if the jury were satisfied of that fact, the prisoner was to be convicted of murder?

That was according to Forster, as much a question of law, as libel or no libel: but Mr. Baron Eyre did not therefore feel himself at liberty to withdraw it from the jury. After stating (greatly to his honour) the hard condition of the prisoner, who was brought to a trial for life, in a case where the positive law and the prevailing manners of the times were so strongly in opposition to one another, that he was afraid the punishment of individuals would never be able to beat down an offence so sanctioned; he addressed the jury nearly in these words: "Nevertheless, gentlemen, I am bound to declare to you, what the law is as applied to this case, in all the different views in which it can be considered by you upon the evidence. Of this law and of the facts as you shall find them, your verdict must be compounded, and I persuade myself that it will be such a one as to give satisfaction to your own consciences,"

Now, if Mr. Baron Eyre, instead of telling the jury that a duel, however fairly and honourably fought, was a murder by the law of England, and leaving them to find a general verdict under that direction, had said to them, that whether such a duel was murder or manslaughter, was a question with which neither he nor they had any thing to do, and on which he should therefore deliver no opinion, and had directed them to find that the prisoner was guilty of killing the deceased in a deliberate duel, telling them, that the court would settle the rest; that would have been directly consonant to the case of the Dean of St. Asaph. By this direction, the prisoner would have been in the hands of the court, and the judges, not the jury, would have decided upon the life of Colonel Gordon.

But the two learned judges differ most essentially indeed.

Mr. Baron Eyre conceives himself bound in duty to state the law as applied to the particular facts, and to leave it to the jury.

Mr. Justice Buller says, he is not bound nor even 'allowed so to state or apply it, and withdraws it entirely from their consideration.

Mr. Baron Eyre tells the jury that their verdict is to be compounded of the fact and the law.

.. Mr. Justice Buller on the contrary, that it is to be confined to the fact only, the law being the exclusive province of the court.

My lord, it is not for me to settle differences of opinion between the judges of England, nor to pronounce which of them is wrong: but since they are contradictory and inconsistent, I may hazard the assertion that they cannot both be right: the authorities which I have cited, and the general sense of mankind which settles every thing else, must determine the rest.

1

My lord, I come now to a very important part of the case, untouched I believe before in any of the arguments on this occasion.

I mean to contend, that the learned judge's charge to the jury cannot be supported even upon its own principles; for, supposing the court to be of opinion that all I have said in opposition to these principles is inconclusive, and that the question of libel, and the intention of the publisher were properly withdrawn from the consideration of the jury, still I think I can make it appear that such a judgment would only render the misdirection more palpable and striking.

I may safely assume, that the learned judge must have meant to direct the jury either to find a general or a special verdict; or to speak more generally, that one of those two verdicts must be the object of every charge: for I venture to affirm, that neither the records of the courts, the reports of their proceedings, nor the writings of lawyers, furnish any account of a third. There can be no middle verdict between both; the jury must either try the whole issue generally, or find the facts specially, referring the legal conclusion to the court.

I may affirm with equal certainty, that the general verdict, ex vi termini, is universally as compreheń-sive as the issue, and that consequently such a verdict on an indictment, upon the general issue, not guilty. universally and unavoidably involves a judgment of law, as well as fact; because the charge comprehends both, and the verdict, as has been said, is co-extensive with it. Both Coke and Littleton, give this precise definition of a general verdict; for they both say, that if the jury will find the law, they may do it by a general verdict, which is ever as large as the issue. If this be so, it follows by necessary consequence, that if the judge means to direct the jury to find generally against a defendant, he must leave to their consideration every thing which goes to the constitution of such a general verdict, and is therefore bound to permit them to come to, and to direct them how to form that general conclusion from the law and the fact, which is involved in the term guilty. For it is ridiculous to say, that guilty is a fact, it is a conclusion in law from a fact, and therefore can have no place in a special verdict, where the legal conclusion is left to the court.

In this case the defendant is charged, not with having published this pamphlet, but with having published a certain false, scandalous, and seditious libel, with a seditious and rebellious intention. He pleads that he is not guilty in manner and form as he is accused which plea is admitted on all hands to be a denial of the whole charge, and consequently does not merely put in issue, the fact of publishing the pamphlet, but the truth of the whole indictment, that is, the publication of the libel set forth in it with the intention charged by it.

When this issue comes down for trial, the jury must either find the whole charge or a part of it; and admitting for argument sake, that the judge has a right to dictate either of these two courses, he is undoubtedly bound in law to make his direction to the jury conformable to the one or the other. If he means to confine the jury to the fact of publishing, considering

the guilt of the defendant to be a legal conclusion for the court to draw from that fact, specially found on the record: he ought to direct the jury to find that fact without affixing the epithet of guilty to the finding. But if he will have a general verdict of guilty, which involves a judgment of law as well as fact, he must leave the law to the consideration of the jury. For when the word guilty is pronounced by them, it is so well understood to comprehend every thing charged by the indictment, that the associate or his clerk instantly records, that the defendant is guilty in manner and form as he is accused; that is, not simply that he has published the pamphlet contained in the indictment; but that he is guilty of publishing the libel with the wicked intentions charged on him by the record.

Now, if this effect of a general verdict of guilty is reflected on for a moment, the misdirection of directing one upon the bare fact of publishing, will appear in the most glaring colours. The learned judge says to the jury: Whether this be a libel is not for your consideration; I can give no opinion on that subject without injustice to the prosecutor; and as to what Mr. Jones swore concerning the defendant's motives for the publication, that is likewise not before you: for, if you are satisfied in point of fact that the defendant published this pamphlet, you are bound to find him guilty. Why guilty, my lord, when the consideration of guilt is withdrawn? He confines the jury to the finding of a fact, and enjoins them to leave the legal conclusion from it to the court; yet, instead of directing them to make that fact the subject of a special verdict, he desires them in the same breath to find a general one; to draw the conclusion without any attention to the premises to pronounce a verdict which upon theface of the record includes a judgment upon their oaths that the paper is a libel, and that the publisher's intentions in publishing it were wicked and seditious, although neither the one nor the other made any part of their consideration.

My lord, such a verdict is a monster in law, without precedent in former times, or root in the constitution. If it be true, on the principle of the charge itself, that the fact of publication was all that the jury were to find, and all that was necessary to establish the defendant's guilt, if the thing published be a libel; why was not that fact found like all other facts upon special verdicts? Why was an epithet, which is a legal conclusion from the fact, extorted from a jury who were restrained from forming it themselves? The verdict must be taken to be general or special : if general, it has found the whole issue without a coextensive examination. If special, the word guilty, which is a conclusion from facts, can have no place in it.

Either this word guilty is operative or unessential; an epithet of substance, or of form. It is impossible to controvert that proposition, and I give the gentlemen their choice of the alternative. If they admit it to be operative and of real substance, or, to speak more plainly, that the fact of publication found specially, without the epithet of guilty, would have been an imperfect verdict inconclusive of the defendant's -guilt, and on which no judgment could have followed; then it is impossible to deny that the defendant has suffered injustice, because such an admission confesses that a criminal conclusion from a fact has been obtained from the jury, without permitting them to exercise that judgment which might have led them to a conclusion of innocence: and that the word guilty has been obtained from them at the trial as a mere matter of form, although the verdict without it, stating only the fact of publication which they were directed to find, to which they thought the finding alone related, and beyond which they never enlarged their inquiry, would have been an absolute verdict of acquittal.

If, on the other hand, to avoid this inseparable objection to the charge, the word guilty is to be reduced to a mere word of form, and it is to be contended. that the fact of publication found specially would have