exclusion, and to render it binding on the consciences' of the jury.

After telling them in the very beginning of his charge, that the single question for their decision was, Whether the defendant had published the pamphlet? he declared to them that it was not even allowed to him as the judge trying the cause, to say whether it was or was not a libel: for that if he should say it was no libel, and they following his direction should acquit the defendant; they would thereby deprive the prosecutor of his writ of errour upon the record, which was one of his dearest birthrights. The law, he said, was equal between the prosecutor and the defendant; that a verdict of acquittal would close the matter for ever, depriving him of his appeal; and that whatever, therefore, was upon the record was not for their decision, but might be carried at the pleasure of either party to the house of lords.

Surely language could not convey a limitation upon the right of the jury over the question of libel, or the intention of the publisher, more positive or more universal. It was positive, inasmuch as it held out to them that such a jurisdiction could not be entertained without injustice; and it was universal because the principle had no special application to the particular circumstances of that trial; but subjected every defendant upon every prosecution for a libel, to an inevitable conviction on the mere proof of publishing any thing, though both judge and jury might be convinced that the thing published was innocent and even meritorious.

My Lord, I make this commentary without the hazard of contradiction from any man whose reason is not disordered. For, if the prosecutor in every case, has a birthright by law to have the question of libel left open upon the record, which it can only be by a verdict of conviction on the single fact of publishing, no legal right can at the same time exist in the jury to shut out that question by a verdict of acquittal founded upon the merits of the publication, or the innocent mind of the publisher.

Rights that are repugnant and contradictory cannot be co-existent. The jury can never have a constitutional right to do an act beneficial to the defendant, which when done, deprives the prosecutor of a right which the same constitution has vested in him. No right can belong to one person, the exercise of which in every instance must necessarily work a wrong to another. If the prosecutor of a libel has in every instance the privilege to try the merits of his prosecution before the judges, the jury can have no right in any instance to preclude his appeal to them by a general verdict for the defendant.

The jury therefore from this part of the charge must necessarily have felt themselves absolutely limited (I might say even in their powers) to the fact of publication; because the highest restraint upon good men is to convince them that they cannot break loose from it without injustice: and the power of a good citizen is never more effectually destroyed than when he is made to believe that the exercise of it will be a breach of his duty to the publick, and a violation of the laws of his country.

But since equal justice between the prosecutor and defendant is the pretence for this abridgement of jurisdiction, let us examine a little how it is affected by it.

Do the prosecutor and the defendant really stand upon an equal footing by this mode of proceeding? with what decency this can be alleged, I leave those to answer who know that is only by the indulgence of Mr. Bearcroft, of counsel for the prosecution, that my reverend client is not at this moment in prison*, while we are discussing this notable equality.

Besides, my lord, the judgment of this court, though not final in the constitution, and therefore not binding on the prosecutor, is absolutely conclusive on the defendant. If your lordships pronounce the record to

* Lord Mansfield ordered the Dean to be committed on the motion for the new trial, and said, he had no discretion to suffer him to be at large, without consent, after his appearance in court, on conviction. Upon which, Mr. Bearcroft gave his consent that the Dean should remain at large upon bail.

contain no libel, and arrest the judgment on the verdict, the prosecutor may carry it to the House of Lords: and pending his writ of errour remains untouched by your lordship's decision. But, if judgment be against the defendant, it is only at the discretion of the crown (as it is said) and not of right, that he can prosecute any writ of errour at all; and even if he finds no obstruction in that quarter, it is but at the best an appeal for the benefit of publick liberty, from which he himself can have no personal benefit; for the writ of errour being no supersedeas, the punishment is inflicted on him in the mean time.

