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In criminal prosecutions for poli- been a public one as well as malicious, tical libels, it has indeed been held and the defendants were debarred from by the English courts that malice was their legal rights in having that quesa legal inference; and it is from that tion withdrawn from the jury. source that the honourable judge who The doctrine, that malice is an tried this cause derived the doctrine inference of law is drawn from the then advanced by him. But this prin- English criminal law concerning liciple has not been asserted even in bels; and although in the government England in civil suits; and if it had prosecutions for political libels, prebeen, I am prepared to show that the cedents in abundance may be found in law of England on the subject of poli- which this principle is advanced, I tical libels is not and never ought to shall contend that, that branch of Enbe the law of this country.
glish jurisprudence was never adopted In civil actions of this class, the mo. in this country; that it is inconsistent tive has been even there held to be an with the character of our institutions; essential inquiry for the jury, and not, and that the general principle of the as the judge here called it, a legal irha common w, that publications conference. The jury are directed to de. cerning subjects affecting the public cide upon the question of malice, and interest are not libellous unless manot, as they were here repeatedly told, licious, applies here to publications to consider it as a question of law. In made with the intention of communithis case the question of malice was in cating in good faith information to the effect excluded from the consideration public concerning the official conduct of the jury; and if they might have of a public officer; that in all such inferred that the publication could publications the intent is a material have been made without malice, the question for the consideration of the charge was incorrect.
jury—a question of fact, and not a It is unnecessary for us to show, that legal inference. such an inference might have been The law concerning libels is not to drawn. Happily the charge of the be found in the earlier law books. It judge furnishes us with satisfactory is intimately connected with the adevidence of the sincerity and good vance of society, and may be said to faith of the defendants in making this depend upon the progress of civilizapublication, where he tells the jury tion. It originated in the aspirations that entire credit is to be given to the of the people for freedom, and to obstatements of all the witnesses ; al- tain a greater share in the government though those of the defendants could than they had formerly enjoyed. When not be believed without admitting these movements became obnoxious their justification to be completely to the ruling powers, they directed made out.
their attention to the subject, and supIt is scarcely necessary to go into pressed political discussion without detail, to prove this case to belong to ceremony. that class, where the public is interest Shortly after the introduction of ed in the subject matter of the pub- printing into England, we find the lication. It was concerning the con Starr chamber established:-As if this duct of a public officer while discharg- formidable tribunal, so hostile to freeing his official duties, and it accused dom, and the abolition of which was him of what ought to have deprived its first triumph, was especially instihim of the support of the people. His tuted to control the press. How goconduct, supposing this charge to vernment at first exercised its power have been true, degraded his office, in repressing political libels we may and was offensive to decency. It was learn from Lord Bacon's history of a public duty therefore to communi- Henry VII. In speaking of Lord cate it to his constituents throughout Stanley's execution, this great philothe state. The motive might have sopher, who with all his sagacity did
not fully appreciate the rights of the cuted in 1663, shortly after the restocommonalty or the power of the press, ration, for publishing “ that when the says, “Hereupon presently came forth magistrates prevent judgment, the swarms and vollies of libels, which are people are bound to execute jndgment the gusts of liberty of speech restrained without and upon them.” and the females of sedition, containing In 1680 we find the courts advancing bitter invectives and slanders against the doctrine laid down by the honourthe king and some the council; for able judge at the trial of this cause, the contriving and dispersing whereof, and as this seems to be the origin of five mean persons were caught up and this doctrine, (and certainly it is not executed." In this summary manner of modern origin,) it will not be amiss was the offence of libelling the go. to refer particularly to the case. It vernment punished under the Tudors; was at the trial of one Henry Carr and although under the Stuarts the for a libel ridiculing the Jesuits, before form of a trial was gone through, the chief justice Scroggs, that corrupt and proceedings were fully as subversive of unprincipled minion of power. This the principles of freedom and justice. instrument of the crown then told the
During the reigns of James and jury, that they had no power to judge Charles, as we are informed by Hume, of the intent, and that (I read from (certainly no advocate for the liberal his charge 7 St. Trials 1127.) “as for side of the question,) any book com these words, illicite, maliciose, unlawmenting upon the conduct or ordi, ful; I must recite what all the judges nances of the monarch was deemed of England have declared under their libellous, and its authors brought before hands: When by the king's command the Starr chamber for punishment. we were to give in our opinion what How that tribunal punished them, and was to be done in point of the rewhat respect was paid by its members gulation of the press :--we did all for civil rights when they came in col- subscribe that to print or publish any lision with the prerogatives of govern- newspaper or pamphlet of news whatment, we can learn in the civil war soever is illegal; that it is a manifest and in the overthrow of the mo. intent to the breach of the peace, and narchical government brought about they may be proceeded against by law by their iniquitous judgments.
