ter of by the dexterity of a Judge, no writing whatever could poffibly escape conviction.

Informations, ex officio, it was long thought, could only be filed where the King was immediately concerned, and fo the old books fay; but, it is now certain that they are not limited by any thing befides the difcretion of the Attorney-General, who is an Officer of the Crown, durante bene placito, and not upon oath. They may, in time, become an ordinary engine of Adminiftration, as much as any Gazette or common Courier. Indeed, the fecrecy eafe and certainty of laying a man under a heavy profecution in the Crown-Office, without any controul, by this mode of information, are what render it much more formidable than the common, regular, old information, which can only be filed by leave of the King's Bench, after a public hearing in open Court. It is a power that is, in my apprehenfion, very alarming; and a thinking man cannot refrain from furprize, that a free people fhould suffer fo odious a prerogative to exift. It has been, and may most certainly be again, the means of great perfecu

In truth, it seems to be a power neceffary for no good purpose, and capable of being put to a very bad one. For, although a man may doubt whether a Grand Jury, in times of violent party, would always find a bill of indictment or prefent, yet there can be none but that a Court of King's-Bench would grant an information, wherever it could, by any Adminiftration, be applied for with the leaft foundation. It is ftill more wonderful that, fince this prerogative is endured, there has been no act paffed to fubject the Attorney General, provided he did not purfue his information, or upon trial was non-fuited, or had a verdict against him, to the payment of full costs to the party abufed.

However, the exercife of fuch a grievous prerogative lays a ftrong foundation for a Jury's retaining the privilege of determining both the law and the fact, with refpect to libels. Indeed, it is only in conformity with common parlance, that I fpeak of law and fact in libel as diftinct things, for to myself they appear to be infeparably united, A criminal profecution and trial can only be had for a crime; now, the mere fimple publication of any thing not libellous (there being no public licenfer) is no crime at all; it is then the publication of what is falfe, fcandalous and

feditious, that is the crime, and folely gives jurisdiction to the criminal Court; and That therefore is what muft, of neceffity, be fubmitted to the Jury for their opinion and determination. A decifive argument to the fame purpose may be drawn from the conduct of the Lawyers themfelves in this very matter. For, it is agreed, on all hands, to be neceffary for the Crown-Pleader to fet forth specially fome paffages of the paper, and to charge it to be a falfe or malicious libel. Now, this would never be done by the Law-Pleaders, fubmitted to by the Attorney-General, or endured by the Judges, if it was not effential to the legality of the proceeding. The King's Bench, in granting the information, only act like a Grand Jury in finding a bill of indictment, and in effect fay no more than this, That, fo far as appears to them, the paper charged feems to be a libel, and therefore the perfon accused should be put upon his trial before a Jury, whofe bufinefs it will be to enter thoroughly into the matter, hear the evidence examined, and what the Council can fay on both fides, and form a judgment upon the whole, which, after such a difcuffion, it will not be difficult for any men of common understanding to do. Whether the contents of the paper be true, or falfe, or malicious, is a fact to be collected from circumftances, as much as whether a trespass be wilful or not, or the killing of a man with malice forethought. Were I therefore a Juror, Ifhould take nothing implicitly or upon truft, in this refpect, from any man, but fhould endeavour to form my own judgment of the matter as an impartial Juror, and not as a Statesman plain truth and fact, and common fenfe, and not political convenience, far-fetched inference, or ingenious inuendo, being the proper object and intent of my oath by the law of the land. "The verdict itfelf is not an act ministerial, "but judicial, and where the Jurors give it according to "the best of their judgment, they are not finable. They can only be punished by attaint, that is, by another Jury, where it fhall be found that wilfully they gave a "verdict falfe and corrupt. Indeed, were this not fo, they would be but mere echos to found back the plea"fure of the Court."

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;

The ftrict law I know, is pretended to be, that the truth of the matter afferted is no defence against the charge of its being a libel; but that is a point which I shall never

be

;

" or fold fuch a book, or the like: for, if they should igno "rantly take this for an answer, and bring in the prisoner

Guilty, tho' they mean of the naked fact only, yet "the Clerk recording it demands a further confirmation thus, Then you fay D. is guilty of the trefpafs or mifde"meanor in manner and form as he stands indicted, and fo you fay all? And the verdict is drawn up, The Jurors do fay, upon their oaths, that D. maliciously, in contempt of the King and the Government, with an intent to fcan"dalize the Adminiftration of Justice, and to bring the fame "into contempt, or to raife fedition, &c. (as the words were laid) Spake fuch words, published fuch a book, ar did "fuch an act, against the Peace of our Lord the King, his crown and dignity,

