« PrécédentContinuer »
performance; and we cannot but express the entire approbation with which we have perused it. Our author has entered deeply into the nature of the English constitution. He is a friend to its democracy, which he unfolds with a happy precision; and impressed with a full sense 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 keenest attention.
While we applaud the matter of this work, it is also our duty to observe that the style and manner of the author arc just and fortunate. He is every where perspicuous, and as he writes from the heart he is often forcible,
The following observations 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 most clearly a point of law; it cannot be otherwise ; but it is a point not of mere law, of law specificated and embodied with fact. The sense of the words, and whether it agrees with averments and innuendo, is a question of fact: but a question that, simple as it is, may have law inixed with it; for the rules of construction are principles of law, though of law founded in natural reason, and obvious to the common intelligence of mankind.
• But what is this law so mingled with each atom of fact, as light with air in the atmosphere, under the meridian sun?
'Why, as it applies to the charge, as it applies to the admissibility or effect of evidence, as it applies to rules of construction, it is not statute law ; it is not any of those professional niceties, which sometimes come in aid on a motion for arrest of judgment : it is the Common Law of the Land, applied to the clearest and most simple of all questions. Devise or no devise, on a will, is a question for a jury; and comes to them in constant experience out of Chancery, and in other shapes : yet this involves all the points of what is a will in law, what a revocation, and innumerable others that may be necessary to guide their verdict. Suppose they were told, four witnesses were necefiary to a will of lands, or that two were, suffie cient-suppose that, in either case, the judge fhould forget to tell them, that they were misinforined by the bar--would it not be pofsible for a jury to know that three, and no more, were requisite ; and to give their verdict accordingly, without fpecal instructions from the bench, though in a mere point of positive law ? Suppose, even farther, that the judge should misdirect the jury in point of law, which has been glaringly the case in almost every page of the state trials before the Revolution, and sometimes since-should the jury then obey a palpable misdirection, and find a respectful petition against the most notorious infringements of law to be a Libel, because told, that to write concerning the government at all, whether by supplication, address, or petition--in whatever terms, with whatever meaning is in all cases necessarily a Libel?
" Since then it would be absurd and monstrous, if the judge, whatever he flould affert to be law, should bind the jury to frame their
verdict on it as such, juries must remain judges of the undivided law and fact. What would be consequence of their avowing, that they found against the direction of the judge, merely upon the point of law, it seems needle is to be very solicitous in discussing ; they can always, like Owen's Jury, reserving their reasons, stand upon the decisive answer, Not Guilty.
And, in truth, it is marvellous to suppose, that tivelve men, folemnly returned under the respected character good men and true, not epithets idly given, or terms of ridicule and contempt, should have no other ufe of understanding, honesty, and firmness, than the weakest and most servile wretches. For, in these causes, the facts are not of the kind, where the adjustment of the weight of evidence is sometimes more intricate than the deepest question of Law; but the facts are such as hardly ever can be disputed, and which rarely the defendant hopes or withes to disprove; the law such, that all which can be known of it by the greatest judge, may without study be understood by any man. Read the charges in caie of Libels: you will fee at once the undisguisable fimplicity of the question. When the jury have learned any thing that they would not have supposed without it, the instructions may have been these : that to utter or to have a thought on what gorernment should 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 masters of the 'ineaning, when they were to be made sensible' their jurisdiction was not insignificant. And of what meaning ?-The first example that strikes will serve as well as the best. 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 false and malicious Libel of and concerning the laws and government aforesaid, intituled, A Dialogue between a Doctor and a Student, on the Laws of England. And then some of the inoffensive and useful pattages are set forth, with proper inuendos: that Laws of England mean the Laws of England aforesaid; that D and S mean the Doctor and Student respectively in the title : and then it would conclude that all this was done in subversion of the peace of the King, his crown, and dignity, and to the evil example of all persons in the like cafe offending. Now the averments and innuendos, nameiy, 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 sure to find, as a man is compelled to understand one and one to be two, or, more exactly to the case, to be one and one. They might be informed, that if the pafTages could not be taken criminally by any possible construction, no harm would happen; for the defendant might fave himself, by moving in arrest of judgment,
Is this the trial, for the independence and integrity of which fo many accumulated fanctions are provided? This the trial, where nothiog short of unanimity can decide ? It is a living effective queftion, which men thus folemnly appointed are to determine by their
confenting suffrage ; they are not to leave the carcase of the quertion, fact diffevered from intent, marked with the word guilty, that the magic of the Bench may infuse into this lifeless verdict a pernicious and delusive vitality-unless the Bench shall prefer the milder exercise of their difcretion, by pronouncing, that however fit it was the defendant should be convicted, it was absolutely unfit the conviction so properly directed should be allowed to stand.'
On the tubject of juries, the exhortation of Mr. Lofft is Terious and interesting.
In every civil establishment that has any constitution to lose, there is an incessant tendency to decay; the causes which produce this, power poffeffed and power to be acquired, wage everlast
ing war against the freedom of the whole. To reduce the excess of power as low as possible; to make it circulate so 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 say he is not a sharer in it's political rights to have full information on constitutional franchises, and free investigation of public measures ; - this it is to be a FREE PEOPLE. In the code of such a people, it would be no surprize if the very title of Libel were not to be found. A well-meant censure would be merit; a malicious one would be insignificance. Miserable they would think the state, in which imprisonment, loss 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 severest penalties, and when it was to be tried whether observed or brokeri, the ignorance which would not have been endured as an excufe før any man, must be presumed of all but the few initiate. In the front of their Senate House they would inscribe, GOVERNMENT, INTRUSTED BY ALL, TO ALL 'IS OPEN ; and over their Halls of Justice, JURIES THE JUDGES OF LAW AND Fact.
