treason, or produced as evidence of an overt act of treason be matter of law or of fact? stated upon the record; the case of an indictment for publishing a forged promissory note may be put as a pregnant instance. "The matter of your lordships' first question has no particular application to libel. "We answer, That the criminality or inno 7. "Whether, if a judge on a trial on an indictment or information for a libel, shall give his opinion on the law to the jury, and leave that opinion, together with the evidence of the publication, and the application of the innuen-cence of any act done (which includes any dos to persons and things, to the jury, such direction would be according to law?" "After debate the same were agreed to; "And the said questions were accordingly ordered to be put to the judges. "Ordered, That the further consideration of the said bill be put off to Friday the 4th day of May next; and that the judges do then attend to deliver their opinions upon the said questions. "Mercurii, 2o Maii.-It was moved, That the order made on Friday last, for the further consideration of the bill, intitutled, An Act to remove doubts respecting the functions of Juries in cases of Libel,' on Friday next; and for the judges then to attend to deliver their opinions upon the questions put to them, be now read. "The same was accordingly read by the clerk. "Ordered, That the said order be discharged. "Ordered, That the further consideration of the said bill be put off to Friday the 11th day of this inst. May, and that the judges do then attend to deliver their opinions upon the said questions; and that the lords be summoned. "Veneris, 11° Maii.-The order of the day being read for the further consideration of the bill, intituled, An Act to remove doubts respecting the functions of Juries in cases of Libel; and for the judges to deliver their opinions upon the questions put to them on the 27th of April last : "The lord chief baron of the court of Exchequer [Eyre] delivered the unanimous opinion of the judges upon the said questions; and gave his reasons, which reasons are as follow, videlicet. My lords; the judges have taken the questions seven in number, which your lordships have been pleased to propose to them, into their consideration; they have conferred together, and have agreed upon answers, which I am now to submit to your lordships. "Your lordships' first question is, 'On the trial of an information or indictment for a libel, is the criminality or innocence of the 'paper set forth in such information or indictment as the libel, matter of fact, or matter of law, where no evidence is given for the de'fendant?' “Preliminary to all which we have to offer to your lordships, we state as a fundamental principle, that the general criminal law of England is the law of libel; and that the very few particularities which occur in legal proceedings upon libel, are not peculiar to the proceedings upon libel, but do or may occur in all cases where the corpus delicti is especially paper written) is the result of the judgment which the law pronounces upon that act and 'must therefore be, in all cases and under ail circumstances, matter of law, and not matter ' of fact; and this, as well where evidence is given, as where it is not given for the defendant: the effect of evidence given for the defendant as to this question, being nothing more than to introduce facts or circumstances into the case, which the prosecutor had left out of it, upon which it will still be for the law to pronounce, whether the act done be 'criminal or innocent.' "Your lordships' second question is, 'Is the 'truth or falsehood of the written or printed paper material, or to be left to the jury, on 'the trial of an indictment or information for a libel; and does it make any difference in this ' respect, whether the epithet' false' be or be 'not used in the indictment or information ? "This question consists of two branches. "Our answer to the first branch of this question is, that the truth or falsehood of a written or printed paper is not material, or to be left to a jury, upon the trial of an indictment or information for a libel. "We consider this doctrine as so firmly settled, and so essentially necessary to the maintenace of the king's peace, and the good order of society, that it cannot now be drawn into debate. "If it be asked, why the word false is to be found in indictments or informations for libel? We answer, That we find it in the ancient forms of our legal proceedings, and therefore that it is retained; but that it hath, in alf times, been the duty of judges, when they come to the proof, to separate the substance of the crime from the formality with which it is attended, and too frequently loaded, and to confine the proof to the substance. "The epithet fulse is not applied to the propositions contained in the paper, but to the aggregate criminal result-Libel. We say, falsus libellus, as we say falsus proditor in high treason. "In point of substance, the alteration in the description of the offence would hardly be felt, if the epithet were verus instead of falsus. "In the action for libel, the plaintiff is not put to prove the matter of the libel to be false, which is decisive to show that the falsehood is not part of the substance of the complaint; and though the defendant may insist in his defence, and may prove that the matter of the libel is