In criminal prosecutions for political libels, it has indeed been held by the English courts that malice was a legal inference; and it is from that source that the honourable judge who tried this cause derived the doctrine then advanced by him. But this principle has not been asserted even in England in civil suits; and if it had been, I am prepared to show that the law of England on the subject of political libels is not and never ought to be the law of this country.

In civil actions of this class, the motive has been even there held to be an essential inquiry for the jury, and not, as the judge here called it, a legal in ference. The jury are directed to decide upon the question of malice, and not, as they were here repeatedly told, to consider it as a question of law. In this case the question of malice was in effect excluded from the consideration of the jury; and if they might have inferred that the publication could have been made without malice, the charge was incorrect.

It is unnecessary for us to show, that such an inference might have been drawn. Happily the charge of the judge furnishes us with satisfactory evidence of the sincerity and good faith of the defendants in making this publication, where he tells the jury that entire credit is to be given to the statements of all the witnesses; although those of the defendants could not be believed without admitting their justification to be completely

made out.

It is scarcely necessary to go into detail, to prove this case to belong to that class, where the public is interested in the subject matter of the publication. It was concerning the conduct of a public officer while discharging his official duties, and it accused him of what ought to have deprived him of the support of the people. His conduct, supposing this charge to have been true, degraded his office, and was offensive to decency. It was a public duty therefore to communicate it to his constituents throughout the state. The motive might have

been a public one as well as malicious, and the defendants were debarred from their legal rights in having that question withdrawn from the jury.

The doctrine, that malice is an inference of law is drawn from the English criminal law concerning libels; and although in the government prosecutions for political libels, precedents in abundance may be found in which this principle is advanced, I shall contend that, that branch of English jurisprudence was never adopted in this country; that it is inconsistent with the character of our institutions; and that the general principle of the common law, that publications concerning subjects affecting the public interest are not libellous unless malicious, applies here to publications made with the intention of communicating in good faith information to the public concerning the official conduct of a public officer; that in all such publications the intent is a material question for the consideration of the jury-a question of fact, and not a legal inference.

The law concerning libels is not to be found in the earlier law books. It is intimately connected with the advance of society, and may be said to depend upon the progress of civilization. It originated in the aspirations of the people for freedom, and to obtain a greater share in the government than they had formerly enjoyed. When these movements became obnoxious to the ruling powers, they directed their attention to the subject, and suppressed political discussion without ceremony.

Shortly after the introduction of printing into England, we find the Starr chamber established:-As if this formidable tribunal, so hostile to freedom, and the abolition of which was its first triumph, was especially instituted to control the press. How government at first exercised its power in repressing political libels we may learn from Lord Bacon's history of Henry VII. In speaking of Lord Stanley's execution, this great philosopher, who with all his sagacity did

not fully appreciate the rights of the commonalty or the power of the press, says, "Hereupon presently came forth swarms and vollies of libels, which are the gusts of liberty of speech restrained and the females of sedition, containing bitter invectives and slanders against the king and some the council; for the contriving and dispersing whereof, five mean persons were caught up and executed." In this summary manner was the offence of libelling the government punished under the Tudors; and although under the Stuarts the form of a trial was gone through, the proceedings were fully as subversive of the principles of freedom and justice. During the reigns of James and Charles, as we are informed by Hume, (certainly no advocate for the liberal side of the question,) any book commenting upon the conduct or ordinances of the monarch was deemed libellous, and its authors brought before the Starr chamber for punishment. How that tribunal punished them, and what respect was paid by its members for civil rights when they came in collision with the prerogatives of government, we can learn in the civil war and in the overthrow of the monarchical government brought about by their iniquitous judgments.

Even under the commonwealth, a government which rather exemplified the triumph of a party, than the prevalence of liberal principles, although this court was abolished, the restrictions on the press were confined, and a censorship was established, which produced from Milton his celebrated and most eloquent essay in favour of unlicensed printing. An essay from which I shall have occasion hereafter to quote, as high authority illustrating and enforcing the principles advanced in this cause.

The restoration of the Stuarts did not augment the freedom of the press, and, and after this event the state prosecutions for libels against the government begin to appear in the reports of the common law courts. The first case to which I shall refer is that of John Twynn, who was exe

cuted in 1663, shortly after the restoration, for publishing" that when the magistrates prevent judgment, the people are bound to execute jndgment without and upon them."

