fomething like an adversary capable of coping with it. He had, Mr. Fox faid, endeavoured to find out if there was any argument on the other fide of the question; he was perfectly aware, that in matters of law, as indeed in all other matters, great authorities were arguments; but authorities, great as they might be, muft, he faid, fome time or other, clafh with reason, and if the authorities were clear one way, and reafon another, it would produce the greatest of all mischiefs, for reafon muft triumph, and the effect would be, that it would deftroy in future all reverence for authority, and would therefore do away that fpecies of argument.

Thefe

On this fubject, Mr. Fox obferved, there were not small hades of difference of opinion only among eminent lawyers, but they differed according to the common expreffion, toto calo; the opinions of fome being diametrically oppofite to thofe of others. It was the opinion of the Court of King's Bench, that the jury were to find the publication, and inuendos, and that the question of intention was afterwards completely left to the Court; the Court were to confider it in the nature of a special verdict. He found opinions maintained directly the reverfe. He was, Mr. Fox faid, of opinion that many of the things ftated we e matters of fact; but whether they were matters of fact or law, where the general iffue was joined the jury must confider fuch general iffue, and give a verdict compounded of fact and law. opinions, Mr. Fox obferved, were not of modern date; the firit man he apprehended who ftated that opinion, was a perfon of the name of John Lilburn, who immediately after the beheading of Charles I. and during the existence of the commonwealth, was indicted for a treasonable paper. He expreffed himtelf, Mr. Fox faid, truly and properly in principle, though his words were coarfe and his phrafes homely. With regard to his acquital or condemnation, John Lilburn declared the jury were all and every thing; that the judges were mere cyphers, and their duty was folely to register the verdicts of the jury. The reply to John Lilburn's obfervation, was a fpecimen, Mr. Fox remarked, of the temper of the times and the difpofition of thofe days: in aufwer to this, Judge Jermyn, who prefided on that occafion, faid, it was a damnable and blafphemous herefy to call the judges cyphers! Lilburn, however, was acquitted in fpite of the anger of the Judge, and in fpite of the influence of Cromwell. For a long period after that, Mr. Fox obferved, the bufinefs had not been confidered in the way he confidered it, till of late years, and it seemed rather extraordinary that it had so happened. Fere Mr. Fox went through the law and practice refpeing libels in the reigns of Charles II. James II. and part of that of King William. He would, he said, ftate a circum

circumftance that was rather to be looked upon as a conjecture than as a certainty; from the reformation till fome years after the revolution, the jury had only to confider whether fuch a thing was published with or without a licence; if it was published without a licence, it would conftitute a crime; and the Court afterwards confidered the malignity of the offence. He hoped it would not be regarded as cavilling on the fubject, to declare ex vi terminorum, that it appeared a folecifin to say that to a general issue joined, a special verdict fhould be given; it was obvious that the jury muft give a general verdict according to the general iffue. It feemed ftrange to him, Mr. Fox faid, to be told, when he was accufed of feditiously writing a libel, that he ought to plead generally. The law faid, you might plead the general iffue of not guilty. The general iffue of not guilty was pleaded, because in order to any one being guilty, it must be proved that a libel was written, and written by fuch a person. A great deal of ftrefs was to be laid on the word guilty. He did not, Mr. Fox declared, comprehend on what principle the law of England, with all its liberality and justice, could pronounce any man guilty without previous inquiry into his guilt. If any book had been written, and the author had been indicted, he was pronounced guilty, before there -was the leaft guilt proved. Guilt, he contended, must be proved before it could be inferred. Men were not to be convicted on the word guilty, and after the word guilty was pronounced by the law, as it at prefent flood, it were to be determined whether the writing was culpable or meritorious. By going on farther, an argument fuggefted itself to him, which he conceived to be perfectly conclufive on the fubjec, and the ftrength of which was univerfally acknowledged by almost every judge; by Lord Raymond, Mr. Justice Lee, Earl Mansfield, and Mr. J. Buller, with many of whom he differed, viz. that it was in the power of the jury to find, not guilty. He was not, Mr. Fox faid, ignorant that power and right were not convertible terms. But if a power were vefted in any perfon, it was furely meant to be exercised. Mr. Fox mentioned Mr. Juftice Afhhurft, who, in speaking of right and power, obferved, with refpect to power, that a highwayman has the power to rob you, though the deed be a crime against Divine and human laws. Mr. Fox conceived there was a power vefted in the jury to judge of law and fact, as often as they were united; and if the jury were not to be understood to have a right to exercife that power, the conflitution would never have entrusted them with it. That the conftitution fhould have entrusted to the jury a power which was never to have been exercifed, was, he declared, beyond his comprehenfion. He thought it proper to attend

to

to the few arguments which he found on the other fide of the question, and which all went on grounds that struck his mind as different from this, He could not view the law and fact in any other light, as feparate, but as a confufion of ideas in those who granted the first principle, ad queftionem facti non refpondent judices; ad queftionem legis non refpondent juratores.

