This direction of lord Raymond's was fully ratified and adopted in all its extent, and given to the jury, on the present trial, with several others of the same import, as an unerring guide for their conduct; and surely human ingenuity could not frame a more abstract and universal limitation upon their right to acquit the defendant by a general verdict'; for lord Raymond's expressions amount to an absolute denial of the right of the jury, to find the defendant not guilty, if the publication and inuendoes are proved. "Libel or no libel, is a question of law with which you, the jury, have nothing to do." How then can they have any right to give a general verdict consistently with this declaration? can any man in his senses collect that he has a right to decide on that with which he has nothing to do?

But it is needless to comment on these expressions, for the jury were likewise told by the learned judge himself, that if they believed the fact of publication, they were bound to find the defendant guilty; and it will hardly be contended, that a man has a right to refrain from doing that which he is bound to do.

Mr. Cowper, as counsel for the prosecution, took upon him to explain what was meant by this expression; and I seek for no other construction: "The learned judge (said he) did not mean to deny the right of the jury, but only to convey, that there was a religious and moral obligation upon them to refrain from the exercise of it."

Now, if the principle which imposed that obligation had been alleged to be special, applying only to the particular case of the Dean of St. Asaph, and consequently consistent with the right of the jury, to, a more enlarged jurisdiction in other instances, telling the jury that they were bound to convict on proof of publication, might be plausibly construed into a recommendation to refrain from the exercise of their right in that case, and not to a general denial of its existence; but the moment it is recollected, that the principle which bound them was not particular to

the instance; but abstract, and universal, binding alike in every prosecution for a libel, it requires no logick to pronounce the expression to be an absolute, unequivocal, and universal denial of the right. Common sense tells every man, that to speak of a person's right to do a thing which yet in every possible instance where it might be exerted, he is religiously and morally bound not to exert, is not even sophistry, but downright vulgar nonsense.

But, my lord, the jury were not only limited by these modern precedents, which certainly have an existence; but were in my mind limited with still greater effect by the learned judge's declaration, that some of those ancient authorities on which I had principally relied for the establishment of their jurisdiction, had not merely been over-ruled, but were altogether inapplicable, I particularly observed how much ground I lost with the jury, when they were told from the bench, that even in Bushel's case, on which I had so greatly depended, the very reverse of my doctrine had been expressly established; the court having said unanimously in that case, according to the learned judge's state of it, that if the jury be asked what the law is, they cannot say, and having likewise ratified in express terms the maxim, Ad questionem legis non respondent juratores.

My lord, this declaration from the bench, which I confess not a little staggered and surprised me, rendered it my duty to look again into Vaughan, where Bushel's case is reported; I have performed that duty and now take upon me positively to say, that the words of Lord Chief Justice Vaughan, which the learned judge considered as a judgment of the court, deny. ing the jurisdiction of the jury over the law, where a general issue is joined before them, were on the contrary made use of by that learned and excellent person, to expose the fallacy of such a misapplication of the maxim alluded to, by the counsel against Bushel; declaring that it had no reference to any case where the law and the fact were incorporated by the

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plea of not guilty, and confirming the right of the jury to find the law upon every such issue, in terms the most emphatical and expressive. This is manifest from the whole report.

Bushel, one of the jurors on the trial of Penn and Mead, had been committed by the court for finding the defendant not guilty, against the direction of the court in matter of law; and being brought before the court of common pleas by habeas corpus, this cause of commitment appeared upon the face of the return to the writ. It was contended by the counsel against Bushel upon the authority of this maxim, that the commitment was legal, since it appeared by the return, that Bushel had taken upon him to find the law against the direction of the judge, and had been therefore legally imprisoned for that contempt. It was upon that occasion that Chief Justice Vaughan, with the concurrence of the whole court, repeated the maxim, Ad questionem legis non respondent juratores, as cited by the counsel for the crown, but denied the application of it to impose any restraint upon jurors trying any crime upon the general issue. His language is too remarkable to be forgotten, and too plain to be misunderstood. Taking the words of the return to the habeas corpus, viz. "That the jury did acquit against

