: brought before them. They have exercised D may have 1 knowledge of law, to form a judgment of the design and tendency of fuch books or papers as are brought into our courts of law under the denomination of libels. They are generally addreffed to men of all profeffions, and fuch of them as can be understood only by lawyers, are not very likely to produce tumults or infurrections. AN ingenious writer fays, 'It has often <been matter of aftonishment with me, how a notion could ever obtain, that < whether any paper was a libel or not, was a matter of law, and was there 'fore, of neceffity, to be left to the de• termination of the judges. Almost every The fame writer, in another place, inquires, by the knowledge of what law the inference is to be made, whether the writing published be a libel or not? Is it,' fays he, by the law of eftates in fee fimple or fee tail, or of ⚫ perfonal estates; or is it by the law of contingent re• mainders and devises, of limitations, purchase, grant, or ⚫ of deodands waifs and estrays, or by the rules of fpecial pleading? P. 48. ' opinion opinion has fome little foundation for ' it; and, I think, the prefent must have arifen from the judges having formerly ⚫ determined the matter. But it could not then be otherwife; because the profecu'tions for state libels were always carried ' on in the Star-chamber, where there was no jury. And it is felf-conviction to my felf, that this gave rise to so strange a ' conceit 18.' THE fame writer obferves, that " Any "words almost may be used to convey a "libel. There are no technical or particu"lar words appropriated to the purpose; "nor is there any peculiar form of fen"tence requifite. A man may render the "fame words libellous or not, by the ap plication he gives them, whether direct, " ironical, or burlefque, in jeft or in ear"neft. The subject is generally political, 18 Another Letter to Mr. Almon, in matter of Libel, P. 41. D 2 ❝ not "not legal; and a jury, particularly a fpe"cial jury, can collect the drift of the "writer, or publisher, as well as the ablest "civilian, or common lawyer in the land"." BLACKSTONE, though he has too implicity copied former law-compilers, in what he has faid on the fubject of libels, yet confiders the criminality of a publication not only as the principal object of inquiry, but also as a matter of fact. • In a 'criminal profecution,' he fays, the tendency which all libels have to create ani'mofities, and to disturb the public peace, ' is the fole confideration of the law. And, therefore, in fuch profecutions, the only 'facts* to be confidered are, first, the making 19 Another Letter to Mr. Almon, in matter of Libel, ·49. * Since the above was written, having examined a later edition of the Commentaries, I find that Blackstone has altered the paffage here cited, and inferted the word points inftead of facts. This is an evident accommodation to the 'making or publishing of the book or writ'ing; and fecondly, whether the matter be criminal and if both these points are against the defendant, then the offence against the public is complete""." NOTWITHSTANDING the pains which judges have fometimes taken, to perfuade juries that they had nothing to do but to find the mere fact of publishing, or of writing or printing, they have often discovered fomething that appeared very much like an internal conscioufnefs, that they were at leaft upon doubtful ground, and that juries, if they poffeffed any degree of spirit or acutenefs, would not implicitly follow their di the doctrine that has lately been fo zealously propagated upon this fubject; and the paffage is also now better adapted to that glorious uncertainty in the law, the promotion of which feems to be one great object of some of its fages. But it is manifeft, that the original and uncorrupted opinion of Blackftone was, that the criminality of a book or paper, whether it was, or was not, a libel, was a queftion of fact, and not a queftion of law. 20 Commentaries, Book IV. ch. 11, §. 13. edit. 4to. Oxford, 1769. rections. |