ground that this was no question for them to decide-that they were bound to find the defendant guilty if they believed he had caused it to be published, and that it was "of and concerning the King and his government"-leaving him to move the court in arrest of judgment, or to bring a writ of error if its sen timents and language were claimed to be innocent. Mr. Erskine, for the defendant, argued the question to the jury on the supposition of their having a right to judge whether it was a libel or not. But Mr. Justice Buller charged the jury in accordance with the claim of Mr. Bearcroft, telling them, as Lord Mansfield had done in the case of Woodfall, that they must bring in the defendant guilty if they were satisfied he had published the tract, leaving the question whether it was libelous or not for the court to decide. The jury, however, gave their verdict “guilty of publishing only,” which would have been tan tamount to an acquittal. But the Judge having objected strongly to this finding, the jury withdrew, and returned with a verdict, "Guilty of publishing, but whether a libel or not we do not find."

In Michaelmas term following, November 8th, 1784, Mr. Erskine moved for a new trial on the ground of misdirection on the part of the judge. A rule nisi having been granted, the case came on for argu ment on the 15th, when he made the following speech. Lord Campbell says, "Erskine's addresses t the court in moving, and afterward in supporting his rule, display beyond all comparison the most per sect union of argument and eloquence ever exhibited in Westminster Hall. He laid down five proposi tions most logically framed and connected-which, if true, completely established his case-and he supported them with a depth of learning which would have done honor to Selden or Hale, while he was animated by an enthusiasm which was peculiarly his own. Though appealing to judges who heard him with aversion or indifference, he was as spirited as if the decision had depended on a favorable jury, whose feelings were entirely under his control. So thoroughly had he mastered the subject, and so clear lid he make it, that he captivated alike old black-letter lawyers and statesmen of taste and refinement.” -Lives of the Lord Chancellors, vol. vi., 433-4.

The following are the five propositions mentioned by Lord Campbell, which had been previously de ivered to the judges in nearly the same terms:

I. "That when a bill of indictment is found, or an information filed, charging any crime or misdemeanor rown to the law of England, and the party accused puts himself upon the country by pleading the gen val issue-Not Guilty; the jury are GENERALLY charged with his deliverance from that CRIME, and not ZCIALLY from the fact or facts, in the commission of which the indictment or information charges the crime consist; much less from any single fact, to the exclusion of others charged upon the same record." I. "That no act, which the law in its general theory holds to be criminal constitutes in itself a crime, alsacted from the mischievous intention of the actor; and that the intention (even where it becomes a simple inference of legal reason from a fact established) may and ought to be collected by the JURY. with Judge's assistance; because the act charged, though established as a fact in a trial on the gen. eral issue, does not necessarily and unavoidably establish the criminal intention by any abstract conclu sion of lathe establishment of the fact being still no more than full evidence of the crime, but not the crimo itself; unless the jury render it so themselves, by referring it voluntarily to the court by special verdict." III. "That the case of a libel forms no legal exception to the general principles which govern the trial of all other cimes; that the argument for the difference, namely, because the whole charge [in the prosecation for a libe] always appears on the record-is false in fact, and that, even if true, it would form no substantial diffence in law."

IV. "That where a writing indicted as a libel neither contains, nor is averred by the indictment to contain, any slander ɔ an individual (so as to fall within those rules of law which protect personal reputa tion), but whose criamality is charged to consist (as in the present instance) in its tendency to stir up general discontent-the trial of such an indictment neither involves, nor can in its obvious nature involve, any abstract question of law for the judgment of a court, but must wholly depend upon the judgment of the jury on the tendency of the writing itself to produce such consequences, when connected with all the circumstances which attendea its publication."

V. "That in all cases where the mischievous intention (which is agreed to be the essence of the crime) can not be collected by simple interence from the fact charged, because the defendant goes into evidence to rebut such inference, the intention then becomes a pure, unmixed question of fact, for the considera tion of the jury."

This speech has a peculiar interest for the lawyer, but the general reader will be amply repaid for giving it the closest attention. The young orator of any profession will find the study of it one of the best means of mental discipline, and will rise from the perusal of it with increased admiration of Lord Erskine as a logician and an orator.

SPEECH, &c.

