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judges always conducted themselves on trials of this sort, as the learned judge conducts himself to day, considering the jury as open to all the arguments of the defendants counsel. And particularly in the case of Owen, who was acquitted against the direction of the court, the present lord Camden addressed the jury, not as I am addressing you, but with all the eloquence for which he is so justly celebrated.

The practice, therefore, of these great judges is a sufficient answer to their opinions. For if it be the law of England, that the jury cannot decide on the question of libel, the same law ought to extend its authority to prevent their being told by counsel that they may.

There is, indeed, no end to the absurdities which such a doctrine involves. For suppose that this prosecutor, instead of indicting my reverend friend for publishing this dialogue, had indicted him for publishing the bible, beginning at the first book of Genesis, and ending at the end of the Revelations, without the addition or subtraction of a letter, and without an innuendo to point out a libellous application, only putting in at the beginning of the indictment that he published it with a blasphemous intention. On the trial for such a publication, Mr. Bearcroft would gravely say: "Gentlemen of the jury, you must certainly find by your verdict, that the defendant is guilty of this indictment; that is, guilty of publishing the bible with the intentions charged by it. be sure, every body will laugh when they hear it, and the conviction can do him no possible harm; for the court of king's bench will determine that it is not a libel, and he will be discharged from the consequences of the verdict."

To

Gentlemen, I defy the most ingenious man living to make a distinction between that case and the present; and in this way you are desired to sport with your oaths, by pronouncing my reverend friend to be a criminal without either determining yourselves, or having a determination, or even an insinuatiou from

the judge that any crime has been admitted; following strictly that famous and respectable precedent of Radamanthus, judge of hell, who punishes first, and afterwards institutes an inquiry into the guilt.

But it seems your verdict would be no punishment if, judgment on it was afterwards arrested. I am sure, if I thought the Dean so lost to sensibility as to feel no punishment, he should find another counsel to defend him. But I know his nature better. I know that conscious as he is of his own purity, he would leave this court hanging down his head in sorrow, if he were held out by your verdict a seditious subject, and a disturber of the peace of his country; and that he would feel the arrest of judgment, which would follow in the term upon his formal appearance in court as a criminal, to be a cruel insult upon his innocence, rather than a triumph over the unjust prosecutors of his pretended guilt.

Let me, therefore, conclude, with reminding you, gentlemen, that if you find the defendant guilty, not believing that the thing published is a libel, or that the intention of the publisher was seditious, your verdict and your opinion will be at variance, and it will then be between God and your own consciences to reconcile the contradiction.

As the friend of my client, and the friend of my country, I shall feel much sorrow, and you yourselves will probably hereafter regret it, when the season of reparation is fled. But why should I indulge such unpleasant apprehensions, when in reality I fear nothing? I know it is impossible for English gentlemen, sitting in the place you do, to pronounce this to be a seditious paper; much less upon the bare fact of publication, explained by the prefixed advertisement, and the defendant's general character and deportment, to give credit to that seditious purpose which is necessary to convert the publication even of a libel itself into a crime.

I beg pardon of my lord, and of you, gentlemen, for the long time I have trespassed upon your indulgent and patient attention; nothing, indeed, but the duty I owe my client could have induced me to do it, after the fatigue I have sustained in a very long journey to appear before you.

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THE ARGUMENT

OF THE HON. THOMAS ERSKINE,

IN THE COURT OF KING'S BENCH, WESMINSTER, ON THE FIFTEENTH OF NOVEMBER, 1784, IN SHOWING CAUSE WHY A NEW TRIAL SHOULD BE GRANTED TO THE DEAN OF ST. ASAPH.*

I AM now to have the honour to address myself to your lordship, in support of the rule granted to me by the court upon Monday last, which, as Mr. Bearcroft has truly said, and seemed to mark the observation with peculiar emphasis, is a rule for a new trial. Much of my argument, according to his notion, points another way; whether its direction be true, or its force adequate to the object, it is now my business to show.

In rising to speak at this time, I feel all the advantage conferred by the reply over those whose arguments are to be answered; but I feel a disadvantage likewise which must suggest itself to every intelligent mind.

In following the objections of so many learned persons, offered in different arrangements upon a subject so complicated and comprehensive, there is much danger of being drawn from that method and order which can alone fasten conviction upon unwilling minds, or drive them from the shelter which ingenuity never fails to find in the labyrinth of a desultory discourse.

* Vide preface to the preceding speech.

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