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of commons, and the jury acquitted the defendant, although the proof of publication was clear. 18 St. Tr. 1228. The court catechised the jury upon their bringing in the verdict, but they adhered to it. "Upon which, (as the report has it,) the court broke up, and there was a prodigious shout in the hall." This was the third contest, in which the jury prevailed. The first was in the case of Bushnell, and the second in that of the seven bishops.
The elements of a greater conflict, however, now were gathering. The movements of the ministry in reference to this country, then in a state of colonial dependence, were only indications of the spirit which animated the councils of the government, and of its hostility to civil freedom. The same feeling which urged our ancestors to resistance, animated the whigs of England, and caused violent domestic parties. Wilkes attacked the ministers in the North Briton. Junius overwhelmed them with invective, de« nunciation, and sarcasm, in the Daily Advertiser; and after prostrating the servants of the crown, he laid his sacrilegious hands upon the Lord's anointed himself. This bold attack exposed the publishers and sellers of the celebrated letter to the king to state prosecutions for libels.
John Almon, a bookseller, was first brought to trial in Middlesex, where the jurors were more under the influence of the crown than in London. Defendant did not know of the publication, but the doctrine of the judges as to intention prevailed, and the defendant was found guilty. John Miller was next tried before a London jury, and the defendant's counsel contended that they were to pass upon the intent of the defendant, but Lord Mansfield told them that the intent, malice, &c., were mere formal words, "mere inferences of law, with which the jury were not to concern themselves." They were only to decide upon the fact of publication, and the meaning of the inuendoes." The jury however thought otherwise, and acquitted the defendant, to the great
joy of the popular party. 20 St. Tr. 894.
The same doctrine was advanced in the very words I have just used, in the trial of Woodfall, the printer of the letter; and in this case the jury gave in a verdict of "guilty of printing and publishing only." Ib. 899. In this last case, a motion was made for arrest of judgment by the defendant's counsel, and a motion for judgment by the counsel for the crown. The court ordered a venire de novo, but the cause was never again tried. Ib. 921. These decisions produced great excitement in England. The causes were considered, and justly considered, as trials of strength between the great political parties of the day: the one endeavouring to augment the powers of government; the other striving to restrain them within the limits of the constitution. This great contest, of which the elements had long before been gathering, was now at its crisis. The government aimed, by the stamp act and taxation bills, to reduce the North American colonists to a state of absolute vassalage, and to crush the opposition at home by a course of measures, of which the prosecutions for libels, and secretary of state's warrants, formed a part. These measures were all features of the same policy, and indicated the same despotic parentage.
The liberties of the Anglo Saxon race were at stake, and fortunately for the cause of civil freedom, its defence was intrusted to men of uncompro mising character, of clear minds, and undaunted resolution. Though Lords Mansfield, Bute, and North, aided by the whole power of the British crown, threatened to crush all who thwarted their will; the friends of English liberty were encouraged in their resistance by Camden, Chatham, and Burke, whose principles were also enforced by the American congress.
The warrants of the secretary of state were adjudged illegal in the case of Rochford ads. Sayre. The doctrine of the courts respecting libels, although destined to undergo a more
protracted discussion, met with a similar fate.
The principles advanced from the bench in the trials of Woodfall and the other printers, immediately became the subject of parliamentary animadversion.
Chatham commented upon them with great severity in his speech, relative to the Middlesex election, and stigmatized them "as contrary to law, repugnant to practice, and injurious to the dearest rights of the people." Lord Mansfield, who was then present in the house of lords, was compelled by this public attack, to enter upon a defence of his conduct. A debate accordingly occurred in the house of lords, in which Lord Camden, the former chancellor, took part. The remarks of this learned and upright judge are too pointed respecting the doctrine in question, to be suppressed. I read them from Dodsley's Annual Register for 1771, p. 27. He said, that, "having passed through the highest departments of the law, he was particularly interested, and even tied down by duty, to urge the making of the inquiry into the conduct of the judges that if it should appear that any doctrines had been inculcated, contrary to the known and established principles of the constitution, he would expose and point them out, and convince the authors to their faces of the errors they had been guilty of: that he could not, from his profession, but be sensibly concerned for the present disreputable state of our law courts, and sincerely to wish that some effectual method might be taken to recover their former lustre and dignity; and that he knew of no method so effectual as the proposed inquiry. If the spirit of the times has fixed any unmerited stigma upon the character of the judges, this will purify them, and restore them to the esteem and confidence of their country; but if the popular rumours have unhappily been too well founded, we owe it to ourselves and to posterity, to drive them indignantly from the seats which they dishonour, and
to punish them in an exemplary manner for their malversation."