I AM now to have the honor to address myself | rule for a new trial. Much of my argument, acto your Lordship in support of the rule granted cording to his notion, points another way; whethto me by the court upon Monday last; which, er its direction be true, or its force adequate to as Mr. Bearcroft has truly said, and seemed to the object, it is now my business to show. mark the observation with peculiar emphasis, is a In rising to speak at this time, I feel all the

ment

ositions.

neither do nor were intended to con- Restatement
vey any other sentiment than this, of these prop
namely, that in all cases where the
law either directs or permits a person accused
of a crime to throw himself upon a jury for de-
liverance, by pleading generally that he is not
guilty; the JURY, thus legally appealed to, may
deliver him from the accusation by a general
verdict of acquittal founded (as in common sense
it evidently must be) upon an INVESTIGATION as
general and comprehensive as the charge itself
from which it is a general deliverance.

advantage conferred by the reply over those | sition to the plain understanding of the world, Wecemity of a Whose arguments are to be answered; der of arg but I feel a disadvantage likewise, which must suggest itself to every intelligent mind. In following the objections of so many learned persons, offered under 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. The sense of that danger, and my own inability to struggle against it, led me originally to deliver up to the court certain written and maturely considered PROPOSITIONS, from the establishment of which I resolved not to depart, nor to be removed, either in substance or in order, in any stage of the proceedings, and by which I must therefore this day unquestionably stand or fall.

evading its

Pursuing this system, I am vulnerable two Only two pos ways, and in two ways only. Either Bible modes of it must be shown that my propositions force. are not valid in law, or, admitting their validity, that the learned judge's charge to the jury at Shrewsbury was not repugnant to them: there can be no other possible objections to my application for a new trial. My duty today is, therefore, obvious and simple: it is, first, to re-maintain those propositions, and then to show that the charge delivered to the jury at Shrewsbury was founded upon the absolute denial and reprobation of them.

itations on the rights of juries from original

de

Having said this, I freely confess to the cour that I am much at a loss for any fur- The recent lin ther illustration of my subject, because I can not find any matter by which it might be further illustrated, usage. so clear or so indisputable, either in fact or in law, as the very proposition itself upon which this trial has been brought into question. Looking back upon the ancient Constitution, and examining with painful research the original jurisdictions of the country, I am utterly at a loss to imagine from what sources these novel limitations of the rights of juries are derived. Even the bar is not yet trained to the discipline of maintaining them. My learned friend Mr. Bearcroft' solemnly abjures them. He repeats to-day what he avowed at the trial, and is even jealous of the imputation of having meant less than he expressed. For, when speaking this Concession of morning of the right of the jury to opposing coun judge of the whole charge, your LordI. I begin, therefore, by saying again, in my ship corrected his expression, by telling him he Fon Prop. own original words, That when a bill meant the power, and not the right; he caught of indictment is found, or an informa-instantly at your words, disavowed your explation filed, charging any crime or misdemeanor known to the law of England, and the party accused puts himself upon the country by pleading the general issue-not guilty; the jury are GENERALLY charged with his deliverance from that crime, and not SPECIALLY from the fact or facts, in the commission of which the indictment or information charges the crime to consist; much less from any single fact, to the exclusion of oth-inding a GENERAL verdict, which must be reers charged upon the same record.

osition.

Second

II. That no act, which the law in its general theory holds to be criminal, constitutes Proposition in itself a crime, abstracted from the mischievous intention of the actor; and that the intention (even where it becomes a simple inference of legal reasons from a fact or facts established), may and ought to be collected by the JURY, with the judge's assistance; because the act charged, though established as a fact in a trial on the general issue, does not necessarily and unavoidably establish the criminal intention by any abstract conclusion of the law: the establishment of the fact being still no more than full evidence of the crime, but not the crime itself; unless the jury render it so themselves, by referring it voluntarily to the court by special verdict. These two propositions, though worded with cautious precision, and in technical language, to prevent the subtlety of legal disputation in oppo

TT

sel.

nation, and, with a consistency which does him honor, declared his adherence to his original admission in its full and obvious extent. "I did not mean," said he, "merely to acknowledge that the jury have the power, for their power nobody ever doubted. If a judge was to tell them they had it not, they would only have to laugh at him, and convince him of his error, by

corded: I meant, therefore, to consider it as a
right, as an important privilege, and of great
value to the Constitution." Thus Mr. Bearcroft
and I are perfectly agreed; I never contended
for more than he has voluntarily conceded. I
have now his express authority for repeating, in
my own former words, that the jury have not
merely the power to acquit, upon a view of the
whole charge, without control or punishment,
and without the possibility of their acquittal be-
ing annulled by any other authority; but that
they have a constitutional, legal right to do it;
a right fit to be exercised; and intended, by the
wise founders of the government, to be a protec-
tion to the lives and liberties of Englishmen.
against the encroachments and perversions of
authority in the hands of fixed magistrates.
But this candid admission on the part of Mr

One of the counsel for the prosecution.

The court hav. ing expressed another opia

tion claimed.

