be a libel, the defendant is fully convicted; because the verdict does not merely find that he published, which is a finding consisting with innocence, but finds him GUILTY of publishing, which is a finding of the criminal publication charged by the indictment.

My lord, how I shall be able to defend my innocent client against such an argument, I am not prepared to say. I feel all the weight of it; but that feeling surely entitles me to greater attention, when I complain of that which subjects him to it, without the warrant of the law. It is the weight of such an argument that entitles me to a new trial; for the Dean of St. Asaph is not only found guilty, without any investigation of his guilt by the jury, but without that question being even open to your lordships on the record. Upon the record the court can only say the dialogue is, or is not a libel; but if it should pronounce it to be one, the criminal intention of the defendant in publishing it is taken for granted by the word guilty; although it has not only not been tried, but evidently appears from the verdict itself, not to have been found by the jury. Their verdict is, "guilty of publishing, but whether a libel or not they do not find." And it is therefore impossible to say that they can have found a criminal motive in publishing a paper, on the criminality of which they have formed no judgment. Printing and publishing that which is legal, contains in it no crime; the guilt must arise from the publication of a libel; and there is therefore a palpable repugnancy on the face of the verdict itself, which first finds the Dean guilty of publishing, and then renders the finding a nullity, by pronouncing ignorance in the jury whether the thing published comprehends any guilt.

To conclude this part of the subject, the epithet of guilty (as I set out with at first) must either be taken to be substance, or form. If it be substance, and as such, conclusive of the criminal intention of the publisher, should the thing published be hereafter adjudged to be a libel; I ask a new trial, because the defendant's guilt in that respect has been found with

out being tried. If on the other hand, the word GUILTY is admitted to be but a word of form, then let it be expunged, and I am not hurt by the verdict.

Having now established, according to my two first. propositions, that the jury upon every general issue, joined in a criminal case, have a constitutional jurisdiction over the whole charge, I am next in support of my third, to contend, that the case of a libel forms no legal exception to the general principles which govern the trial of all other crimes, that the argument for the difference, viz. because the whole charge always appears on the record, is false in fact, and that even if true, it would form no substantial difference in law.

As to the first, I still maintain that the whole case does by no means necessarily appear on the record. The crown may indict part of the publication, which may bear a criminal construction when separated from the context, and the context omitted having no place in the indictment, the defendant can neither demur to it, nor arrest the judgment after a verdict of guilty'; because the court is absolutely circumscribed by what appears on the record, and the record contains a legal charge of a libel.

I maintain likewise, that according to the principles adopted upon this trial, he is equally shut out from such defence before the jury: for though he may read the explanatory context in evidence, yet he can derive no advantage from reading it, if they are tied down to find him guilty of publishing the matter which is contained in the indictment, however its innocence may be established by a view of the whole work. The only operation which looking at the context can have upon a jury is, to convince them that the matter upon the record, however libellous when taken by itself, was not intended to convey the meaning which the words indicted import in language, when separated from the general scope of the writing: but upon the principle contended for, they could not acquit the defendant upon any such opinion, for that would be to take upon them the prohibited question

of libel, which is said to be matter of law for the

court.

My learned friend Mr. Bearcroft, appealed to his audience with an air of triumph, whether any sober man could believe, that an English jury, in the case I put from Algernon Sidney, would convict a defendant of publishing the Bible, should the crown indict a member of a verse which was blasphemous in itself if separated from the context. My lord, if my friend had attended to me, he would have found that in considering such supposition as an absurdity, he was only repeating my own words. I never supposed that a jury would act so wickedly, or so absurdly, in a case where the principle contended for by my friend Mr. Bearcroft, carried so palpable a face of injustice, as in the instance which I selected to expose it; and which I therefore selected to show that there were cases in which the supporters of the doctrine were ashamed of it, and obliged to deny its operation: for it is impossible to deny that if the jury can look at the context in the case put by Sidney, and acquit the defendant on the merits of the thing published, they may do it in cases which will directly operate against the principle he seems to support. This will appear from other instances, where the injustice is equal, but not equally striking.

Suppose the crown were to select some passage from Locke upon government, as for instance, "that there was no difference between the king and the constable when either of them exceeded their authority." That assertion under certain circumstances, if taken by itself without the context, might be highly seditious, and the question therefore would be quo animo it was written: perhaps the real meaning of the sentence might not be discoverable by the immediate context without a view of the whole chapter, perhaps of the whole book: therefore to do justice to the defendant, upon the very principle by which Mr. Bearcroft in answering Sidney's case can alone acquit the publisher of his bible, the jury must look into the whole essay on government, and form a judgment of

the design of the author, and the meaning of his work.

Lord Mansfield. To be sure they may judge from the whole work.

Mr. Erskine. And what is this, my lord, but determining the question of libel which is denied to day? for if a jury may acquit the publisher of any part of Mr. Locke on government, from a judg ment arising out of a view of the whole book, though there be no inuendos to be filled up as facts in the indictment what is it that bound the jury to convict the Dean of St. Asaph, as the publisher of Sir William Jones's dialogue, on the bare fact of publication, without the right of saying that his observations as well as Mr. Locke's were speculative, abstract, and legal?

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Lord Mansfield. They certainly may in all cases into the whole context.

Mr. Erskine. And why may they go into the context? Clearly, my lord, to enable them to form a correct judgment of the meaning of the part indicted, even though no particular meaning be submitted to them by averments in the indictment, and therefore the very permission to look at the context for such a purpose (where there are no inuendos to be filled up by them as facts) is a palpable admission of all I am contending for; viz. the right of the jury to judge of the merits of the paper, and the intention of its author.

But it is said that though a jury have a right to decide that a paper, criminal as far as it appears on the record, is nevertheless legal when explained by the whole work of which it is a part; yet that they shall have no right to say that the whole work itself, if it happens to be all indicted, is innocent and legal. This proposition, my lord, upon the bare stating of it, seems too preposterous to be seriously entertained; yet there is no alternative between maintaining it in its full extent, and abandoning the whole argument.

If the defendant is indicted for publishing part of the verse in the psalms, "There is no God," it is as».

serted that the jury may look at the context, and seeing that the whole verse did not maintain that blasphemous proposition, but only that the fool had said so in his heart, may acquit the defendant upon a judgment that it is no libel, to impute such imagination to à fool: but if the whole verse had been indicted, viz. the fool has said in his heart there is no God:" the jury on the principle contended for, would be re strained from the same judgment of its legality, but must convict of blasphemy on the fact of publishing, leaving the question of libel untouched on the re

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cord.

If in the same manner, only part of this very dialogue had been indicted instead of the whole, it is said even by your lordship, that the jury might have read the context, and then, notwithstanding the fact of publishing, might have collected from the whole, its abstract and speculative nature, and have acquitted the defendant upon that judgment of it; and yet it is contended that they have no right to form the same judgment of it upon the present occasion, although the whole be before them upon the face of the indictment; but are bound to convict the defendant upon the fact of publishing, notwithstanding they should have come to the same judgment of its legality which it is admitted they might have come to on trying an indictment for the publication of a part. Really, my lord, the absurdities and gross departures from reason, which must be hazarded to support this doctrine are endless.

The criminality of the paper is said to be a question of law, yet the meaning of it, from which alone the legal interpretation can arise, is admitted to be a question of fact. If the text be so perplexed and dubious as to require inuendos to explain, to point, and to apply obscure expression or construction, the jury alone as judges of fact, are to interpret and to say what sentiments the author must have meant to convey by his writing; yet if the writing be so plain and intelligible as to require no averments of its meaning, it then becomes so obscure and mysterious as to