Befides, there is a conftitutional reafon, of infinite moment to a free people, Why a Jury fhould of themselves always determine whether any thing be or be not a libel. It is this, that ninety-nine times out of an hundred, these informations for public libels are a dispute between the minifters and the people; and, in my, confcience, this very circumftance has made our Progenitors retain to themselves the power of determining both the law and the fact, with refpect to libels, altho' they waved or ceded to the Judges the power of determining the law in all other refpects. Having acquiefced in the power exercifed by the Attorney General, of informing against what he pleafes as a libel, they were refolved not to part with the prerogative of judging finally upon the matter themselves; and, in my poor opinion, had they done fo, we fhould, long be fore this, not only have loft the liberty of the prefs, but every other liberty befides. No man that disapproved the meafures of a court, would venture to difcufs the propriety or confequence of them. No man would venture to utter a fyllable in print against any power of office, and much lefs against any royal prerogative, however illegally ufurped, He would be fure to be charged with a libel by the Attorney General, and to be fined, and perhaps imprisoned without mercy, by the King's Bench, as, in fact, happened to Sir Samuel Bernardifton, whofe judgment was reverfed by Parliament after the Revolution.

Before that glorious æra, the Judges held their places at the King's pleafure, and acted accordingly. Their oath was then their only reftraint; that was fome guard, but

not

not a fufficient one, when the confequence of a non-compliance with Adminiftration would deprive a Judge of his livelihood, and raife the indignation and refentment of the Crown. Judges are now for life, and a noble fecurity it is; and yet, unless one could infure them from the common failings of mankind, from ambition, the defire of promoting their children, or, if they have no children, of providing for their nephews, one may eafily conceive that Tome influence may ftill take place even in a Judge.

But it is become more neceffary than ever, that the people fhould retain the privilege of determining the law and the fact, relative to libels, because their reprefentatives have lately, by a refolution, declared, that privilege of parliament does not extend to the cafe of a libel. I had been always in an error upon this head before, which I was led into by old cafes. My notion was not taken up in confequence of the conftruction made by the prefent Court of Common Pleas, nor did I, indeed, entirely build upon my own fenfe of the matter; but I was fixed in the opinion by the authority of that great lawyer Lord Chancellor Egerton, who, after having held the great feal for fourteen years, with greater reputation than any man before him, in a folemn argument which he delivered in the cafe of the Post-Nati, and which he afterwards published himself, upon a ftrict review, and with great deliberation, (fo that it is uncontrovertibly his opinion) has laid down the fame doctrine, and cites particularly the old determination made by the Judges in the cafe of Thorpe. His Lordfhip there fays, "Then let us fee what the wisdom of parliaments "in times paft, attributed to the Judges opinions decla"red in parliament, of which there may be many examec ples. In the parliament anno 31 H. 6, in the vacation "(the parliament being continued by prorogation) Thomas "Thorpe, the Speaker, was condemned in a thousand

•

pounds damages, in an action of trefpafs brought against "him by the Duke of York, and was committed to prifon "in execution for the fame. After, when the parliament

t

was re-affembled, the Commons made fuit to the King "and the Lords, to have Thorpe, the Speaker, delivered, "for the good exploit of the parliament; whereupon the "Duke of York's counfel declared the whole cafe at

large. The Lords demanded the opinion of the Judges, "whether, in that cafe, Thorpe ought to be delivered C 2

out

"out of prifon by privilege of parliament: the Judges "made this answer, That they ought not to determine "the privilege of that High Court of Parliament; but,

for the declaration of proceeding in lower Courts, in "cafes where writs of fuperfedeas for the privilege of the "parliament be brought unto them, they answered, "That if any person that is a Member of Parliament be "arrefted, in fuch cases as be not for treafon or felony, or "for furety of peace, or condemnation had before the "parliament, it is ufed that fuch perfons be released, and "may make Attorney, fo as they may have their freedom "and liberty freely to attend the parliament."

The Lords, in the following reign, moft folemnly ratified this doctrine, in the famous cafe of the Earl of Arundel, by a refolution nemine contradicente; and then presented to the King, the following remonftrance "May

it please your Majefty, we the Peers of this your realm 'દ now affembled in parliament, finding the Earl of "Arundel abfent from his place, that fometimes in this

parliament fat amongst us, his prefence was therefore "called for; but, hereupon a mellage was delivered unto "us from your Majefty by the Lord Keeper, that the Earl "of Arundel was reftrained for a misdemeanor, which was "perfonal to your Majefty and had no relation to matter "of parliament: this meffage occafioned us to enquire "into the acts of our ancestors, and what in like cafes

they had done, that fo we might not err in any duti"ful refpect to your Majefty, and yet preferve our right "and privilege of parliament: and after diligent search "both of all ftories, ftatutes and records that might in"form us in this case, we find it to be an undoubted "right and conftant privilege, That no Lord of Parlia

ment, fitting in the parliament, or within the usual times "of privilege of parliament, is to be imprifoned or re"ftrained (without fentence or order of the house) unless "it be for treafon or felony, or for refusing to give fecurity for the peace; and to fatisfy ourselves the better, we have heard all that could be alledged by your Ma"jefty's learned Council at Law, that might any way in6c fringe or weaken this claim of the Peers and to all that "claim be fhewed and alleged, fo full fatisfaction has

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been given as that all the Peers in parliament, upon the "queftion made of this privilege, have una voce confented

" that