Bearcroft, though very honorable to himself, is of no importance to me; since, from what has already fallen from your on, their atten Lordship, I am not to expect a ratification of it from the court; it is therefore my duty to establish it. I feel all the importance of my subject, and nothing shall lead me to-day to go out of it. I claim all the attention of the court, and the right to state every authority which applies, in my judgment, to the argument, without being supposed to introduce them for other purposes than my duty to my client and the Constitution of my country warrants and approves.

It is not very usual, in an English court of justice, to be driven back to the ear

The right of a

on the law as well as facts in the case, an original princi

jurisprudence.

no further than to summon thearors, to compel their attendance, ministerially to regulate their proceedings, and to enforce their decisions. And even where he was specially empowered by the King's writ of justicies3 to proceed in causes of superior value, no judicial authority was thereby conferred upon himself, but only a more enlarged jurisdiction ON THE JURORS, who were to try the cause mentioned in the writ. It is true that the sheriff can not now intermeddle in pleas of the Crown; but with this exception, which brings no restrictions on juries, these jurisdictions remain untouched at this day intricacies of prop erty have introduced other forms of proceeding but the Constitution is the same.

Court of Will iam the Con

This popular judicature was not confined to particular districts, or to inferior suits (3) The King' and misdemeanors, but pervaded the whole legal Constitution. For, when queror. the Conqueror, to increase the influence of his crown, erected that great superintending court of justice in his own palace to receive appeals criminal and civil from every court in the kingdom, and placed at the head of it the capitalis justiciarius totius Anglia [Chief Justiciary of all England], of whose original authority the Chief Justice of this court is but a partial and feeble emanation: even that great magistrate was in the Aula Regis [King's Court] merely ministerial; every one of the King's tenants, who owed him service in right of a barony, had a seat and a voice in that high tribunal; and the office of justiciar was but to record and to enforce their judg ments.*

jury to decide liest history and original elements of the Constitution, in order to establish the first principles which mark ple of English and distinguish English law: they are always assumed, and, like axioms in science, are made the foundations of reasoning without being proved. Of this sort our ancestors, for many centuries, must have conceived the right of an English jury to decide upon every question which the forms of the law submitted to their final decision; since, though they have immemorially exercised that supreme jurisdiction, we find no trace in any of the ancient books of its ever being brought into question. It is but as yesterday, when compared with the age of the law itself, that judges, unwarranted by any former judgments of their predecessors, without any new commission from the Crown, or enlargement of judicial authority In the reign of King Edward the First, when from the Legislature, have sough, to fasten a this great office was abolished, and the (4) The House limitation upon the rights and privileges of ju- present courts at Westminster estab- of Lords as a rors, totally unknown in ancient times, and pal-lished by a distribution of its powers,5 pably destructive of the very end and object of their institution.

No fact, my Lord, is of more easy demonstration; for the history and laws of a free country lie open, even to vulgar inspection.

est courts, both Baron

During the whole Saxon era, and even long (1.) The low after the establishment of the Norman government, the whole administration and Leet. of justice, criminal and civil, was in the hands of the people, without the control or intervention of any judicial authority, delegated to fixed magistrates by the Crown. The tenants of every manor administered civil justice to one another in the Court Baron of their Lord; and their crimes were judged of in the Leet, every suitor of the manor giving his voice as a juror, and the steward being only the registrar, and not the judge.

court.

the barons preserved that supreme superintend ing jurisdiction which never belonged to the Justiciar, but to themselves only as the jurors in the King's Court-a jurisdiction which, when nobility, from being territorial and feudal, became personal and honorary, was assumed and exer

The Writ of Justicies was a writ directed to

the sheriff in some special cases, by virtue of which he might hold plea of debt in his county court for a large sum, whereas, by his ordinary power, he was limited to sums under forty shillings.

The King's Court was composed of the Chiet Justiciary, the Chancellor, the Constable, Marshal, Chamberlain, Steward, and Treasurer, with any oth Exchequer, in which all revenue matters were trans ers whom the King might appoint. The Court of acted, formed a branch of this court. The Chief Justiciary was the greatest subject in England: besides presiding in the King's Court, and in the Ex chequer, he was originally, by virtue of his office, the Regent of the kingdom during the absence of the Sovereign.

5 Though Edward settled the jurisdiction of the

several courts, the separation of the Exchequer first, and afterward the Common Pleas, from the King's Court, took place long before. The detachment of the latter had its beginning, in Madox's opinion, as early as in the reign of Richard the First; but it was completely established by the Magna Charts of 17 John, and then first made stationary at Westminster

There are four capital distinctions between prosecutions for crimes and civil actions, every one of which deserves consideration:

First, in the jurisdiction necessary to found the

charge.