the direction of the court in matter of law." "These words (said this great lawyer) taken literally and de plano are insignificant and unintelligible; for no issue can be joined of matter of law; no jury can be charged with the trial of matter of law barely; no evidence ever was, or can be given to a jury of what is law or not; nor any oath given to a jury to try matter of law alone, nor can any attaint lie for such a false oath. Therefore we must take off this veil and colour of words, which make a show of being something, but are in fact nothing: for if the meaning of these words, Finding against the direction of the court in matter of law, be, that if the judge, haying heard the evidence given in court (for he knows no other) shall tell the jury upon this evidence, that the law is for the plaintiff or the defendant, and they un

der the pain of fine and imprisonment are to find accordingly, every one sees that the jury is but a troublesome delay, great charge, and of no use in determining right and wrong; which were a strange and new found conclusion, after a trial so celebrated for many hundreds of years in this country."

Lord Chief Justice Vaughan's argument is therefore plainly this. Adverting to the arguments of the counsel, he says, you talk of the maxim Ad questionem legis non respondent juratores, but it has no sort of application to your subject. The words of your return, viz. That Bushel did acquit against the direction of the court in matter of law, is unintelligible, and as applied to the case, impossible. The jury could not be asked in the abstract, what was the law? they could not have an issue of the law joined before them: they could not be sworn to try it. Ad questionem legis non respondent juratores: therefore to say literally and de plano that the jury found the law against the judge's direction is absurd: they could not be in a situation to find it ; an unmixed question of law could not be before them: the judge could not give any positive directions of law upon the trial, for the law can only arise out of facts, and the judge cannot know what the facts are till the jury have given their verdict. Therefore, continued the chief justice, let us take off this veil and colour of words which make a show of being something but are in fact nothing: let us get rid of the fallacy of applying a maxim, which truly describes the jurisdiction of the courts over issues of law, to destroy the jurisdiction of jurors, in cases where law and fact are blended together upon a trial. For if the jury at the trial are bound to receive the law from the judge, every one sees that it is a mere mockery, and of no use in determining right and wrong.

This is the plain common sense of the argument; and it is impossible to suggest a distinction between its application to Bushel's case and to the present; except that the right of imprisoning the jurors was there contended for, in order to enforce obedience to the directions of the judge. But this distinction, if it de

serves the name, though held up by Mr. Bearcroft as very important, is a distinction without a difference. For if according to Vaughan the free agency of the jury over the whole charge, uncontrolled by the judge's direction, constitutes the whole of that ancient mode of trial, it signifies nothing by what means that free agency is destroyed: whether by the imprisonment of conscience or of body; by the operation of their virtues or of their fears: whether they decline exerting their jurisdiction from being told that the exertion of it is a contempt of religious and moral order, or a contempt of the court punishable by imprisonment; their jurisdiction is equally taken away.

My Lord, I should be very sorry improperly to waste the time of the court; but I cannot help repeating once again, that if in consequence of the learned judge's directions, the jury from a just deference to learning and authority, from a nice and modest sense of duty, felt themselves not at liberty to deliver the defendant from the whole indictment; he has not been tried. Because though he was entitled by law to plead generally that he was not guilty; though he did in fact plead it accordingly and went down to trial upon it, yet the jury have not been permitted to try that issue, but have been directed to find at all events a general verdict of guilty; with a positive injunction not to investigate the guilt, or even to listen to any evidence of innocence.

My lord, I cannot help contrasting this trial, with that of Colonel Gordon's but a few sessions past, in London. I had in my hand but this moment, an accurate note of Mr. Baron Eyre's charge to the jury on that occasion; I will not detain the court by looking for it amongst my papers because I believe I can correctly repeat the substance of it.

Earl of Mansfield. The case of the King against Cosmo Gordon.

Mr. Erskine. Yes, my lord: Colonel Gordon was indicted for the murder of General Thomas, whom he had killed in a duel: and the question was, whether