mation;-but that, whether the defendant had committed a crime, or not, was no matter of confideration to twelve men, who yet, upon their oaths, were to pronounce their peer guilty, or not guilty. When we hear fuch nonfenfe delivered from the bench, and find it fupported by a laboured train of fophiftry, which a plain understanding is unable to follow, and which an unlearned jury, however it may shock their reason, cannot be fuppofed qualified to refute, can it be wondered that they should return a verdict, perplexed, abfurd, or imperfect?—Lord Manffield has not yet explained to the world, why he accepted of a verdict, which the court afterwards fet afide 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 fent the jury back. I speak advisedly, and am well as fured that no lawyer, of character in Westminfter-hall, will contradict me. To fhew the falfehood of Lord Mansfield's doctrine, it is not neceffary 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, abfurd, illegal, and unconstitutional. If I ftated the merits of my letter to the King, I fhould imitate VOL. I. LORD

a

LORD MANSFIELD, and * TRAVEL OUT OF THE RECORD. When law and reason speak plainly, we do not want authority to direct

The following quotation from a speech delivered by Lord Chatham on the eleventh of December, 1770, is taken with exactness. The reader will find it curious in itself, and very fit to be inferted here. "My Lords, The verdict, given in "Woodfall's trial, was guilty of printing and publishing ONLY; 86 upon which two motions were made in court;-one, in "arreft of judgement, by the defendant's council, grounded 66 upon the ambiguity of the verdict;-the other, by the "council for the crown, for a rule upon the defendant, to "fhew caufe, why the verdict should not be entered up ac"cording to the legal import of the words. On both mo❝tions, a rule was granted, and foon 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 proceed"ings at Nifi Prius, as well the evidence that had been gi“ven, as his own charge to the jury. This proceeding "would have been very proper, had a motion been made of "either fide for a new trial, because either a verdict given 66 contrary to evidence, or an improper charge by the judge at “Nifi Prius, is held to be a sufficient ground for granting a "new trial. But when a motion is made in arrest of judge"ment, or for establishing the verdict, by entering it up ac"cording to the legal import of the words, it must be on the "ground of fomething appearing on the face of the record; and

the court, in confidering whether the verdict fhall be. "established or not, are fo confined to the cord, that they "cannot, take notice of any thing that does not appear on the "face of it; in the legal phrafe, they cannot travel out of the "record. The noble judge did travel out of the record, and I "afarm that his difcourfe was irregular, extrajudicial, and un recedented. His apparent motive, for doing what he

«. knew

our understandings. Yet, for the honour of the profeffion, I am content to oppofe one lawyer to another, efpecially when it happens that the King's Attorney General has virtually disclaimed the doctrine, by which the Chief Justice meant to infure fuccefs to the profecution. The opinion of the plaintiff's council, (however it may be otherwise infignificant) is weighty in the fcale of the defendant.-My Lord Chief Justice De Grey, who filed the information ax officia, 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 Woodfall's council, or easily proved to the fatisfaction of the jury. But Mr. De Grey, far from thinking he fhould acquit himself of his duty by barely proving the facts, entered largely, and I confefs not without ability, into the demerits of the paper, which he called a feditious libel. dwelt but lightly upon those points, which, (according to Lord Mansfield) were the only matter of confideration to the jury. The criminal intent, the libellous matter, the

He

"knew to be wrong, was, that he might have an opportu << nity of telling the public extrajudicially, that the other "three judges concurred in the doctrine laid down in his " charge."

pernicious tendency of the paper itself, were the topics, on which he principally infifted, 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

honeft man fhould ftill be inclined to leave the construction of libels to the court, I would intreat him to confider what a dreadful complication of hardfhips he imposes upon his fellow-subject.—In the first place, the profecution commences by information of an officer of the crown, not by the regular conftitutional mode of indictment before a grand jury.-As the fact is ufually 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 refolute judge; but I will be candid enough to suppose that penalties, fo apparently shock

ing to humanity, would not be hazarded in these times.—In all other criminal profecutions, the jury decides upon the fact and the crime in one word, and the court pronounces a certain fentence, which is the fentence of the law, not of the judge. If Lord Manffield'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 inftance united, of finding guilty, and awarding punish

ment.

BUT, fays this honest Lord Chief Justice, "If the paper be not criminal, the defend"ant," (tho' found guilty by his peers) is in "( no danger, for he may move the court in ar"reft of judgement."-True, my good Lord, but who is to determine upon the motion ? -Is not the court ftill to decide, whether judgement fhall be entered up or not; and is not the defendant this way as effectually deprived of judgement by his peers, as if he were tried in a court of civil law, or in the chambers of the inquifition? It is you, my Lord, who then try the crime, not the jury.