Secondly, in the manner of the defendant's pleading it.

Thirdly, in the authority of the verdict which discharges him.

Jurisdiction.

the judges. By this arrangement, no power was
ever given to the jury, by an issue joined before
them, but when a right of decision, as compre-
hensive as the issue, went along with it. If a de-
fendant in such civil actions pleaded the genera!
issue instead of a special plea, aiming at a generai
deliverance from the charge, by showing his jus
tification to the jury at the trial, the court pro
tected its own jurisdiction, by refusing all evi
dence of the facts on which such justification was
founded. The extension of the general issue be.
yond its ancient limits, and in deviation from its
true principle, has, indeed, introduced some con-
fusion into this simple and harmonious system,
but the law is substantially the same.
No man.

preserved, can possibly get at the opinion of a jury upon any question not intended by the Constitution for their decision. In actions of debt, detinue, breach of covenant, trespass, or replevin, the defendant can only submit the mere fact to the jury, the law must be pleaded to the court. If, dreading the opinion of the judges, he conceals his justification under the cover of a general plea, in hopes of a more favorable construction of his

Fourthly, in the independence and security of the jury from all the consequences in giving it. (1.) As to the first, it is unnecessary to remind your Lordships that, in a civil case, the party who conceives himself aggrieved states his complaint to the court-avails himself at his own pleasure of its process-compels at this day, in any of those actions where the anan answer from the defendant by its authority—cient forms of our jurisprudence are still wisely or, taking the charge pro confesso against him on his default, is entitled to final judgment and execution for his debt, without any interposition of a jury. But in criminal cases it is otherwise; the court has no cognizance of them, without leave from the people forming a grand inquest. If a man were to commit a capital offense in the face of all the judges of England, their united authority could not put him upon his trial. They could file no complaint against him, even upon the rec-defense at the trial, its very existence can never ords of the supreme criminal court, but could only commit him for safe custody, which is equally competent to every common justice of the peace. The grand jury alone could arraign him, and in their discretion might likewise finally discharge him, by throwing out the bill, the names of all your Lordships as witnesses on the back of By imposing this necessity of pleading every it. If it shall be said that this exclusive power legal justification to the court, and by this exof the grand jury does not extend to lesser mis- clusion of all evidence on the trial beyond the ne demeanors, which may be prosecuted by inform-gation of the fact, the courts indisputably intendation; I answer, that for that very reason it be-ed to establish, and did in fact effectually secure, comes doubly necessary to preserve the power of the other jury which is left. In the rules of pleading, there is no distinction between capital and lesser offenses; and the defendant's plea of not guilty (which universally prevails as the legal answer to every information or indictment, as opposed to special pleas to the court in civil actions), and the necessity imposed upon the Crown to join the general issue, are absolutely decisive of the present question [i. e., as to jurisdiction].

defendant's

shuts out the

law from the ju

even come within the knowledge of the jurors. Every legal defense must arise out of the facts. and the authority of the judge is interposed to prevent their appearing before a tribunal which, in such cases, has no competent jurisdiction over

them.

the judicial authority over legal questions from all encroachment or violation. And it is impossible to find a reason in law or in common sense, why the same boundaries between the fact and the law should not have been at the same time extended to criminal cases by the same rules of pleading, if the jurisdiction of the jury had been designed to be limited to the fact, as in civil actions.

cases.

But no such boundary was ever made or at tempted on the contrary, every person but never (2.) Every lawyer must admit that the rules charged with any crime by an indict- in criminal Manner of the of pleading were originally establish- ment or information has been in all plending. This ed to mark and to preserve the dis- times, from the Norman Conquest to this hour, tinct jurisdictions of the court and the not only permitted, but even bound, to throw ry in civil cases, jury, by a separation of the law from himself upon his country for deliverance, by the the fact, wherever they were intended to be sep-general plea of "Not guilty," and may submit arated. A person charged with owing a debt, or having committed a trespass, &c., &c., if he could not deny the facts on which the actions were founded, was obliged to submit his justification for matter of law by a special plea to the court upon the record; to which plea the plaintiff might demur, and submit the legal merits to 'I. e., might allege that, admitting the facts, the justification set up is not sufficient in law, which would be a question for the decision of the court, and not of the jury.

his whole defense to the jury, whether it be a negation of the fact or a justification of it in law. The judge has no authority, as in a civil case, to refuse such evidence at the trial as out of the issue, and as coram non judice [not before the judge]-an authority which in common sense he certainly would have, if the jury had no higher jurisdiction in the one case than in the other. The general plea thus sanctioned by immemo rial custom, so blends the law and the fact together, as to be inseparable but by the voluntary