performance; and we cannot but exprefs the entire approba tion with which we have perufed it. Our author has entered deeply into the nature of the English conftitution. He is a friend to its democracy, which he unfolds with a happy precifion; and impreffed with a full fenfe of the importance of a jury to the liberties of his country, he calls out to his fellow citizens to watch over this barrier with the keeneft attention.

While we applaud the matter of this work, it is also our duty to observe that the ftyle and manner of the author are juft and fortunate. He is every where perfpicuous, and as he writes from the heart he is often forcible.

The following obfervations of our author have a reference to what the law is which comes before a jury in a case of libel.

Libel or no Libel, is moft clearly a point of law; it cannot be otherwife; but it is a point not of mere law, of law fpecificated and embodied with fact. The fenfe of the words, and whether it agrees with averments and innuendo, is a question of fact: but a question that, fimple as it is, may have law inixed with it; for the rules of conftruction are principles of law, though of law founded in natural reason, and obvious to the common intelligence of mankind.

But what is this law fo mingled with each atom of fact, as light with air in the atmosphere, under the meridian fun?

Why, as it applies to the charge, as it applies to the admiffibi lity or effect of evidence, as it applies to rules of construction, it is not statute law; it is not any of those profeffional niceties, which fometimes come in aid on a motion for arrest of judgment: it is the Common Law of the Land, applied to the clearest and most fimple of all questions. Devife or no devife, on a will, is a question for a jury; and comes to them in conftant experience out of Chancery, and in other fhapes: yet this involves all the points of what is a will in law, what a revocation, and innumerable others that may be neceffary to guide their verdict. Suppofe they were told, four witneffes were neceffary to a will of lands, or that two were, fufficient-fuppofe that, in either cafe, the judge fhould forget to tell them, that they were mifinformed by the bar-would it not be poffible for a jury to know that three, and no more, were requifite; and to give their verdict accordingly, without fpecal inftructions from the bench, though in a mere point of pofitive law? Suppofe, even farther, that the judge fhould mifdirect the jury in point of law, which has been glaringly the cafe in almost every page of the ftate trials before the Revolution, and fometimes fince-fhould the jury then obey a palpable mifdirection, and find a refpectful petition against the most notorious infringements of law to be a Libel, becaufe told, that to write concerning the government at all, whether by fupplication, addrefs, or petition in whatever terms, with whatever meaning-is in all cafes neceffarily a Libel?

Since then it would be abfurd and monftrous, if the judge, whatever he should affert to be law, should bind the jury to frame their

verdict

verdict on it as fuch, juries must remain judges of the undivided law and fact. What would be confequence of their avowing, that they found against the direction of the judge, merely upon the point of law, it seems needlefs to be very folicitous in difcuffing; they can always, like Owen's Jury, referving their reafons, ftand upon the decifive anfwer, Not Guilty.

And, in truth, it is marvellous to fuppofe, that twelve men, folemnly returned under the refpected character good men and true, not epithets idly given, or terms of ridicule and contempt, fhould have no other ufe of underftanding, honefty, and firmnefs, than the weakest and moft fervile wretches. For, in these causes, the facts are not of the kind, where the adjustment of the weight of evidence is fometimes more intricate than the deepest question of Law; but the facts are fuch as hardly ever can be disputed, and which rarely the defendant hopes or wifhes to difprove; the law fuch, that all which can be known of it by the greatest judge, may without ftudy be understood by any man. Read the charges in cafe of Libels: you will fee at once the undifguifable fimplicity of the queftion. When the jury have learned any thing that they would not have fuppofed without it, the inftructions may have been thefe: that to utter or to have a thought on what government fhould please to do, was a crime; and that to find certain letters of the alphabet, in the order they were placed in the indictment, had been published by the defendant, was their whole province. They have been told, indeed, they were mafters of the meaning, when they were to be made fenfible their jurifdiction was not infignificant. And of what meaning ?-The first example that ftrikes will ferve as well as the beft.-The author of the good old tract, called A Dialogue between Doctor and Student, is, we will imagine, indicted, for that, intending to traduce and bring into contempt the laws and government of the realm: he did publish a certain falfe and malicious Libel of and concerning the laws and government aforefaid, intituled, A Dialogue between a Doctor and a Student, on the Laws of England. And then fome of the inoffenfive and useful paffages are fet forth, with proper inuendos: that Laws of England mean the Laws of England aforefaid; that D and S mean the Doctor and Student refpectively in the title: and then it would conclude that all this was done in fubverfion of the peace of the King, his crown, and dignity, and to the evil example of all perfons in the like cafe offending. Now the averments and innuendos, namely, that he published a dialogue with the title mentioned; that this dialogue was of and concerning the Laws of England; and that by laws of England, laws of England were meant; the jury would be as fure to find, as a man is compelled to understand one and one to be two, or, more exactly to the cafe, to be one and one. They might be informed, that if the paffages could not be taken criminally by any poffible conftruction, no harm would happen; for the defendant might fave himself, by moving in arreft of judgment.