true, it is not done in the way of contradicting what is asserted by the plaintiff, for then it might be done under the general issue: Whereas if the defendant means to insist that the matter of the libel is true, he must plead it by way of justification. As between him and the plaintiff seeking to recover damages for the private injury, the truth of the matter of the libel is a bar to the action for damages, the crime, and consequently the falsus libellus, remaining still in full force against him. "The second branch of the question is, Does it make any difference in this respect, i. e. in respect of the materiality of the truth or falsehood, or its being to be left to the jury, whether the epithet 'false' be or be not used in the indictment or information ?' “Our answer will be very short. It can make no difference in this respect. We are not called upon to give any opinion, and we desire to be understood, not to give any opinion as to the difference in any other respect which the omission of a formal epithet, in an indictment or information may make. Your lordships' third question is, Upon the trial of an indictment for a libel, the publi'cation being clearly proved, and the inno'cence of the paper being as clearly manifest, is it competent and legal for the judge to direct or recommend to the jury to give a ' verdict for the defendant?' "We answer, That upon the trial of an indictment for a libel, the publication being clearly proved, and the innocence of the paper being as clearly manifest, it is competent and legal for the judge to direct or recommend to the jury to give a verdict for the defendant. But we add, that no case has occurred in which it would have been, in sound discretion, fit for a judge, sitting at Nisi Prius, to have given such a direction or recommendation to the jury. did steal.' The combination must be decomposed by a special verdict, separating the facts from the legal qualities ascribed to them, and presenting them in detail to the eye of the judge, to enable him to declare, whether the legal quality ascribed to them be well ascribed to them or not. "There may be a special verdict in all cases where doubts arise on the matter of law, but it is not necessary in all cases. In some criminal proceedings (the proceedings in libel, and the publication of forged papers, for instance), some of the facts are detailed in the indictment; and if the doubt in law should happen to arise out of the fact so detailed, we say it is upon the record. The question might have been discussed upon demurrer without going to a jury at all; and after verdict it may be discussed on a motion in arrest of judg ment. In such cases a special verdict is not necessary. The verdict guilty' will have the effect of a special verdict, without the expense and delay of it, establishing all the facts, and leaving the question of law open to discussion. "There are three situations in which a defendant, charged with a libel, may stand before a judge and jury in a court of Nisi Prius. First, the matter of law may be doubtful; in that case there ought to be a special verdict, or a verdict which shall operate as a special verdict. Secondly, the case may, in the opinion of the judge, be clear against the defendant. If the verdict is special in form or in effect, he has no reason to complain; his case comes before the Court from which the record is sent, without the prejudice of an authority against him. The third situation is, that the opinion of the judge may be clear in favour of the defendant. In that case, whenever it shall happen, we have offered it as our opinion, that it will be competent and legal for the judge to direct an acquittal. "It is a term in the question, that the innocence shall be clearly manifest. This must be in the opinion of the judge. But the ablest judges have been sometimes decidedly of an opinion which has upon further investigation "Your lordships' fourth question is, Is a been discovered to be erroneous, and it is to ' witness produced before a jury in a trial as be considered, that the effect of such a direc-above, by the plaintiff, for the purpose of tion or recommendation would be, unneces-proving the criminal intentions of the writer, sarily to exclude all further discussion of the matter of law in the court from which the record of Nisi Prius was sent, in Courts of Error, and before your lordships in the dernier resort. “Very clear indeed, therefore, ought to be the case in which such a direction or recommendation shall be given. In a criminal case, which is in any degree doubtful, it must be a very great relief to a judge and jury, and a great ease to them in the administration of criminal justice, to have the means of obtaining a better and fuller investigation of the doubt, upon the solution of which a right verdict, or a right judgment, is to depend. "A special verdict would, in many cases, be the only means where the offence is described by some one or two technical terms comprehending the whole offence, the law and the fact combined; such as the words' feloniously or by the defendant, to rebut the imputation, 'admissible to be heard as a competent wit'ness in such trial before the jury? "This question is put so generally, that we find it impossible to give a direct answer to it. "The criminal intention charged upon the defendant in legal proceedings on libel is generally matter of form, requiring