As to the first, viz. whether it showed honest intention in point. of fact, that was a question for the jury. If the learned judge had thought it was not sufficient evidence to warrant the jury's believing that the Dean's motives were such as he had declared them, I conceive he should have given his opinion of it as a point of evidence, and left it there. I cannot condescend to go further. It would be to argue a self evident proposition.

As to the second, viz. that even if the jury had believed from the evidence, that the Dean's intention was wholly innocent, it would not have warranted them in acquitting, and therefore should not have been eft to them upon not guilty; that argument can never be supported. For, if the jury had declared, We find that the Dean published this pamphlet, whether a libel or not we do not find; and we find further, that believing it in his conscience to be meritorious and innocent, he, bona fide, published it with the prefixed advertisement, as a vindication of his character from the seditious intentions, and not to excite sedition," it is impossible to say, without ridicule, that on such a special verdict the court could have pronounced a criminal judgment.

Then why was the consideration of that evidence, by which those facts might have been found, withdrawn from the jury, after they brought in a verdict of guilty of publishing ONLY, which in the King against Woodfall, was only said not to negative the criminal intention, because the defendant called no witnesses? Why did the learned judge confine his inquiries to the inuendos, and finding them agreed in, direct the epithet of guilty, without asking the jury if they believed the defendant's evidence to rebut the criminal inference? Some of them positively meant to negative the criminal inference, by adding the word only, and all would have done it, if they had thought themselves at liberty to enter upon that evidence. But they were told expressly that they had nothing to do with

VOL. II.

the consideration of that evidence, which, if believed, would have warranted that verdict. The conclusion is evident; if they had a right to consider it, and their consideration might have produced such a verdict; and if such a verdict would have been an acquittal, it must be a misdirection.

But," says Mr. Bower, "if this advertisement prefixed to the publication, by which the Dean pro. fessed his innocent intention in publishing it, should have been left to the jury as evidence of that intention, to found an acquittal on, even taking the dialogue to be a libel, no man could ever be convicted of publishing any thing however dangerous: for he would only have to tack an advertisement to it by way of preface, professing the excellence of its principles and the sincerity of his motives, and his defence would be complete."

My lord, I never contended for any such position. If a man of education, like the Dean, were to publish a writing so palpably libellous, that no ignorance or misapprehension imputable to such a person could prevent his discovering the mischievous design of the author, no jury would believe such an advertisement to be bona fide, and would therefore be bound in conscience to reject it, as if it had no existence. The effect of such evidence must be to convince the jury of the defendant's purity of mind, and must therefore depend upon the nature of the writing itself, and all the circumstances attending its publication.

If upon reading the paper and considering the whole of the evidence, they have reason to think that the defendant did not believe it to be illegal, and did not publish it with the seditious purpose charged by the indictment, he is not guilty upon any principle or authority of law, and would have been acquitted even in the star-chamber: for it was held by that court in Lambe's case, in the eighth year of King James the first, as reported by Lord Coke who then presided in it, that every one who should be convicted of a libel, must be the writer or contriver, or a malicious publisher knowing it to be a libel.

This case of Lambe being of too high authority to be opposed, and too much in point to be passed over, Mr. Bower endeavours to avoid its force by giving it a new construction of his own. He says, that not knowing a writing to be a libel, in the sense of that case, means, not knowing the contents of the thing published; as by conveying papers sealed up, or having a sermon and a libel, and delivering one by mistake for the other. In such cases he says, ignorantia facti excusat, because the mind does not go with the act; sed ignorantia legis non excusat: and therefore if the party knows the contents of the paper which he publishes, his mind goes with the act of publication though he does not find out any thing criminal, and he is bound to abide by the legal consequences.

This is to make criminality depend upon the consciousness of an act, and not upon the knowledge of its quality, which would involve lunaticks and children in all the penalties of criminal law: for whatever they do is attended with consciousness, though their understanding does not reach to the consciousness of offence.

The publication of a libel, not believing it to be one after having read it, is a much more favourable case than publishing it unread by mistake. The one nine times in ten, is a culpable negligence which is no excuse at all: for a man cannot throw papers about the world without reading them, and afterwards say he did not know their contents were criminal; but if a man reads a paper, and not believing it to contain any thing seditious, having collected nothing of that tendency himself, publishes it among his neighbours as an innocent and useful work, he cannot be convicted as a criminal publisher. How he is to convince the jury that his purpose was innocent, though the thing published be a libel, must depend upon circumstances; and these circumstances he may on the authority of all the cases ancient and modern, lay before the jury in evidence; because if he can establish the innocence of his mind, he negatives the very gist of the indictment.

"In all crimes," says lord Hale in his pleas of the crown, the intention is the principal consideration. It is the mind that makes the taking of another's goods to be felony, or a bare trespass only. It is impossible to prescribe all the circumstances evidencing a felonious intent, or the contrary; but the same must be left to the attentive consideration of judge and jury; wherein the best rule is in dubiis, rather to incline to acquittal than conviction.

In the same work he says, "By the statute of Philip and Mary, touching importation of coin, counterfeit of foreign money, it must, to make it treason, be the intent to utter and make payment of the same; and the intent in this case may be tried and found by circumstances of FACT, by words, letters, and a thousand evidences besides the bare doing of the fact."

This principle is illustrated by frequent practice, where the intention is found by the jury as a fact in a special verdict.

It occurred not above a year ago, at East Grinstead, on an indictment for burglary, before Mr. Justice Ashurst, where I was myself counsel for the prisoner. It was clear upon the evidence that he had broken into the house by force in the night; but I contended that it appeared from proof, that he had broken and entered with an intent to rescue his goods, which had been seized that day by the officers of excise; which rescue though a capital felony by modern statute, was but a trespass, temp. Henry viii. and conse. quently not a burglary.

*}{ Mr. Justice Ashurst saved this point of law, which the twelve judges afterwards determined for the prisoner; but in order to create the point of law, it was necessary that the prisoner's intention should be ascer. tained as a fact; and for this purpose, the learned judge directed the jury to tell him with what intention they found that the prisoner broke and entered the house, which they did by answering: To rescue his goods," which verdict was recorded.

In the same manner in the case of the king against Pierce, at the Old Baily, the intention was found by the jury as a fact in the special verdict. The prisoner having hired a horse and afterwards sold him, was indicted for felony; but the judges doubting whether it was more than a fraud, unless he originally hired him intending to sell him, recommended it to the jury to find a special verdict, comprehending their judgment of his intention, from the evidence. Here the quality of the act depended on the intention, which intention it was held to be the exclusive province of the jury to determine, before the judges could give the act any legal denomination.

My lord, I am ashamed to have cited so many authorities to establish the first elements of the law, but it has been my fate to find them disputed. The whole mistake arises from confounding criminal with civil cases. If a printer's servant, without his master's consent or privity, inserts a slanderous article against me in his newspaper, I ought not in justice to indict him; and if I do, the jury on such proof should acquit him but it is no defence to an action, for he is responsible to me civiliter for the damage which I have sustained from the newspaper, which is his property. Is there any thing new in this principle? so far from it that every student knows it as applicable to all other cases: but people are resolved from some fatality or other, to distort every every principle of law into nonsense, when they come to apply them to printing; as if none of the rules and maxims which regulate all the transactions of society had any refe rence to it.

If a man rising in his sleep, walks into a china shop, and breaks every thing about him, his being asleep is a complete answer to an indictment for a trespass, but he must answer in an action for every thing he has broken.

If the proprietor of the York coach, though asleep in his bed at that city, has a drunken servant on the box in London, who drives over my leg and breaks it, he is responsible to me in damages for the accident;