And, my Countrymen, remember what it is to be a juror*: that it is to be intrusted with no common pledge of the confidence, of your Country ; to undertake an office, which men of understanding, honesty, 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 assert the honour of the Constitution; that it is to be incorrupt, impartial, preferring Truth to all things. Never then will ye decline to serve 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 exercise of a duty, which will be your choice and your glory if ye reflect but what it is; that, next to the elective and legislative trust; and the free use of arms in the defence of your country, there is no employment more truly honourable, or that more concerns the 'Free. dom and Welfare of the Community, than that of Juries. And that of all cases, through the great extent of their jurisdiétion, under which may come to trial every right of property, of perfon, and reputation--whatever, private or public, is of most concein there is no province more vigilantly to be guarded, more ftren'itously to be retained, more eminently their own; nothing that with , H
ENG. REY. 1785.
more certainty and clearness of conscience they can discharge : nothing which the fimplicity of the question renders more open to their decision, and the peculiar importance of it to enjoins them to Ic!erre;, nothing which to betray would be more infamous, or more
fatal to suffer it to be evaded, than the Power of Juries to determine on the WHOLE MATTER, by the GENERAL Issue of Not Guilty in the case of LIBEL.
. It is said this tutelary power will be brought under confideration in the House of Commons. If, by a regulating law, the bench will be cxalted, and the jury depressed (for the judges taking on them the construction of that law, will enlarge their jurisdiction) -if, by an affirmance of this right in matter of Libel, it will tend to negative its exercise in other cases--if by obliging juries, in all cases of a criminal persecuțion, to find a general verdict, it may be doubted whether juries, eco 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 specially without real caute--if by impeachment of the judges who have distinguislied themselves by the contrary doctrine-let it be permitted me to owry, I have ftill less confidence in the success, or conviction of the propriety of this measure, than of almost any other. The great supporter of this obnoxious, and I firmly believe unconstitutional 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 respect to extraordinary talents, 'or fenfibility for the remaining moments of a life spent in the fatigues of an arduous and exhaufting station, is not to weigh against public justice, which is the life of the community ; but I know, allo, that the bolts of that justice are pointed at the corrupt heart, not the errors of tht judgement : and no füfficient reason, 1 think, appears for imputing
to the iniquity of the will, the adherence to a position 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 transactions is contracted and imperfect) have been eminent for learning, abilities, and integrity. An exhortation to the people from their representatives, encourag ing them to defend the substantial good of trial by juries, as indirpensible to their just security and vital to their freedom, by uting theirright of judging on the whole matter (in cases of crime especially and of Libels above any, as at once the most simple and the unfit
to be abandoned)--this might come well from any affembly; but best and inost suitably (I will add, with greatest certainty) from an adequate Representation; an House of Commons constitutional in itself, and therefore worthiest to declare the rights of the great Community or one of the highest points of the Constitution, next to those on which its own existence depends.
At present, I do believe this great Right of Jurics is moft in lafety, by the general persuasion of its existence ;' not only derived from fome opinions, expressly in its behalf, of men as great as ever honoured any profeffion (and one opinion of men limiting their own jurisdiction, is stronger then fifty to extend it) but yet more from reason and sentiment, as men and members of the Community, struck with the evidence, strong and luminous as it is, by which this consti. 5
tutional truth engages the understanding, unoccupied by particular habits of education and office; while the interesting relation it has to. society endears it to the public breast. For a long course of years, repeatedly exerted on great and trying occasions, and confessedly, impoffible to be wrested from a jury resolved to use it, scarcely have we a right fo well secured, or surrounded with motives of more activity to prevent its disuse. 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 sanctuary ; but will there reside the noblest boast of our legal system ; the INVIOLABLE PLEDGE of FREEDOM!'
From the extracts we have given, our readers may form for themselves an opinion of the present publication, and they will probably be induced to honour it with a deliberate perusal.
To his treatise Mr. Lofft has added authorities which are of considerable value, and the justly admired letter of Mr. Erskine on the proceedings of the Court of King's Bench in Ireland by attachment. ART. IX, The Favourites of Felicity. A Novel. In a series 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, Robinson, Bew, 1785. WE E dare say Mr. Potter means well; but why will he pre
tend to write a novel without invention to form a story, of why will he venture to describe manners that he has never seen, and lastly, how can he with propriety address himself to the ladies, while he makes his female characters sometimes give way to a pruriency of idea that must shock the modesty of the sexi
T'he three volumes before us consist of letters, which contain, instead of incident, for the moft part, infipid dissertations on trite subjects, every moment interlarded with scraps of poetry from Akenside, Dryden, Philips, &c. They are cked out with the episode of a hermit, who, from his , pious and exact journal,” gives us a meagre description of some places in Holland and the Low-countries, and some 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, faalty. Mìfs Selima Percival, daughter of Sir William Percival, is meant to be represented as a young lady of fathion, a little " too volatile and yivacious." Who does not laugh when this Baronet's daughter with the fine name swears "by jingo” that she will have “ a world of fun”-by jingo " there is so much fun in all this business"-" I love fun" -" by jingo I'll be primum mobile of the primum mobile”.