no proof on the part of the prosecutor, and admitting of no proof on the part of the defendant to rebut it. "The crime consists in publishing a libel; a criminal intention in the writer is no part of the definition of the crime of libel at the common law. He who scattereth firebrands, arrows, and death' (which, if not an accurate definition, is a very intelligible description of a libel), is eá ratione criminal; it is not incumbent on the prosecutor to prove his in a tent, and on his part he shall not be heard to be, that the judges must expound or collect say, "Am I not in sport? But inasmuch as the sense of the paper, in order to their dea criminal intention may conduce to the proof claring the operation of it in law. of the publication of all libels, and inasmuch “ The sense of a threatening letter, or of any as the criminal intention is of the substance other words reduced into writing, is nothing of the crime of libel in some cases by statute, more than the meaning which the words do, cases may be put where a witness is com- according to the common acceptation of words, petent and admissible to prove the criminal import, and which every reader will put upon intention on the part of the prosecutor; and them. Judges are in this respect but readers. it may be stated as a general rule, that in all They must read and understand before they cases where a witness is competent and ad- can pronounce upon criminality or innocence, missible to prove the criminal intention, a which it belongs to them to do. It is a newitness will also be competent to rebut the cessary and inseparable incident to their jurisimputation. diction. If they could resort to a jury to in- Your lordships' fifth question is, 'Whether terpret for them in the first instance, who upon the trial of an indictment for sending a shall interpret the interpretation, which, like threatening letter, the meaning of the letter the threatening letter, will be but words upon set forth in the indictment be matter of law a paper? or of fact?' “We shall not be understood to be speaking “We find ourselves embarrassed by the terms of that sense of a paper which is to be colin which this question is proposed to us. We lected from matter dehors the paper, which, find no difficuliy in answering, that the expo- in legal proceedings, must be stated by way of sition of the words of the letter, set forth in averment; which averment would be to be an indictinent for sending a threatening letter, established in point of fact, before the judges would belong to the Court, either on a de- could proceed to construe a paper. On a demurrer, or in an arrest of judgment; and we murrer, or on motion in arrest of judgment, have no difficulty in going a step further, and these averments would stand confessed upon saying, that if a jury upon the trial of such the record. If the general issue is pleadell , an indictment were to find the letter accord- they are to be found by the jury. Judges ing to its tenour, it would be for the Court to have no means of knowing matters of fact expound the letter. dehors the paper, but by the confession of the And whether the letter (the sense of it be- party, or the tinding of the jury; but they ing thus ascertained) be a threatening letter can collect the intrinsic sense and meaning within the meaning of the law, is answered of a paper in the same manner as other reaby our answer to the first question. This we ders do; and they can resort to grammars and siate distinctly to be matter of law; it is the glossaries, if they want such assistance. judgment of the law pronouncing whether “These principles lead to the same concluthe paper be criminal or innocent. sion for juries as for judges, in all points be“ But your lordships ask us, "Whether the longing to threatening letters, or to any other sense of the letter be matter of law, or of series of words reduced into writing, which • fact?' fall within the province of juries. For in“ We find a difficulty in separating the stance: upon a general issue on an indictsense of the letter from the letter; the paper ment for sending a threatening letter, a jury without the sense is not a letter. is to inquire, whether such a paper as the “Whether there exists such a letter is, doubt-paper charged in the indictment exists? They less, matter of fact; as much as, whether it must read, or hear read, and understand the was sent to the prosecutor of the indictment. paper charged, and the paper produced to It is also matter of fact, whether an act of them in evidence, in order to their finding parliament, public or private, exists. And that the paper charged does exist. The the same may be said of every other writing, jury cannot know that they are the same from records of the highest nature down to papers without comparing both the words and any scrap of paper, wherein words are written the sense. But, when the jury have read, which can be qualified with crime or civil ob- and sufficiently understood the paper charged, ligation. This goes no way towards ascer- and the paper produced, so as to be enabled taining what belongs to a jury in an indict- to pronounce that they are the same papers; ment for sending a threatening letter, to which when the averments have been examined anđ we apprehend your lordships' question was in- found to be true; when the context (if there tended to point. be a context not set forth) has been