for an illegal thing. Suppose now that Even under the commonwealth, a this thing is not scandalous, what government which rather exemplified then ? If there had been no reflection the triumph of a party, than the preva- in this book at all; yet it is illicite, and lence of liberal principles, although this the author ought to be convicted for it. court was abolished, the restrictions And that is for a public notice to all on the press were confined, and a cen- people, and especially printers and sorship was established, which pro- booksellers, that they ought to print duced from Milton his celebrated and no book or pamphlet of news whatmost eloquent essay in favour of un soever without authority. So as he is licensed printing. An essay from to be convicted for it as a thing illiwhich I shall have occasion hereafter cite done, not having authority.” “If to quote, as high authority illustrating you find him guilty and say what he is and enforcing the principles advanced guilty of, we will judge whether the in this cause.
thing imports malice or no.” 7th St. The restoration of the Stuarts Tr. 1127. did not augment the freedom of the After this charge, in which the jury press, and, and after this event the
are repeatedly told, that they have state prosecutions for libels against no concern with the question of malice, the government begin to appear in the they retired, and in an hour after reports of the common law courts. brought in a verdict of guilty. WhereThe first case to which I shall refer upon they received from the lips of is that of John Twynn, who was exe this imaculate judge, this high com.
mendation, "you have done like hon- alarmists to make the nation believe est men." And his worthy coadju. that he was murdered by the Jesuits. tor, the then recorder of London, Sir So too in 1693, after the revolution George Jeffries, replied, “they have by which the English people flattered done like honest men."
themselves their liberties were secured, In this case is to be found the ori. Wm. Anderton was executed for a gin of the doctrine, which the honour-libel. 12 St. Tr. 1246. able judge who tried this cause laid In 1719 Littleton Powys took occadown as a rule for the jury, and we are sion, in his charge to the grand juries willing that it should have all the weight at the assizes, to express his opinion, due to its antiquity, and to its pure and that of his brethren, concerning and venerable orgin. Something, how, “the base libels and seditious papers, ever had now been gained in England whose number had become intoleraby the efforts of the presbyterians and ble,” and respecting which he depuritan whigs. Men were no longer clared "that the government would caught up and executed. The Starr not be at the trouble of inquiring after chamber was abolished, and libellers the authors, but would consider keepwere brought before the courts of com- ers of coffee-houses responsible for mon law. The crown, as before, was what were found there." still hostile to the press and with a view In 1729, at the trial of John Clarke, of keeping it in a state of complete who was only a pressman, and in control, the doctrine that malice was 1731, at the trial of Richard Franklin, a legal inference was invented, as a the publisher of the Craftsman, the substitute for mere arbitrary will and same doctrine as to the malicious inpower. Juries were told to find guilty tent was reiterated, and the jury were upon proof of publishing, and the told that it was a legal inférence, courts would then determine whether which it was the province of the court malice was imported.
to make, and that they had nothing to Juries however would not always do with it. acquiesce in this doctrine; and in the At the same time, efforts were made celebrated case of the seven bishops, to introduce the English law of libel they took upon themselves to deter- into this country. În 1735, John P. mine the question of malice, and ac- Zenger, who then published a weekly quitted the defendants. The conflict journal in the city of New York, was now between the court and the jury, prosecuted by information for a libel had fairly commenced.—The judges, upon the government of the province. always striving to retain the power of Great exertions were made by the godetermining the real question at issue vernment to procure a conviction, and in libel prosecutions, i. e. the guilty or two respectable counsel were struck malicious intention of the defendants, from the roll for signing his excepand the juries generally acquiescing, tions. All evidence of the truth of but occasionally, in matters where the his publication was rejected by the public mind was highly excited, 'ac- court; but the counsel for the defendquitting, in spite of the directions of ant contended, that the jury might find the judges. In this contest, although a verdict for the defendant from their the destined victims of arbitrary power own knowledge of the truth of the would sometimes be protected, it was publications. This they did do, in dealways with an effort; and in the na- fiance of the charge of the court, and tural course of events, they were sa thus ended the first attempt to introcrificed to the power of government. duce the English law concerning po
Thus in 1692 we find Thompson, litical libels into this country. Paine, and Farewell convicted and In 1752, another contest took place punished for publishing, that Sir Ed. in England, between the court and the mondbury Godfrey had murdered him- jury, respecting Wm. Owen, who was self; it then being an object with the prosecuted for a libel upon the house
of commons, and the jury acquitted joy of the popular party. 20 St. Tr. the defendant, although the proof of 894. publication was clear. 18 St. Tr. The same doctrine was advanced in 1228. The court catechised the jury the very words I have just used, in the upon their bringing in the verdict, but trial of Woodfall, the printer of the they adbered to it. * Upon which, letter; and in this case the jury gave (as the report has it,) the court broke in a verdict of “guilty of printing up, and there was a prodigious shout and publishing only." Ib. 899. In in the hall.” This was the third con this last case, a motion was made for test, in which the jury prevailed. The arrest of judgment by the defendant's first was in the case of Bushnell, and counsel, and a motion for judgment by the second in that of the seven bishops. the counsel for the crown. The court
The elements of a greater conflict, ordered a venire de novo, but the however, now were gathering. The cause was never again tried. Ib. 921. movements of the ministry in refer These decisions produced great exence to this country, then in a state of citement in England. The causes colonial dependence, were only indi were considered, and justly consications of the spirit which animated dered, as trials strength between the councils of the government, and the great political parties of the day: of its hostility to civil freedom. The the one endeavouring to augment the same feeling which urged our ances powers of government; the other tors to resistance, animated the whigs striving to restrain them within the of England, and caused violent do- limits of the constitution. This great mestic parties. Wilkes attacked the contest, of which the elements had ministers in the North Briton. Junius long before been gathering, was now overwhelmed them with invective, de- at its crisis. The government aimed, nunciation, and sarcasm, in the Daily by the stamp act and taxation bills, to Advertiser; and after prostrating the reduce the North American colonists servants of the crown, he laid his sa to a state of absolute vassalage, and crilegious hands upon the Lord's to crush the opposition at home by a anointed himself. This bold attack course of measures, of which the proexposed the publishers and sellers of secutions for libels, and secretary of the celebrated letter to the king to state's warrants, formed a part. These state prosecutions for libels.