Mr. Fox begged leave to enquire into this a little: when a man was accused of murder, a crime confifting of law and fact, the jury every day found a verdict of guilty; the jury felt themselves, in that cafe, bound to judge both the law and the fact. How, Mr. Fox afked, did they do this? By the advice of the Judges. Here again, he faid, without cavilling about words, it was fair to infer, that the Judge who advised the jury, advised them only in cafes where they had jurifdiction. If the jurifdiction had been in the Court, and not at all in the jury, the Judge would have prevented the latter from acting altogether, and would have taken the jurifdiction to himfelf, but they knew it was the province of the jury to judge of law and fact; and this was the cafe not of murder only, but of felony, high treafon, and of every other criminal indictment. Libels were the only exception, the fingle anomaly, and if it were fo, it was a great one indeed. When he turned his thoughts towards the decifions of Lord Mansfield, and it was with all the respect and reve. rence due to his character, his doctrine on libels amounted to this to confider a verdict on the cafe of a libel in the nature of a special verdict. In that cafe, therefore, the jury, Mr. Fox faid, were compelled to give a special verdict, which ought to be always matter of choice; but on this they were not left to their choice. There was a very material difference between a special verdict, in the cafe of a libel, and other fpecial verdicts. In the latter cafe, the Court must, he obferved, give its opinion with regard to the law, but in a special verdict for a libel, no fuch thing took place, and there was no neceflity for the Court to give any opinion, unless a motion was made in arreft of judgement. On a special verdict, in the cafe of a libel, judgement followed, unless a motion was made to arreft the judgement; whereas they could not do fo in cafes of murder, or of felony; in fact, they could not do so in any other cafe whatever. Without any declaration from the Court or jury, judgement, it had been held, fhould follow; and in cafes of libels, if what Lord Mansfield faid were true, it did follow. The jury found the publication and inuendos, and yet what, faid Mr. Fox, had been proved against the defendant? Nothing. All that appeared was, that a man had written a book which might be, perhaps, innocent, perhaps meritorious: the Court had paffed

no

no judgement upon it; the jury had given no verdict in it ; but though no guilt had been proved, yet as a motion had not been made in arrest of judgement, he must be punished as a libeller.

Was it, Mr. Fox afked, agreeable to the law of England, that the onus fhould lie on the perfon accufed, to prove his innocence, and not on those who accufed him, to prove his guilt? The arguments on this fubject were chiefly drawn from authorities, and if the Houfe thought it worth their while to go into a Committee, they would find thofe authorities extremely inconclufive. Mr. Fox contended, that if the jury had no jurifdiction over libels, the Counfel became libellers for fpeaking before a tribunal which had no jurifdiction; their eloquent fpeeches to heighten the enormity of the libel charged, on the one hand, and their exculpatory harangues in favour of the delinquent on the other, were not only needlefs but improper. If the Court were found in their law, they would not, he faid, permit fuch pieces of eloquence to be delivered. In the cafe of the King against the Dean of St. Afaph, the Judge ftated, that he fuffered it, in order to fatisfy the minds of ftanders by. When a jury was in a Court of Juftice, in order to enquire into the innocence.or guilt of a man, and they did not enquire into the criminality at all, but only enquired into the fact of publication, the Counsel get up to fpeak on one fide of the queftion; and as that was an irregularity, the Counsel on the other fide muft be indulged with an anfwer; and thus, one irregularity was committed after another, as was fometimes the cafe in that Houfe. Could he believe that Lord Mansfield, whofe integrity as a Judge no man would difpute, fhould fall into opinions fo little fitting his high fituation, and his dignified character! His Lord hip had, Mr. Fox obferved, got into a fituation which there was no defending, without departing from that meeknefs of heart fo peculiar to his Lordship. There was fome fhade of difference, certainly, in the argument betwen that noble Earl and his colleagues. He had, Mr. Fox faid, laid it down throughout, that it was unneceffary to prove malice; at the fame time he agreed, that the defendant, if he bring any witneffes or evidence to rebut the prefumption of guilt which lay againft him, might produce fuch witneffes or evidence, and on that the jury would form their judgement. Mr. Fox wifhed this to be confidered a little; he could not help faying that there appeared to be fomething of confufion in the noble Earl's ideas of that fubject. He did not want proof of the malice, for the publication would be fufficient ground to infer malice or not. In cafe of murder, a man might fay, he did not want any proof of malice, because the fact spoke the malice; but then, let VOL. XXIX. 3 N the

the reafon be stated why proof of malice was not neceffary the fact was, that proof of malice was not wanted, because it was evident that it did exift. What, Mr. Fox afked, was the cafe of libels? No proof was deemed neceffary, but the bare publication was taken to be fufficient proof. He fhould, he said, illustrate, as well as he could, the policy and legality of bringing evidence to rebut a prefumption drawn from this circumstance. A prefumption was not a thing diftin& from proof, but was a fpecies of proof, of proof inconclufive, till the contrary was eftablished. The noble Lord might hear what he pleafed to rebut this. If the jury could hear. the evidence, they must judge of the evidence; they must include a judgement on the prefumption; and they must do that by weighing the prefumption and evidence, and by comparing the one with the other; and therefore, the moment that it was admitted that they could bring evidence to rebut the original prefumption, they muft judge of that prefumption; for they can only judge of the evidence, by comparing it with the prefumption. If, Mr. Fox faid, he were of opinion that the jury could not judge of the innocence or guilt of a paper, he should tell them, they had nothing to do with it.

There was another part of the doctrine of the noble Lord, (Lord Mansfield) which appeared to him ftrange and unaccountable. It was admitted not only in cafes where there were inuendos, but where a libel was fuppofed to be without an inuendo, and where the words were all plain; it was admitted, that if a part of a writing was 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? If the jury had nothing to do with the guilt or innocence of the paper, but were only to give a verdict on the publication, it would be perfectly idle and ridiculous to lay the whole of the evidence before the jury, who, as Lord Raymond emphatically expreffed himself, "had nothing to do with it." All the admiffions made on that fide of the queftion, appeared to fhew its weakness, and nothing remained to be confidered but authority, and that authority he should confider as shortly as poffible. Mr. Fox here confidered the opinion of Lord Holt, in the cafe of the King againft Vere. Lord Holt, and two or three of the other Judges, did expreflv declare their opinion on the ground of the jury having found franditiore et malitiofe, they thought the verdict ought not to be arrested. In the cafe of the King againft Touchin, the opinion of Lord Holt was directly the reverse of what it was in the former cafes, and he left the criminality generally to the jury.