when the inclinations of the people led strongly to an undistinguished opposition to government. Witness the cases of Mr. Wilkes and Mr. Almon. In the late prosecutions of the printers of my address to a great personage, the juries were never fairly dealt with. Lord Chief Justice Mansfield, conscious that the paper in question contained no treasonable or libellous matter, and that the severest parts of it, however painful to the king, or offensive to his servants, were strictly true, would fain have restricted the jury to the finding of special facts, which, as to guilty or not guilty, were merely indifferent. This particular motive, combined with his general purpose to contract the power of juries, will account for the charge he delivered in Woodfall's trial. He told the jury, in so many words, that they had nothing to determine, except the fact of printing and publishing, and whether or no the blanks, or inuendoes, were properly filled up in the information; but that, whether the defendant had committed a crime or not, was no matter of consideration to twelve men, who, yet upon their oaths, were to pronounce their peer guilty, or not guilty. When we hear such nonsense delivered from the bench, and find it supported by a laboured train of sophistry, which a plain understanding is unable to

follow, and which an unlearned jury, however it 7 may shock their reason, cannot be supposed qualified to refute, can it be wondered, that they should return a verdict, perplexed, absurd, or imperfect? Lord Mansfield has not yet explained to the world, why he accepted of a verdict, which the court afterwards set aside as illegal; and which, as it took no notice of the inuendoes, did not even correspond with his own charge. If he had known his duty, he should have sent the jury back. I speak advisedly, and am well assured, that no lawyer of character in Westminsterhall will contradict me. To show the falsehood of Lord Mansfield's doctrine, it is not necessary to enter into the merits of the paper which produced the trial. If every line of it were treason, his charge to the jury would still be false, absurd, illegal, and unconstitutional. If I stated the merits of my letter to the king, I should imitate Lord Mansfield, and travel out of the

7 * The following quotation, from a speech delivered by Lord Chatham on the 11th of December, 1770, is taken with exactness. The reader will find it curious in itself, and very fit to be inserted here. "My lords, the verdict given in Woodfall's trial, was guilty of printing and publishing only; upon which two motions were made in court; one, in arrest of judgment, by the defendant's counsel, grounded upon the ambiguity of the verdict; the other by the counsel for the crown, for a

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record. When law and reason speak plainly, we do not want authority to direct our understandings. Yet, for the honour of the profession, I am content to oppose one lawyer to another; especially when it happens, that the king's attor ney general has virtually disclaimed the doctrine by which the chief justice meant to insure success to the prosecution. The opinion of the

rule upon the defendant, to show cause why the verdict should not be entered up according to the legal import of the words. On both motions a rule was granted, and soon after the matter was argued before the court of King's Bench. The noble judge, when he delivered the opinion of the court upon the verdict, went regularly through the whole of the proceedings at Nisi Prius, as well the evidence that had been given, as his own charge to the jury. This proceeding would have been very proper, had a motion been made of either side for a new trial; because either a verdict given contrary to evidence, or an improper charge by the judge at Nisi Prius, is held to be a sufficient ground for granting a new trial. But when a motion is made in arrest of judgment, or for establishing the verdict by entering it up according to the legal import of the words, it must be on the ground of something appearing on the face of the record; and the court, in considering whether the verdict shall be established or not, are so confined to the record, that they cannot take notice of any thing that does not appear on the face of it; in the legal phrase, they cannot travel out of the record. The noble judge did travel out of the record; and I affirm, that his discourse was irregular, extrajudicial, and unprecedented. His apparent motive for doing what he knew to be wrong was, that he might have an opportunity of telling the public extrajudicially, that the other three judges concurred in the doctrine laid down in his charge."

plaintiff's counsel, however it may be otherwise insignificant, is weighty in the scale of the defendant. My Lord Chief Justice de Grey, who filed the information er officio, is directly with me. If he had concurred in Lord Mansfield's doctrine, the trial must have been a very short one. The facts were either admitted by Mr. Woodfall's counsel, or easily proved to the satisfaction of the jury. But Mr. de Grey, far from thinking he should acquit himself of his duty by barely proving the facts, entered largely, and I confess not without ability, into the demerits of the paper, which he called a seditious libel. He dwelt but light upon those points, which, according to Lord Mansfield, were the only matter of consideration to the jury. The criminal intent, the libellous matter, the pernicious tendency of the paper itself, were the topics on which he principally insisted, and of which, for more than an hour, he tortured his faculties to convince the jury. If he agreed in opinion with Lord Mansfield, his discourse was impertinent, ridiculous, and unreasonable. But, understanding the law as I do, what he said was at least consistent, and to the purpose.

If any honest man should still be inclined to leave the construction of libels to the court, I would intreat him to consider what a dreadful

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complication of hardships he imposes upon his fellow subjects. In the first place, the prosecution commences by information of an officer of the crown, not by the regular constitutional mode of indictment before a grand jury. As the fact is usually admitted, or, in general, can easily be proved, the office of the petty jury is nugatory. The court then judges of the nature and extent of the offence, and determines ad arbitrium the quantum of the punishment, from a small fine to a heavy one, to repeated whipping, to pillory, and unlimited imprisonment. Cutting off ears and noses might still be inflicted by a resolute judge; but I will be candid enough to suppose, that penalties, so apparently shocking to humanity, would not be hazarded in these times. In all other criminal prosecutions, the jury decides upon the fact and the crime in one word; and the court pronounces a certain sentence, which is the sentence of the law, not of the judge. If Lord Mansfield's doctrine be received, the jury must either find a verdict of acquittal, contrary to evidence, which, I can conceive, might be done by very conscientious men, rather than trust a fellow-creature to Lord Mansfield's mercy; or they must leave to the court two offices, never, but in this instance, united, of finding guilty, and awarding punishment.