seen, and “The existence of a public act of parliament, understood, and found not to alter the sense your lordships know, is not submitted to a of the paper produced, and to put a different jury at all; private acts and records may be sense upon it than that which the paper sub modo ; other instruments and papers are; charged imports; and when the sending of but all, without exception, are expounded by the supposed threatening letter is found as the judges, and the legal effect of them de- charged, then all inquiry before the jury clared by the judges. ends; the rest is matter of legal conclusion. “ This does not rest merely on the authority “Your lordships' sixth question is, 'Whether, of lawyers; in the nature of things it must on the trial of an indictment for high treason, the criminality or innocence of letters or 'papers set forth as overt acts of treason, or produced as evidence of an overt act of ⚫ treason, be matter of law or of fact?' "We have said in our answer to the first question, that in all cases, and under all cir-jury,' is meant, in any manner, to refer to cumstances, the criminality or innocence of an act done is matter of law, and not of fact. "We find nothing in the two cases now put which should lead us to narrow the generality of that proposition, or to except either of those cases out of it. "But that we may not be misunderstood, we add, that this opinion does not go the length of taking from the jury the application of the evidence to the overt act of which it is evidence. It only tends to fix the legal character of it in the only way in which it can be fixed. And we take this occasion also to observe, that we have offered no opinion to your lordships which will have the effect of taking matter of law out of a general issue, or out of a general verdict. We know that it is often so combined with both, as to be inseparable from them; and we disclaim the folly of endeavouring to prove, that a jury, who can find a general verdict, cannot take upon themselves to deal with matter of law arising in a general issue, and to hazard a verdict made up of the fact, and of the matter of law, according to their conception of the law, against all direction by the judge. "Our aim has been to trace the boundary line between matter of law and fact, as distinctly as we could. We believe that this is all that is necessary to be known. We have found jurors in general desirous of keeping within their province, which is, to examine into matter of fact, and cordially disposed to take their directions in matter of law from those whose education and habits enable them to declare the law, and to whom the law and constitution of the country have committed that important trust. "Your lordships' last question is, 'Whether, if a judge on a trial on an indictment or in⚫formation for a libel, shall give his opinion on the law to the jury, and leave that op:nion together with the evidence of the pub< lication, and the application of the innuendos to persons and things, to the jury, such direction would be according to law?' "If we do not misunderstand this question, it is substantially answered in our answer to the third question. "We mean to answer this question in the "Ordered, That the questions put to the affirmative; but, that we may be clearly un-bill; and the judges' opinions upon the said judges upon the second reading of the said derstood, we desire to be permitted in our answer to substitute the words 'declare the law, instead of give his opinion of the law; and the word declaration' instead of opinion,' where the word opinion occurs again in the question; our answer will then stand thus: 6 "If a judge, on a trial on an indictment, or information for a libel, shall declare the law to the jury, and leave that declaration, toge ther with the evidence of the publication> and the application of innuendos, to persons and things, to the jury, such direction would be according to law. "It by the words 'leave that opinion to the the jury the consideration of what the law is, in any view of the particular case in evidence, we are of opinion, that such a direction would not be according to law; conceiving the law to be, that the judge is to declare to the jury what the law is; and conceiving that it is the duty of the jury, if they will find a general verdict upon the whole matter in issue, to compound that verdict of the fact as it appears in evidence before them, and of the law as it is declared to them by the judge. "We prefaced our answers with stating, that the general criminal law of England was the law of libel. We conclude what we have to offer to your lordships with stating, that the line marked out by the law for the conduct of a jury giving a general verdict, has an universal application to general verdicts on general issues, in all cases civil and criminal; for we cannot distinguish between the office and authority of a jury in civil and criminal cases, whatever difference there may be as to their responsibility. We desire to put your lordships in mind, that it hath been the modern policy to bring almost all questions upon men's dearest and most valuable rights, to be decided on a general issue, and it will be for your lordships' consideration, whether the line we have pointed out, which we take to be established in law and in reason, is not a great and essential security to the life, liberty, and property of all the king's subjects, from the highest to the lowest. “Ordered, That the further consideration of the said bill be put off to Wednesday next; and that the Lords be summoned. order made on Wednesday last, for the further "Lunæ 11° Mari-It was moved, That the consideration of the bill, intituled, An Act to remove doubts respecting the functions of 'Juries in cases of Libel, on Wednesday next, be now read." "The same was accordingly read by the clerk. “Ordered, That the said order be discharged. the said bill, be put off to Friday next; and "Ordered, That the further consideration of that the Lords be summoned. questions, as delivered by the lord chief baron of the Court of Exchequer, be printed. "Veneris 18° Maii.