fitted for their confideration, and could only properly be ascer, tained by their verdict. In cafes of property, a new trial might be moved for; but if the jury fhould acquit a criminal, not even the king. could afterwards attaint him.

Mr. Erfkine ftated, that by the prefent fyftem of things, by merely entering the word literatim upon the record, a man might be hanged by the attorney-general for high trifon. In fuch an exercife of autho rity as this, he faid, there was an end of the protection of juries. Ia the prefent way of treating libels, the judge fays to the jury-" If you find the publication, you are bound to find him guilty; if we find him not guilty of a libel, there may then be an arreft of judgment." But fhould he, as counfel for the defendant, move an arreft of judgment, upon the plea that there was no libel, the judges would anfwer," that the jury had already found the ma. licious intention."-In an enlightened age, the abfurdity of the cafe was aftonishing. In the inftance of a duel, where the alternative was that the individual fhould be banifhed from fociety, or expofe himfelf to the hazard of taking away the life of another, at an equal risk of his own, the crime was murder; yet, during the courfe of his experience, in fuch an-inftance, murder had never been found. It was how-, ever in the power of the attorneygeneral to render it murder, by putting literatim on the record. If the defendant fhall appear guilty of ail thofe facts by the verdict, he mutt be found guilty; but if there fhall be afterwards difcovered to have exifted no malicious intention, judgment might be arrested.

The attorney-general and the chancellor of the exchequer perfectly coincided with the principle

of

of what Mr. Fox and Mr. Erfkine had flated; but objected to a committee of justice, as it might feem to convey an undeferved cenfure on the exifting courts. On their recommendation, therefore, Mr. Fox confented to withdraw his motion, and to substitute in its place a motion for leave to bring in two bills, one" to remote all doubts refpecting the right and functions of juries in criminal cafes," and the other "to explain and amend the act of the ninth year of queen Anne, c. 20, relative to quo warrantos.”

On the 25th of May, Mr. Fox introduced his bill concerning the rights of juries, and, with a flight oppofition from the legal profeffion, it completed its progrefs through the house of commons, with the lofs of its preamble. In the houfe of lords, however, where the influence of the law is more predominant, it experienced a very different reception. It was on the 8th of June that the fecond reading was moved for in that house, when it met with a warm oppofition from the lord chancellor, who alleged that the purpose of thofe who had introduced the bill was not anfwered by it as fully as they wifhed; and faid, that, confidering the ftate of the feffion, and the great importance of the bill, he should move that the bill fhould be read a-second time on that day month.

So extraordinary a motion, unfupported by any fingle objection against the bill, excited the aitonishment of earl Stanhope. His lordship faid, it was incumbent on that houfe to protect the people of this country from fuck arrogance, fuch ufurpation as had been frequently exercifed by judges in their conduct towards juries. The queftion, he added, was neither more nor lefs than this Whether they were to have a trial

by jury, or a jurisdiction as deteftable as the ftar-chamber itself? Four points, he faid, ought to be decided by the jury-ift, the fact of publication-2d, the fenfe of the thing published-3d, the law which made it criminal-and, 4th, the criminal intention. Criminal intention, he obferved, confifted of two partsft, the intention of publishing a thing-and, zdly, the criminality of the thing publifhed; and it appeared to his lordfhip, that the leaving thefe points to be decided by a jury, was what conftituted the difference between this country now, and at the period when it was governed by a tar-chamber; between this country' in its prefent ftate, and those countries where tyranny was exercised, and defpotifm prevailed.

Lord Camden defended the principle of the bill with a noble fund of conftitutional doctrine. He faid, after the bill was paffed, the law of the land would ftand juft where it did before. A jury, he afferted, had a right, in deciding on a libel, to judge whether it was criminal or not; and juries not only poffeffed that right, but had exercifed it in various inftances. With regard to those papers called feditious libels, there had been various opinions; but he conceived that the principal caufe of complaint refpecting libels had been owing to the directions of fome judges, who had told the jury that "they had nothing to try but the publication and the innuendocs:" and this, he faid, he had always thought contrary to the law of the land. If their lordships meant to bring in a bill to fay that the cafe of libels fhould not reft with the jury, they ought to fpeak out, and declare that it ought to reft with the judges. It must remain either with the judges or the jury; at prefent he conceived it was the province

of the jury, The licentioufnefs of the prefs, his lordfhip faid, was an abomination; they felt it daily, and could not reprefs it; but the reafon was, because the law was not well understood.

Lord Loughborough declared himfelf alfo friendly to the principle of the bill; but, for the fatisfaction of others, was willing to give way to the propofed poftponement of it to another feffion.

Lord Grenville concurred with lord Loughborough, in what he had faid relative to the propriety of poftponing the bill; but protefted against the idea going forth that adminiftration were hoftile to it, or unfriendly to the rights of juries.

The bill was defended in a very able manner by the marquis of Lanfdowne. His lordship observed, that upwards of twenty years ago, a bill of the fame nature was introduced, which was negatived, merely on the ground that the law then flood ex actly as the bill meant to establish it, and therefore the bill was unneceffary. He remembered, he faid, a time when profecutions of the prefs were extremely frequent, and yet public animadverfion had never enjoyed a fuller fcope than at that period. The marquis conceived it highly juftifiable to canvas, in every form, public meafures and public men; but confeffed that the licentioufnefs of the prefs had been carried to a moft fcandalous excefs in at tacking private character. To his certain knowledge too, public negociations had more than once fuffered from publications meddling with fubjects of which the authors were completely ignorant; or, what was worle, were fet on by mercantile men, for mercantile purpofes. He himself, he faid, had never condefeended to commence a profecution for a libel. He declared he never

wished to fee the liberty of the pref curtailed, but only its licentiousness; and on this principle was a friend to the bill, because it would give them a diftinct trial by jury. If the whole power was lodged in a jury, and if the profecutor could expect no favour from the great man on the bench, a profecution for a libel, inftead of being confidered as mean, would be accounted honourable, when the greatest and first men in the country fubmitted themselves to the judgment of a jury. It is almost unneceflary, after what we have premifed, to add that the lord chancellor's motion was carried, and the bill confequently poftponed to a future feffion.

In our preceding volume we noticed the progress which had been made in the important queftion relative to the abolition of the flave trade. Early in the feffion of 1791, Mr. Wilberforce gave notice of an intended motion for appointing a committee for receiving and examining evidence on that fubject; and on the 4th of February he fubmitted a motion to that effect, which was oppofed by colonel Tarleton and others, on the frivolous ground that there were many other objects on which we might exercile our philanthropy; and which was ably fupported by Mr. Burke, on the principle that the argument was abfurd; that, because there were feveral acts of charity to be performed, we ought to neglect the one in hand; and that, on the contrary, the beft mode of getting through the acts of charity neceffary to be performed, was to bring that firft to an end which was begun. After a fhort debate, the motion of Mr. Wilberforce for a committee above ftairs was put and carried.

It was not however till the 18th of April, that the bufinefs was in

fuch