measures were all features of the John Almon, a bookseller, was first same policy, and indicated the same brought to trial in Middlesex, where despotic parentage. the jurors were more under the influ The liberties of the Anglo Saxon ence of the crown than in London. race were at stake, and fortunately for Defendant did not know of the public the cause of civil freedom, its defence cation, but the doctrine of the judges was intrusted to men of uncomproas to intention prevailed, and the de- mising character, of clear minds, and fendant was found guilty. John Mil- undaunted resolution. Though Lords ler was next tried before a London Mansfield, Bute, and North, aided by jury, and the defendant's counsel con the whole power of the British crown, tended that they were to pass upon the threatened to crush all who thwarted intent of the defendant, but Lord their will; the friends of English Mansfield told them that the intent, liberty were encouraged in their resistmalice, &c., were mere formal words, ance by Camden, Chatham, and Burke, “mere inferences of law, with which whose principles were also enforced by the jury were not to concern them- the American congress. selves." They were only to decide The warrants of the secretary of upon the fact of publication, and the state were adjudged illegal in the case meaning of the inuendoes." The of Rochford ads. Sayre. The docjury however thought otherwise, and trine of the courts respecting libels, acquitted the defendant, to the great although destined to undergo a more
protracted discussion, met with a simi- to punish them in an exemplary manlar fate.
ner for their malversation." The principles advanced from the A motion was also made at the same bench in the trials of Woodfall and time, in the house of commons, prothe other printers, immediately became posing an inquiry into the conduct of the subject of parliamentary animad- the judges; and one of the specific version.
charges brought against them was, Chatham commented upon them that they had claimed the right to with great severity in his speech, rela- judge of the intention, which doctrine tive to the Middlesex election, and was stigmatized as illegal and tyranstigmatized them “as contrary to law, nical. This motion was resisted by repugnant to practice, and injurious to the ministerial party, who prevailed the dearest rights of the people.” on a division, 184 against 76, for the Lord Mansfield, who was then present proposed inquiry. in the house of lords, was compelled The effect of these animadversions by this public attack, to enter upon a was, to produce a notice on the part defence of his conduct. A debate ac. of Lord Mansfield, for a call of the cordingly occurred in the house of house of lords on the following Mon. lords, in which Lord Camden, the day, on a matter of importance, which former chancellor, took part. The he had to communicate to them. It remarks of this learned and upright was generally supposed that this call judge are too pointed respecting the was preparatory to a free and open doctrine in question, to be suppressed. discussion of the offensive doctrines, I read them from Dodsley's Annual which he intended to bring on in the Register for 1771, p. 27. He said, house of lords. But upon the apthat," having passed through the high- pointed day, Lord Mansfield shrunk est departments of the law, he was par- from the discussion, and merely inticularly interested, and tied formed the house that he had left a down by duty, to urge the making of paper with the clerk, containing the the inquiry into the conduct of the unanimous opinion of the court of judges: that if it should appear that king's bench in the case of Woodfall, any doctrines had been inculcated, for the perusal of any one. contrary to the known and established It was then asked if the paper was principles of the constitution, he would to be entered upon the journals of the expose and point them out, and con- house, to which a reply in the negative vince the authors to their faces of the was given ; and no motion being made errors they had been guilty of: that he by Lord Mansfield, Lord Camden could not, from his profession, but be stated to the house, that he was ready sensibly concerned for the present dis. to maintain that the doctrine laid down reputable state of our law courts, and as the judgment of the court, was not sincerely to wish that some effectual the law of England, and pressed upon method might be taken to recover their Lord Mansfield to appoint an early day former lustre and dignity; and that he for the discussion. knew of no method so effectual as the This challenge, however, was deproposed inquiry. If the spirit of the clined, and the courts continued in times has fixed any unmerited stigma theory to assert the old doctrine, but upon the character of the judges, this not often venturing to enforce in pracwill purify them, and restore them to tice, until Mr. Fox brought forward his the esteem and confidence of their declaratory act, repudiating the princicountry ; but if the popular rumours ple as slavish, and inconsistent with have unhappily been too well founded, the spirit of the common law. In all we owe it to ourselves and to pos- the discussions relating to the passage terity, to drive them indignantly from of this act in parliament, the whig the seats which they dishonour, and leaders, Fox, Erskine, and Bearcroft,