-The order of the day being read for the further consideration of the bill, intituled, An Act to remove doubts re"specting the functions of Juries in cases of Libel; and for the Lords to be summoned: "It was moved, That the said bill be now 'read a second time.' "The said bill was accordingly read a setime. "Then it was moved, That the said bill be committed to a committee of the whole 'House.' "Which being objected to; "Dissentient 1st. "Because the rule laid down by the bill, contrary to the unanimous opinion of the judges, and the unvaried practice of ages, subverts a fundamental and important principle of English jurisprudence; which leaving to the jury the trial of the fact, reserves to the Court the decision of the law. It was truly said by lord Hardwicke, in the court of King's-bench, that, if these come to be conac-founded, it will prove the confusion aud destruction of the law of England. "After debate; it was moved, That the 'further consideration of the said bill, and ⚫ debate thereupon, be adjourned to Monday next; and that the Lords be summoned.' "The same was agreed to, and ordered cordingly. « Lunæ, 21° Maii 1792.-The order of the day being read for the further consideration of the bill, intituled, An Act to remove doubts respecting the functions of Juries in 'cases of Libel;' and the adjourned debate thereupon; and for the Lords to be summoned. "The House proceeded to take the said bill into further consideration. "After long debate, the question was put, Whether the said bill shall be committed? It was resolved in the affirmative. "Ordered, That the said bill be committed to a committee of the whole House. "Ordered, That the House be put into a committee upon the said bill on Friday next. “Veneris, 25° Maii.-The order of the day being read for the House to be put into a committee upon the bill, intituled, An Act to ' remove doubts respecting the functions of "Juries in cases of Libel,' "Ordered, That the House be put into a committee upon the said bill on Friday next. « Veneris, 1o Junii.-The order of the day being read, for the House to be put into a committee upon the bill, intituled, An Act 'to remove doubts respecting the functions of Juries in cases of Libel,' The House was adjourned during pleasure, and put into a committee upon the said bill. "After some time, the House was resumed: and the lord Cathcart reported from the committee, That they had gone through the bill, ' and directed him to report the same to the 'House, without any amendment.' « Martis, 5° Junii.-Ordered, that the bill, intituled, An Act to remove doubts respecting the functions of Juries in cases of Libel,' be read the third time on Monday next; and that the Lords be summoned. "Lunæ 11° Junii.-The order of the day being read for the third reading of the bill, intituled, An Act to remove doubts respect'ing the functions of Juries in cases of Libel;' and for the Lords to be summoned : The said bill was accordingly read the third time. "Moved, "That the bill do pass.' "Which being objected to; "After debate, the question was put, Whether this bill shall pass?' "It was resolved in the affirmative, VOL. XXII. whether the matter of a record be sufficient, 3rd. "Because by confining the rule to an mitted that it does not apply to the trial of indictment or information for a libel, it is adlibel, or any sort of action, or any other sort of the general issue in an action for the same indictment or information: but as the same principle and the same rule must apply to all general issues, or to none, the rule as declared by the bill is manifestly erroneous. "THURLOW. C. BATHURST. "WALSINGHAM. JOHN, BANGOR." "A message was sent to the House of Comand Mr. Spranger]: mons by the former messengers [Mr. Eames agreed to the said bill without any amend"To acquaint them, That the Lords have ment. "An Act to remove doubts respecting the functions of Juries in cases of Libel. "Whereas doubts have arisen, whether on the trial of an indictment or information for issue or issues are joined between the king the making or publishing any libel, where an and the defendant or defendants, on the plea of not guilty pleaded, it be competent to the jury impanelled to try the same to give their verdict upon the whole matter in issue: Be it therefore declared and enacted by the king's most excellent majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons in this present parliament assembled, and by the authority of the same, that on every such trial the jury sworn to try the issue may give a general verdict of Guilty or Not Guilty upon the whole matter put in issue upon such indict * Waren: See his case in this Collection, A. D. 1796, post. X |