Is this the trial, for the independence and integrity of which fo many accumulated fanctions are provided? This the trial, where nothing short of unanimity can decide? It is a living effective queftion, which men thus folemnly appointed are to determine by their

confenting

confenting fuffrage; they are not to leave the carcafe of the queftion, fact diffevered from intent, marked with the word guilty, that the magic of the Bench may infufe into this lifeless verdict a pernicious and delufive vitality unless the Bench fhall prefer the milder exercife of their difcretion, by pronouncing, that however fit it was the defendant should be convicted, it was abfolutely unfit the conviction fo properly directed should be allowed to ftand.'

On the fubject of juries, the exhortation of Mr. Lofft is ferious and interefting.

In every civil establishment that has any conftitution to lofe, there is an inceffant tendency to decay; the caufes which produce this, power poffeffed and power to be acquired, wage everlafting war against the freedom of the whole. To reduce the excess of power as low as poffible; to make it circulate fo that the holders of it may be ever mindful they have a depofit, not a property; to have no member of the community who can fay he is not a fharer in it's political rights; to have full information on conftitutional franchifes, and free inveftigation of public meafures; this it is to be a FREE PEOPLE. In the code of fuch a people, it would be no furprize if the very title of Libel were not to be found. A well-meant cenfüre would be merit; a malicious one would be infignificance. Miferable they would think the state, in which imprifonment, lofs of fortune, infamy, could fall upon a man for crimes which his jury could not understand; where the measures of obedience were to be kept, as if known to all, under feverest penalties, and when it was to be tried whether observed or broken, the ignorance which would not have been endured as an excufe for any man, must be prefumed of all but the few initiate. In the front of their Senate Houfe they would infcribe, GOVERNMENT, INTRUSTED BY ALL, TO ALL IS OPEN; and over their Halls of Juftice, JURIES THE JUDGES OF LAW AND FACT.

And, my Countrymen, remember what it is to be a juror": that it is to be intrufted with no common pledge of the confidence, of your Country; to undertake an office, which men of understanding, honefty, and firmness, feel to be worthy of them; to be the friend of Justice, a protector of Innocence, a benefactor to the People; to defend Freedom, and affert the honour of the Conftitution; that it is to be incorrupt, impartial, preferring Truth to all things. Never then will ye decline to ferve on Juries, whether that of previous inquiry, or the more important one of trial: hever fancy it a favour, or an escape, to be released from the exercife of a duty, which will be your choice and your glory if ye reflect but what it is; that, next to the elective and legiflative truft, and the free ufe of arms in the defence of your country, there is no emiployment more truly honourable, or that more concerns the Freedom and Welfare of the Community, than that of Juries. And that of all cafes, through the great extent of their jurifdiction, under which may come to trial every right of property, of perfon, and reputation-whatever, private or public, is of moft concern there is no province more vigilantly to be guarded, more ftrentoufly to be retained, more eminently their own; nothing that with ENG. REV. 1785.

H

more

more certainty and clearness of confcience they can discharges nothing which the fimplicity of the question renders more open to their decifion, and the peculiar importance of it fo enjoins them to referve; nothing which to betray would be more infamous, or more fatal to fuffer it to be evaded, than the POWER of JURIES to determine on the WHOLE MATTER, by the GENERAL ISSUE of Not Guilty in the cafe of LIBEL.