In 1680 we find the courts advancing the doctrine laid down by the honourable judge at the trial of this cause, and as this seems to be the origin of this doctrine, (and certainly it is not of modern origin,) it will not be amiss to refer particularly to the case. It was at the trial of one Henry Carr for a libel ridiculing the Jesuits, before chief justice Scroggs, that corrupt and unprincipled minion of power. This instrument of the crown then told the jury, that they had no power to judge of the intent, and that (I read from his charge 7 St. Trials 1127.) "as for these words, illicite, maliciose, unlawful; I must recite what all the judges of England have declared under their hands: When by the king's command we were to give in our opinion what was to be done in point of the regulation of the press--we did all subscribe that to print or publish any newspaper or pamphlet of news whatsoever is illegal; that it is a manifest intent to the breach of the peace, and they may be proceeded against by law for an illegal thing. Suppose now that this thing is not scandalous, what then? If there had been no reflection in this book at all; yet it is illicite, and the author ought to be convicted for it. And that is for a public notice to all people, and especially printers and booksellers, that they ought to print no book or pamphlet of news whatsoever without authority. So as he is to be convicted for it as a thing illicite done, not having authority." "If you find him guilty and say what he is guilty of, we will judge whether the thing imports malice or no." 7th St. Tr. 1127.

After this charge, in which the jury are repeatedly told, that they have no concern with the question of malice, they retired, and in an hour after brought in a verdict of guilty. Whereupon they received from the lips of this imaculate judge, this high com

mendation, "you have done like honest men." And his worthy coadjutor, the then recorder of London, Sir George Jeffries, replied, "they have done like honest men."

In this case is to be found the origin of the doctrine, which the honourable judge who tried this cause laid down as a rule for the jury, and we are willing that it should have all the weight due to its antiquity, and to its pure and venerable orgin. Something, however had now been gained in England by the efforts of the presbyterians and puritan whigs. Men were no longer caught up and executed. The Starr chamber was abolished, and libellers were brought before the courts of common law. The crown, as before, was still hostile to the press, and with a view of keeping it in a state of complete control, the doctrine that malice was a legal inference was invented, as a substitute for mere arbitrary will and power. Juries were told to find guilty upon proof of publishing, and the courts would then determine whether malice was imported.

Juries however would not always acquiesce in this doctrine; and in the celebrated case of the seven bishops, they took upon themselves to determine the question of malice, and acquitted the defendants. The conflict now between the court and the jury, had fairly commenced.—The judges, always striving to retain the power of determining the real question at issue in libel prosecutions, i. e. the guilty or malicious intention of the defendants, and the juries generally acquiescing, but occasionally, in matters where the public mind was highly excited, 'acquitting, in spite of the directions of the judges. In this contest, although the destined victims of arbitrary power would sometimes be protected, it was always with an effort; and in the natural course of events, they were sacrificed to the power of government.

Thus in 1682 we find Thompson, Paine, and Farewell convicted and punished for publishing, that Sir Edmondbury Godfrey had murdered himself; it then being an object with the

alarmists to make the nation believe that he was murdered by the Jesuits.

So too in 1693, after the revolution by which the English people flattered themselves their liberties were secured, Wm. Anderton was executed for a libel. 12 St. Tr. 1246.

In 1719 Littleton Powys took occasion, in his charge to the grand juries at the assizes, to express his opinion, and that of his brethren, concerning "the base libels and seditious papers, whose number had become intolerable," and respecting which he declared "that the government would not be at the trouble of inquiring after the authors, but would consider keepers of coffee-houses responsible for what were found there."

In 1729, at the trial of John Clarke, who was only a pressman, and in 1731, at the trial of Richard Franklin, the publisher of the Craftsman, the same doctrine as to the malicious intent was reiterated, and the jury were told that it was a legal inference, which it was the province of the court to make, and that they had nothing to do with it.

At the same time, efforts were made to introduce the English law of libel into this country. In 1735, John P. Zenger, who then published a weekly journal in the city of New York, was prosecuted by information for a libel upon the government of the province. Great exertions were made by the government to procure a conviction, and two respectable counsel were struck from the roll for signing his exceptions. All evidence of the truth of his publication was rejected by the court; but the counsel for the defendant contended, that the jury might find a verdict for the defendant from their own knowledge of the truth of the publications. This they did do, in defiance of the charge of the court, and thus ended the first attempt to introduce the English law concerning political libels into this country.

In 1752, another contest took place in England, between the court and the jury, respecting Wm. Owen, who was prosecuted for a libel upon the house

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, denunciation, 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." 66 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 uncompromising 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