A motion was also made at the same time, in the house of commons, proposing an inquiry into the conduct of the judges; and one of the specific charges brought against them was, that they had claimed the right to judge of the intention, which doctrine was stigmatized as illegal and tyrannical. This motion was resisted by the ministerial party, who prevailed on a division, 184 against 76, for the proposed inquiry.
The effect of these animadversions was, to produce a notice on the part of Lord Mansfield, for a call of the house of lords on the following Monday, on a matter of importance, which he had to communicate to them. It was generally supposed that this call was preparatory to a free and open discussion of the offensive doctrines, which he intended to bring on in the house of lords. But upon the appointed day, Lord Mansfield shrunk from the discussion, and merely informed the house that he had left a paper with the clerk, containing the unanimous opinion of the court of king's bench in the case of Woodfall, for the perusal of any one.
It was then asked if the paper was to be entered upon the journals of the house, to which a reply in the negative was given; and no motion being made by Lord Mansfield, Lord Camden stated to the house, that he was ready to maintain that the doctrine laid down as the judgment of the court, was not the law of England, and pressed upon Lord Mansfield to appoint an early day for the discussion.
This challenge, however, was declined, and the courts continued in theory to assert the old doctrine, but not often venturing to enforce in practice, until Mr. Fox brought forward his declaratory act, repudiating the principle as slavish, and inconsistent_with the spirit of the common law. In all the discussions relating to the passage of this act in parliament, the whig leaders, Fox, Erskine, and Bearcroft,
contended that the intention ought to be submitted to the jury as a matter of fact. Lord Camden said it was always a question of fact. Lord Loughborough said that it had always been his practice to submit the whole matter in libel suits to a jury, and Pitt admitted that the law ought to be so. The act finally passed, and the question was decided in favour of the liberty of the press. The malice or intention of the libeller was formally declared to be a question of fact, and not an inference of law.
While this concession to freedom was thus slowly and by degrees wrung from the government at home, circumstances had prepared the way on this side of the Atlantic for a more general conflict resulting in a complete and decisive triumph. The resistance of our ancestors, which at first aimed at securing to them only the privileges of Englishmen, eventuated in procuring to them and their posterity complete enjoyment of the rights of men. The British colonies were separated from the mother country, and united under an independent government, republican and representative in its character. They adopted in the main, the laws and institutions of the parent kingdom, but made one great and material alteration. This variance, which lies at the root of the question I am discussing, resulted from the difference in the character and spirit of the two governments. In Great Britain it is held to be a maxim, that the king can do no wrong. The public officers throughout the kingdom are his instruments, and in some sort represent his authority; and though they are not vested with the same immunity, it is impossible to disregard the tenderness manifested by the law for public dignities, and their freedom from all constitutional responsibility. This exemption from political responsibility is a principle pervading the whole constitution. The king is incapable of doing wrong. Parliament is omnipotent, and the judiciary in fact independent of all but the executive government. In this state of things the press cannot be free. It is
at most merely tolerated, and unless the government means to foster an instrument, which must ultimately overthrow it, it acts wisely in thus limiting its power. In this country an entirely opposite principle prevails. The government was established by the people and for the people. It is founded on the great maxim, of rendering all public officers accountable to public opinion. This principle of accountability pervades all our political institutions. The legislature is accountable to the people: The executive to the legislature, and also to the people: The judiciary to the legislature, and indirectly to the people. Every officer intrusted with power is accountable either directly or indirectly. At periodical elections held in various parts of the country, this delegated power is laid down, and is either intrusted to new servants, or to the old ones, whose services have been satisfactory.
This arrangement of our political institutions, presupposes information to be communicated to the people through the press, concerning their public affairs.
The government is based upon public intelligence, and the doctrine of accountability on the part of elected magistrates mainly depends upon a free press-upon a press to publish as freely of public officers, as according to the common law (which here is not warped to suit the views of government) it may publish of private individuals what it concerns the public to know, and to be held responsible only for what is maliciously, as well as untruly published.
This is the great result of our revolution in government-reformation in public measures by means of public opinion. The means of communi cating information of course were intended to be free. This is the real object of that provision of the constitu tion guarantying the freedom of the press. It meant to secure the press from the power of the government, and to enable it to criticise with freedom public measures, and the conduct and qualifications of public officers This was the only freedom the press
wanted. It was always free in England as to publications concerning private character, when it conformed to the great principles distinguishing between publications strictly private or personal, and those aiming to subserve the public welfare. It was shackled only so far as it attempted to discuss public measures, and the conduct and character of public officers. In this country, the same freedom was extended to political discussions, which were no longer to form an exception to the common law of libel; but were to be adjudged upon as other publications affecting reputation and having the interest of the community in view, viz. to be justified where the intention is justifiable; to be condemned where it is malicious. By the change in the form and character of the government, the reason which made the law concerning political libels an exception from the common law of libel is at an end; and the maxim prevails cessat ratio, cessat lex.