It is faid this tutelary power will be brought under confideration in the Houfe of Commons. If, by a regulating law, the bench will be exalted, and the jury depreffed (for the judges taking on them the conftruction of that law, will enlarge their jurifdiction)-if, by an af firmance of this right in matter of Libel, it will tend to negative its exercife in other cafes-if by obliging juries, in all cafes of a criminal perfecution, to find a general verdict, it may be doubted whe ther juries, too much in awe of the judge, would not convict when no medium was left them; and thofe juries who felt the independence of their office, would not find fpecially without real caufe-if by impeachment of the judges who have diftinguifhed themfelves by the contrary doctrine-let it be permitted me to own, I have ftill lefs confidence in the fuccefs, or conviction of the propriety of this measure, than of almost any other. The great fupporter of this obnoxious, and I firmly believe unconftitutional opinion, is far indeed in the vale of years; nor does this appear the time for arraigning him on a doctrine which he has long and uniformly avowed. I know that refpect to extraordinary talents, or fenfibility for the remaining moments of a life fpent in the fatigues of an arduous and exhaufting ftation, is not to weigh against public juftice, which is the life of the community; but I know, alfo, that the bolts of that juftice are pointed at the corrupt heart, not the errors of the judgement and no fufficient reafon, I think, appears for imputing to the iniquity of the will, the adherence to a pofition often before afferted, and from a bias to which, few of all our judges, for two centuries, have been free; and not a few in that period (before which our information of judicial tranfactions is contracted and imperfect) have been eminent for learning, abilities, and integrity. An exhortation to the people from their reprefentatives, encourag ing them to defend the fubftantial good of trial by juries, as indif penfible to their juft fecurity and vital to their freedom, by uting theirright of judging on the whole matter (in cafes of crime efpecially and of Libels above any, as at once the most fimple and the unfit to be abandoned)-this might come well from any affembly; but best and moft fuitably (I will add, with greatest certainty) from an adequate Reprefentation; an Houfe of Commons conftitutional in itself, and therefore worthiest to declare the rights of the great Community on one of the highest points of the Conftitution, next to those on which its own existence depends.

At prefent, I do believe this great Right of Juries is moft in 1afety by the general perfuafion of its exiftence; not only derived from fome opinions, exprefsly in its behalf, of men as great as ever honoured any profeffion (and one opinion of men limiting their own jurifdiction, is ftronger then fifty to extend it); but yet more from reafon and fentiment, as men and members of the Community, ftruck with the evidence, ftrong and luminous as it is, by which this confti. tutional

5

tutional truth engages the understanding, unoccupied by particular habits of education and office; while the interefting relation it has to fociety endears it to the public breaft. For a long courfe of years, repeatedly exerted on great and trying occafions, and confeffedly impoffible to be wrefted from a jury refolved to ufe it, fcarcely have we a right fo well fecured, or furrounded with motives of more activity to prevent its difufe. Let it live, as it has hitherto done, in the free bofom of the people of England: rarely will it be evaded, never extorted from this fanctuary; but will there refide the nobleft boaft of our legal fyftem; the INVIOLABLE PLEDGE of FREEDOM!' From the extracts we have given, our readers may form for themfelves an opinion of the prefent publication, and they will probably be induced to honour it with a deliberate perufal.

To his treatife Mr. Lofft has added authorities which are of confiderable value, and the justly admired letter of Mr. Erfkine on the proceedings of the Court of King's Bench in Ireland by attachment.

ART. IX. The Favourites of Felicity. A Novel. In a feries of Letters. By John Potter, M. B. Author of the Curate of Coventry, The Virtuous Villagers, &c. &c. 12mo. 3 Vols. 7s. 6d. Becket, Baldwin, Robinfon, Bew, 1785.

WE

TE dare fay Mr. Potter means well; but why will he pretend to write a novel without invention to form a ftory, of why will he venture to defcribe manners that he has never feen, and laftly, how can he with propriety addrefs himself to the ladies, while he makes his female characters fometimes give way to a pruriency of idea that muft fhock the modefty

of the fex:

The three volumes before us confift of letters, which con tain, instead of incident, for the most part, infipid differtations on trite fubjects, every moment interlarded with fcraps of poetry from Akenfide, Dryden, Philips, &c. They are cked out with the episode of a hermit, who, from his "copious and exact journal," gives us a meagre defcription of fome places in Holland and the Low-countries, and fome well-known anecdotes of a few learned men; whether extracted from the Delices du pais bas or not we have not time to examine. So much for what may be called the fable of the work, which is dulnefs itself.

"

With regard to the manners, this publication is equally faulty. Mifs Selima Percival, daughter of Sir William Percival, is meant to be reprefented as a young lady of fathion, a little too volatile and vivacious." Who does not laugh when this Baronet's daughter with the fine name fwears" by jingo" that he will have a world of fun"-by jingo "there is fo much fun in all this bufinefs"-" I love fun" "I "by jingo I'll be primum mobile of the primum mobile”H 2