Oldalképek
PDF
ePub

But, says this honest lord chief justice, “If the paper be not criminal, the defendant, though found guilty by his peers, is in no danger, for he may move the court in arrest of judgment." True, my good lord, but who is to determine upon the motion? Is not the court still to decide, whether judgment shall be entered up or nót? and is not the defendant this way as effectually deprived of judgment by his peers, as if he were tried in a court of civil law, or in the chambers of the inquisition? It is you, my lord, who then try the crime, not the jury. As to the probable effect of the motion in arrest of judgment, I shall only observe, that no reasonable man would be so eager to possess himself of the invidious power of inflicting punishment, if he were not predetermined to make use of it.

Again:—We are told that judge and jury have n a distinct office ;--that the jury is to find the faet, and the judge to deliver the law. De jure respondent judices, de facto jurati. The dictum is true, though not in the sense given to it by Lord Mansfield. The jury are undoubtedly to determine the fact, that is, whether the defendant did or did not commit the crime charged against him. The judge pronounces the sentence an

nexed by law to that fact so found; and if, in the course of the trial, any question of law arises, both the counsel and the jury must, of necessity, appeal to the judge, and leave it to his decision An exception, or plea in bar, may be allowed by the court; but, when issue is joined, and the jury have received their charge, it is not possible, in the nature of things, for them to separate the law from the fact, unless they think proper to return a special verdict.

It has also been alleged, that, although a common jury are sufficient to determine a plain matter of fact, they are not qualified to comprehend the meaning, or to judge of the tendency of a seditious libel. In answer to this objection, (which, if well founded, would prove nothing as to the strict right of returning a general verdict,) I might safely deny the truth of the assertion. Englishmen of that rank, from which juries are usually taken, are not so illiterate as (to serve a particular purpose) they are now represented.

Or, admitting the fact, let a special jury be sum7 moned in all cases of difficulty and importance,

and the objection is removed. But the truth is, that if a paper, supposed to be a libel upon government, be so obscurely worded, that twelve

common men cannot possibly see the seditious meaning and tendency of it, it is in effect no libel. It cannot inslame the minds of the people, nor alienate their affections from government; for they no more understand what it means, than if it were published in a language unknown to them.

Upon the whole matter, it appears, to my understanding, clear beyond a doubt, that if, in any future prosecution for a seditious libel, the jury should bring in a verdict of acquittal not warranted by the evidence, it will be owing to the false and absurd doctrines laid down by Lord Mansfield. Disgusted at the odious artifices made use of by the judge to mislead and perplex them, guarded against his sophistry, and convinced of the falsehood of his assertions, they may perhaps determine to thwart his detestable pupose,

and defeat him at any rate. To him at least they will do substantial justice. Whereas, if the whole charge laid in the information be fairly and honestly submitted to the jury, there is no reason whatsoever to presume, that twelve men, upon their oaths, will not decide impartially between the king and the defendant. The numerous instances, in our state-trials, of verdicts recovered for the king, sufficiently refute the false and scandalous imputations thrown by the abettors of

Lord Mansfield upon the integrity of juries: But even admitting the supposition, that in times of universal discontent, arising from the notorious mal-administration of public affairs, a seditious writer should escape punishment, it makes nothing against my general argument. If juries are fallible, to what other tribunal shall we appeal? If juries cannot safely be trusted, shall we unite the offices of judge and jury, so wisely divided by the constitution, and trust implicitly to Lord Mansfield? Are the judges of the court of King's Bench more likely to be unbiassed and impartial, than twelve yeomen, burgesses, or gentlemen, taken indifferently from the country at large? Or, in short, shall there be no decision, until we have instituted a tribunal, from which no possible abuse or inconvenience whatsoever can arise?-If I am not grossly mistaken, these questions carry a decisive answer along with them.

Having cleared the freedom of the press from a restraint equally unnecessary and illegal, I return to the use which has been made of it in the present publication.

National reflections, I confess, are not justified in theory, nor upon any general principles. Το know how well they are deserved, and how justly

[ocr errors]

they have been applied, we must have the evidence of facts before us. We must be conversant with the Scots in private life, and observe their principles of acting to us and to each other; the characteristic prudence, the selfish nationality, the indefatigable smile, the persevering assiduity, the everlasting profession of a discreet and moderate resentment. If the instance were not too important for an experiment, it might not be amiss to confide a little in their integrity. Without any abstract reasoning upon causes and effects, we shall soon be convinced by experience, that the Scots, transplanted from their own country, are always a distinct and separate body from the people who receive them. In other settlements, they only love themselves; in England, they cordially love themselves, and as cordially hate their neighbours. For the remainder of their good qualities, I must appeal to the reader's observation, unless he will accept of

my Lord Barrington's authority. In a letter to the late Lord Melcombe, published by Mr. Lee, he expresses himself with a truth and accuracy not very common in his lordship’s lucubrations: “And Cockburn, like most of his countrymen, is as abject to those above him, as he is insolent to those below him.” I am far from meaning

« ElőzőTovább »