In the case of Mr. Horne, this court imprisoned him for publishing a libel upon its own judgment, pending his appeal from its justice; and he had suffered the utmost rigour which the law imposed upon him as a criminal, at the time that the house of lords, with the assistance of the twelve judges of England, were gravely assembled to determine, whether he had been guily of any crime. I do not mention this case as hard or rigorous on Mr. Horne, as an individual: it is the general course of practice; but surely that practice, ought to put an end to this argument of equality between prosecutor and pri

soner.

It is adding insult to injury, to tell an innocent man who is in a dungeon pending his writ of errour, and of whose innocence, both judge and jury were convinced at the trial; that he is in equal scales with his prosecutor, who is at large, because he has an opportunity of deciding after the expiration of his punishment, that the prosecution had been unfounded, and his sufferings unjust.

By parity of reasoning, a prisoner in a capital case is to be hanged in the mean time for the benefit of equal justice; leaving his executors to fight the battle out with his prosecutor upon the record, through every court in the kingdom: by which at last his attainder must be reversed, and the blood of his posterity remain uncorrupted. What justice can be more impartial or equal!

So much for this right of the prosecutor of a libel to compel a jury in every case, generally to convict a defendant on the fact of publication, or to find a special verdict. A right unheard of before since the birth of the constitution; not even founded upon any equality in fact, even if such a shocking parity could exist in law, and not even contended to exist in any other case where private men become the prosecutors of crimes for the ends of publick justice.

It can have, generally speaking, no existence in any prosecution for felony; because the general description of the crime in such indictments, for the most part, shuts out the legal question in the particular instance, from appearing on the record: and for the same reason, it can have no place even in appeals of death, &c. the only cases where prosecutors appear as the avengers of their own private wrongs, and not as the representatives of the crown.

The learned judge proceeded next to establish the same universal limitation upon the power of the jury, from the history of different trials, and the practice of former judges who presided at them. And while I am complaining of what I conceive to be injustice, I must take care not to be unjust myself. I certainly do not, nor ever did consider the learned judge's misdirection in his charge to be peculiar to himself: it was only the resistance of the defendant's evidence, and what passed after the jury returned into court with the verdict, that I ever considered to be a departure from all precedents: the rest had undoubtedly the sanction of several modern cases; and I wish, therefore, to be distinctly understood, that I partly found my motion for a new trial in opposition to these decisions. It is my duty to speak with deference of all the judgments of this court; and I feel an additional respect for some of those I am about to combat, because they are your lordship's: but comparing them with the judgments of your predecessors for ages, which is the highest evidence of English law, I must be forgiven if I presume to question their authority.

My lord, it is necessary that I should take notice of some of them as they occur in thelearned judge's charge; for although he is not responsible for the rectitude of those precedents which he only cited in support of it, yet the defendant is unquestionably entitled to a new trial, if their principles are not ratified by the court; for whenever the learned judge cited precedents to warrant the limitation on the province of the jury imposed by his own authority, it was such an adoption of the doctrines they contained, as made them a rule to the jury in their decision.

The

First then, the learned judge, to overturn my argument with the jury for their jurisdiction over the whole charge, opposed your lordship's established practice for eight and twenty years: and the weight of this great authority was increased by the general manner in which it was stated; for I find no expressions of your lordship's in any of the reported cases which go the length contended for. I find the practice, indeed, fully warranted by them; but I do not meet with the principle which can alone vindicate that practice, fairly and distinctly avowed. learned judge, therefore, referred to the charge of chief justice Raymond, in the case of the king and Franklin, in which the universal limitation contended for, is indeed laid down, not only in the most unequivocal expressions, but the ancient jurisdiction of juries, resting upon all the authorities I have cited, treated as a ridiculous notion which had been just taken up a little before the year 1731; and which no man living had ever dreamt of before. The learned judge observed, that lord Raymond stated to the jury on Franklin's trial, that there were three questions: the first was, the fact of publishing the Craftsman; secondly, whether the averments in the information were true: but that the third, viz. whether it was a libel, was merely a question of law with which the jury had nothing to do, as had been then of late thought by some people who ought to have known better.