It forms no longer an exception, and all authority derived from the common law respecting political libels, is to be rejected as not applicable in this country.
The honourable judge who presided at the trial of this cause, not properly appreciating the distinction, was led into a mistake and adopted the doctrine advanced in the case of Woodfall, and so much censured in parliament. The supreme court fell into the same mistake in relying upon the case of Lewis vs. Few. 5 John. That case indeed is not altogether applicable to the point now under discussion; in as much as the question was brought up upon a demurrer to the evidence, where the rule is, that whatever might be inferred by a jury, the court is bound to infer in favour of the plaintiff. Now we do not contend, that the jury may not infer malice from the publication itself, but that it is not necessarily inferrible, and may be rebutted from the other circumstances; and at all events, that it is a question which the jury may decide in the negative.
The case of Lewis vs. Few, therefore, is not in point, inasmuch as there the court were bound to infer malice, because the jury might have inferred it; but if it were directly in point, I should contend that so far as it sustains the principle, that malice is not a question of fact, but a legal inference, it is to be disregarded.
The authorities of the law for this country, in reference to political libels, are not to be found in the decisions of English judges, influenced as they have generally been by the hope of court favour, or fear of its frowns, and of whose fallibility and arbitrary disposition you such melancholy proofs in those records of human weakness and crime, interspersed with accounts of suffering patriotism, entitled English state trials. They are to be found in the expressed opinions of the eminent men, who have contended in behalf of English freedom against the arbitrary principles of the crown, promulgated by these very judges-in the acts of our revolutionary ancestors, and of their successors who established our political institutions-and in the character and spirit of those institutions. These opinions are protests against the arbitrary doctrines of the English courts, and followed up as they have been by the acts which gave us liberty and an independent government, they form an authority with which the technical and narrow precedents of the books are not to be brought in comparison.
Milton, in his eloquent speech for an unlicensed press, asserts this very doctrine for which we are now contending. Speaking of the power of the press in reforming abuses in a comm munity, he says, "For this is not the liberty which we can hope, that no grievance ever should arise in the commonwealth; that, let no man in this world expect; but when complaints are freely heard, deeply considered, and speedily reformed, then is the utmost bound of civil liberty attained, that wise men look for." "And a little farther, "Give me the liberty to know, to utter, and to argue freely
according to conscience, above all li berties. Though all the winds of doctrine were let loose to play upon the earth, so truth be in the field, we do injuriously, by prohibiting and licensing, to misdoubt her strength. Let her and falsehood grapple, who ever knew truth put to the worse in an open and free encounter?"
This same doctrine was what Erskine contended for, throughout his long contest with the courts in behalf of the rights of juries and the freedom of the press.
At the trial of the Dean of St. Asaph for a libel, after alluding to the controversy between the courts and juries, respecting the right of juries to judge of the intent, he says, "now, prosecutions for libel are tried, and I hope ever will be tried, with that harmony which is the beauty of our legal constitution; the jury preserving their independence in judging of that malus animus, which is the essence of every crime, but listening to the opinion of the judge upon the law, and the evidence, with that respect and attention which dignity, learning, and honest intention in a magistrate must, and ought always to carry along with them."
for intemperance of expression; that this was the question for the jury to try, and that they might safely acquit his client on that ground, for that his principles of defence could not at any time, or on any occasion be applied to shield wilful libellers from punishment, and that they were compatible only with honour, honesty, and mistaken good intention. In concluding this most eloquent and masterly defence, a defence which, taken together with his argument in the case of the Dean of St. Asaph, contains more sound principle on the law of political libel, than the collected wisdom of all the judges of England, he told the jury, that the question to be decided was not in any sense a question of law, but a pure question of fact, to be decided upon the principles he had advanced in his defence.
The jury retired, after receiving a very precise charge from Lord Kenyon, and in about two hours brought in a verdict acquitting the defendant.
These propositions of Mr. Erskine, in the case of St. Asaph, were distinctly approved by Mr. Fox, in the debate on the declaratory act, and he asserted, that the jury had a right to decide on the intention as a matter of fact, 3d vol. Senator, 627. Mr. Burke too asserted the same principles, in his speech on Mr. Dowdeswell's motion for leave to bring in a bill settling the law on this point, made in parliament, March 7th, 1771, and he further observes, that "if the intent and tendency be left to the judge as legal conclusions resulting from the fact, you may depend upon it, you can have no public discussions of a public measure." Sir James Mackintosh also adds his authority in behalf of the same position, in language particularly applica ble to the case now under discussion. In his defence of Peltier, who was indicted in England during the shortlived peace after the treaty of Amiens, for a libel upon Napoleon, then 1st consul, he contends that "the essence of the crime of libel consists in the malignant mind, which the publication proves, and from which it flows. A