for writing, printing, or publishing but merely to inquire into the fact of publication, and into the innuendoes, or application of the blanks, if there be any; and if the publication be proved, they are to find the defendant guilty, leaving the innocence, or criminality, of the book or paper styled a libel, wholly to the determination of the court. Whether fuch book or paper be in law a libel, is, we are told, a question of law upon the face of the record; and to the determination of this the jury are not competent.

THIS doctrine, though not very ancient, is certainly not new. It was maintained, in the last century, by fome of those judges, and crown lawyers, who were enemies to the rights of juries, and to the freedom of the press; and their example has been copied fince, and much legal dexterity exerted, in order to prevail on juries to fubmit to this diminution of their power and

importance. The doctrine, however, has been repeatedly and ftrongly oppofed, by these who were friends to a free press, and to general liberty. It was, indeed, manifeft to every man, who thought coolly and impartially upon the subject, and who could diveft the doctrine of the technical obfcurity, in which it appeared to be intentionally involved, that it would render juries useless in cafes, in which, of all others, their interference was the most neceffary to the security of the fubject; and that it could not juftly be confidered in any other light, than as an extenfion of the power of the judges, to the prejudice of the most facred and important rights of English juries.

NEITHER by the ancient common law of the land, or by any statute, have juries ever been deprived of the power of bringing in a general verdict, in trials for libels, any more than in any other cafes. All that

is

is called law upon the subject is only the opinion of certain judges, occasionally delivered, and manifeftly calculated to extend their own jurifdiction. But no ufurpation on the rights of juries ought to be fubmitted to, and particularly in criminal profecutions for libels, as in thefe cafes the influence of the crown is especially to be apprehended. In the ordinary cafes that come before the judges, as they have no interest on either fide, it is natural for them to deliver their opinions, in general, with impartiality. But, in trials for libels, it has been no uncommon thing to fee in the judge, before whom the cause was tried, a manifeft defire tò convict the defendant; a defire that has been apparent to every man in the court. It is in fuch cafes as thefe, therefore, that English juries should exert their right of judging for themselves; and in which they should refolutely refuse to bring in a verdict of guilty, against those whom they are appointed to try, un

lefs

lefs they have a full conviction that they have been guilty of fome criminal act. It was in order to give the fubject this fecurity, that juries were appointed; and if they do not exert the power, which the conftitution has given them in such cases, they violate the truft repofed in them, and are themselves unworthy of the protection afforded by the laws of a free country.

THAT judges, appointed by the king, may have an improper bias on their minds, in caufes between the crown and the fubject, is a very ancient, and certainly a very rational idea. It has, therefore, ever been thought a great advantage, that, in fuch cases, the subject should be protected from any undue influence in the mind of a judge, by the interpofition of a jury. But the fubject would be wholly deprived of this protection, in trials for libels, if juries were enly to inquire into the fact of publication,

which is feldom doubtful, or difficult to prove, and entirely to leave the merits of the publication to the determination of the court. It may also be observed, that it would be the more improper to invest the judges with the exclufiye power of determining the criminality of libels, because they are at present invested with a power of discretionary punishment, This is, perhaps, too much; but surely, in a free country, the fame men ought not to be invested with the fole power of determining what may, or may not, be innocently written or published, and also with a power of difcretionary punishment.

JURIES, in all criminal profecutions, have an undoubted right to try the whole matter in iffue before them; and nothing can be more abfurd, than to fuppose that juries, in trials for libels, are to find a fellow-citizen guilty of a crime, though they have no conviction of his having done any

thing