(though to us the often hidden) relation between effects and causes, which wisdom adjusted from the beginning, and which foreknowledge at the same time rendered sufficient, without disturbing either the laws of nature or of civil society.

The prosperity and greatness of empires ever depended, and ever must depend upon the use their inhabitants make of their reason in devising wise laws, and the spirit and virtue with which they watch over their just execution; and it is impious to suppose, that men who have made no provision for their own happiness or security in their attention to their government, are to be saved by the interposition of Heaven in turning the hearts of their tyrants to protect them.

But if every case in which judges have left the question of libel to juries in opposition to law, is to be considered as a miracle, England may vie with Palestine; and Lord Chief Justice Holt steps next into view as an apostle for that great judge, in Tutchin's case, left the question of libel to the jury in the most unambiguous terms. After summing up the evidence of of writing and publishing, he said to them as follows:

"You have now heard the evidence, and you are to consider whether Mr. Tutchin be guilty. They say they are innocent papers, and no libels, and they say nothing is a libel but what reflects upon some particular person. But this is a very strange doctrine, to say, it is not a libel reflecting on the government, endeavouring to possess the people that the government is maleadministered by corrupt persons, that are employed in such or such stations either in the navy or army.

"To say that corrupt officers are appointed to administer affairs, is certainly a reflection on the government. If people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist. For it is very necessary for all governments that the people should have a good opinion of it: and nothing can be worse

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to any government, than to endeavour to procure animosities, as to the management of it. This has been always looked upon as a crime, and no government can be safe without it be punished."

Having made these observations, did the chief justice tell the jury that whether the publication in question fell within that principle so as to be a libel on government, was a matter of law for the court, with which they had no concern ?-Quite the contrary. He considered the seditious tendency of the paper as a question for their sole determination, saying to them:

"Now you are to consider, whether these words I have read to you, do not tend to beget an ill opinion of the administration of the government? To tell us, that those that are employed know nothing of the matter, and those that do know are not employed. Men are not adapted to offices, but offices to men, out of a particular regard to their interest, and not to their fitness for the places; this is the purport of these papers."

In citing the words of judges in judicature I have a right to suppose their discourse to be pertinent and relevant, and that when they state the defendant's answer to the charge, and make remarks on it, they mean that the jury should exercise a judgment under their direction. This is the practice we must certainly impute to lord Holt, if we do him the justice to suppose that he meant to convey the sentiments which he expressed. So that when we come to sum up this case, I do not find myself so far behind the learned gentleman even in point of express authority; putting all reason, and the analogies of law which unite to support me, wholly out of the question.

There is court of king's bench against court of king's bench; chief justice Wright against chief justice Lee; and lord Holt against lord Raymond. As to living authorities it would be invidious to class them, but it is a point on which I am satisfied myself, and on which the world will be satisfied likewise if ever it comes to be a question.

But even if I should be mistaken in that particular, I cannot consent implicitly to receive any doctrine as the law of England, though pronounced to be such by magistrates the most respectable, if I find it to be in direct violation of the very first principles of English judicature. The great jurisdictions of the country are unalterable but by parliament, and until they are changed by that authority, they ought to remain sacred. The judges have no power over them. What parliamentary abridgment has been made upon the rights of juries since the trial of the bishops, or since Tutchin's case, when they were fully recognised by this court? None. Lord Raymond and lord chief justice Lee ought therefore to have looked there to their predecessors for the law, instead of setting up a new one for their successours.

But supposing the court should deny the legality of all these propositions, or admitting their legality, should resist the conclusions I have drawn from them; then I have recourse to my last proposition, in which I am supported even by all those authorities on which the learned judge relies for the doctrines contained in his charge, to wit:

"That in all cases where the mischievous intention (which is agreed to be the essence of the crime) cannot be collected by simple inference from the fact charged, because the defendant goes into evidence to rebut such inference, the intention becomes then a pure unmixed question of fact, for the consideration of the jury."

I said the authorities of the king against Woodfall and Almon were with me. In the first, which is reported in 5th Burrow, your lordship expressed yourself thus. "Where an act, in itself indifferent, becomes criminal, when done with a particular intent, there the intent must be proved and found. But where the act is itself unlawful (as in the case of a libel) the PROOF of justification or excuse, lies on the defendant; and in failure thereof, the law implies a criminal intent." Most luminously expressed to convey this sentiment, viz. that when a man publishes a

libel, and has nothing to say for himself, no explanation or exculpation, a criminal intention need not be proved. I freely admit that it need not. It is an inference of common sense, not of law. But the publication of a libel does not exclusively show criminal intent, but is only an implication of law, in failure of the defendant's proof. Your lordship immediately afterwards in the same case explained this further. "There may be cases where the publication may be justified or excused as lawful OR INNOCENT; FOR NO FACT WHICH IS NOT CRIMINAL though the paper BE A LIBEL, can amount to such a publication of which a defendant ought to be found guilty. But no question of that kind arose at the trial (i. e. on the trial of Woodfall.) Why? Your lordship immediately explained why. "Because the defendant called no witnesses," expressly saying, that the publication of a libel is not in itself a crime, unless the intent be criminal. And that it is not merely in mitigation of punishment, but that such a publication does not warrant a verdict of guilty.

In the case of the King against Almon, a magazine containing one of Junius's letters, was sold at Almon's shop; there was proof of that sale at the trial. Mr. Almon called no witnesses, and was found guilty. To found a motion for a new trial, an affidavit was offered from Mr. Almon, that he was not privy to the sale, nor knew his name inserted as a publisher; and that this practice of booksellers being inserted as publishers by their correspondents without notice, was common in the trade.

Your lordship said: "Sale of a book in a bookseller's shop, is prima facie evidence of publication by the master, and the publication of a libel is prima facie evidence of criminal intent. It stands good till answered by the defendant. It must stand till contradicted or explained; and if not contradicted, explained, or exculpated, BECOMES tantamount to con.. clusive when the defendant calls no witnesses."

Mr. Justice Aston said, "Prima facie evidence. not answered is sufficient to ground a verdict upon.

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If the defendant had a sufficient excuse, he might have proved it at the trial: his having neglected it where there was no surprise, is no ground for a new one." Mr. Justice Willes, and Mr. Justice Ashhurst agreed upon those express principles.

These cases declare the law beyond all controversy to be, that publication even of a libel, is no conclusive proof of guilt, but only prima facie evidence of it till answered; and that if the defendant can show that his intention was not criminal, he completely rebuts the inference arising from the publication: because though it remains true that he published, yet, according to your lordship's express words, it is not such a publication of which a defendant ought to be found guilty. Apply Mr. Justice Buller's summing up, to this law, and it does not require even a legal apprehension to distinguish the repugnancy.

The advertisement was proved to convince the jury of the Dean's motive for publishing. Mr Jones's testimony went strongly to it, and the evidence to character, though not sufficient in itself, was admissible to be thrown into the scale. But not only no part of this was left to the jury, but the whole of it was expressly removed from their consideration, although in the cases of Woodfall and Almon, it was as expressly laid down to be within their cognizance, and a complete answer to the charge if satisfactory to the minds of the jurors.

In support of the learned judge's charge, there can be therefore but the two arguments, which I stated on moving for the rule: either that the defendant's evidence, namely the advertisement; Mr. Jones's evidence in confirmation of its being bona fide; and the evidence to character, to strengthen that construction, were not sufficient proof that the Dean believed the publication meritorious, and published it in vindication of his honest intentions; or else, that even admitting it to establish that fact, it did not amount to such an exculpation as to be evidence of not guilty, so as to warrant a verdict. I still give the learned judge the choice of the alternative.