were only two points on which they were sworn to give their verdict: there were only two points on which, according to their oath, they must determine. That as for the intention, the malice, sedition, or any other still harder words which might be given in informations for libels, whether public or private, they were mere formal words; mere words of course; mere inference of law, with which the jury were not to concern themselves; that they were words which signify nothing; just as when it is said in bills of indictment for murder, "instigated by the devil," &c. that the dashes in the paper were filled up in the record, by giving any other sense to the passages; if they had, the jury would have been to consider which application was the true one, that charged in the information, or suggested by the defendant. That the jury might now compare the paper with the information: that if they did not find the application wrong, they must find the defendant guilty ; and if they did find it wrong, they must acquit him: that this was not the time for alleviation or aggravation, that being for future consideration: that every subject was under the controul of the law, and had a right to expect from it protection for his person, bis property, and his good name: that if any man offended the laws, he was amenable to them, and was not to be censured or punished, but in a legal course: that any person libelled had a right either to bring a civil or a criminal prosecution: that in the latter, which is by information or indictment, it is immaterial whether the publication be false or true: that it is no defence to say it `is true, because it is a breach of the peace, and therefore criminal; but in a civil prosecution, it is a defence to say the charges in the publication are true; because the plaintiff there sues only for a pecuniary satisfaction to himself; and that this is the distinction as to that nature of defence.-His lordship said, he was afraid it was too true that few characters in the kingdom escaped libels: that many were very injuriously treated-and if so, that the best way, to prevent it was by an application to the law, which is open to every man: that the liberty of the press consisted in every man having the power to publish his sentiments without first applying for a licence to any one; but if any man published what was against law, he did it at his peril, and was answerable for it in the same manner as he who suffers his hand to commit an assault, or his tongue to utter blasphemy." In the Letter from Candour to the Public Advertiser,' it is mentioned, that in the trial of the printers of the North Briton, No. 45, in 1764, lord Mansfield, in a very masterly manner, interrupted the counsel, and informed them, and afterwards in an elaborate discourse clearly instructed the jury, that the words in the information, charging the paper to have been published with the most wicked intent, in order to excite his majesty's dutiful subjects to the two points mentioned were the only things for the consideration of the jury. That if there was indeed nothing criminal in Junius's Letter, their verdict of guilty would do no harm, would be attended with no consequences. The Court would consider of that; the Court were the only judges of that. If that is made appear to the Court, the Court will arrest judgment, He said, my brother Glynn has admitted that the truth or falshood of a libel, whether public or private, however prosecuted, is out of the question. At this assertion of lord Mansfield every man in court was shocked. Serjeant Glynn was astonished, and, on application made to him instantly by several of the counsel and his friends, to contradict lord Mansfield's assertion, Mr. Glynn, with that honest diffidence natural to him, asked them, "Good God! Did I admit any thing like what lord Mansfield says? Did I, by any incorrectness in the expression, or by any mistake, use words that could be so misunderstood or misinterpreted ?" Every gentleman near him assured him that he had not. Whereupon Serjeant Glynn rose, and very modestly assured his lordship that he had never admitted what bis lordship supposed.Lord Mansfield begged Mr. Glynn's pardon, and turned it off with great dexterity, just saying slightly, "Oh! I find I was mistaken; well then, my brother Glynn is of a different opinion:" and then instantly proceeded :—As you have been told these are the only two points for your decision; if, indeed, you think that the blanks in Junius's Letter can have another application than that put upon them by the information, that is a matter for your judgment; but you must observe, that even the counsel for the defendant have not pretended to put any other meaning to the blanks. If you think the evidence for the publication not sufficient, that is likewise a matter for your consideration; but you must observe, that even the counsel for the defendant have admitted the publication. Lord Mansfield then observed that the laws and proceedings in regard to libels were perfectly equal, equally advantageous to high and to low: for that the low might prosecute for a libel, if they were defamed, as well as the rich, and would be sure to have justice done them by the law. He sedition, and charging it to be a false, scandalous, and seditious libel, were words of course; like 'corrupt' in an indictment for perjury, or like those in an indictment for murder, charging the murder to have been committed at the instigation of the devil, and that the jury ought not to regard them at all. The author of the letter, after making this statement, and comparing the language so ascribed to lord Mansfield with that of Jeffreys in the case of sir Samuel Barnardiston, see vol. 9, pp. 1349, 1351, 1355, remarks upon the concurrence of the two chief justices not only in sentiment but in expression. said, that it was not then the proper time for aggravation or alleviation, or consideration of the matter of the Letter, or of Mr. Woodfall's intention; to be sure the Court would consider all that, when they should come to pass sentence. As for the liberty of the press, (said he) I will tell you what that is; the liberty of the press is, that a man may print what he pleases without a licenser: as long as it remains so, the liberty of the press is not restrained. It is the same thing as in all other actions: a man may use his arm; but he must not strike his neighbour: a man may use his tongue, but he must not speak blasphemy.-At the word blasphemy' so lugged in, there was a general whisper rau through the Court: for every one perceived the aim of it, Mr. Wilkes sitting so very near the Chief Justice. About twelve the jury withdrew. At half an hour after three lord Mansfield began to whisper with serj. Davy, who had been out of court and returned, with the Attorney General, with Mr. Wallace, and the other crown lawyers. In the space of a quarter of an hour he sent three times to the jury to know if they were not agreed in their verdict. He said he would not sit longer than four, if the other business of the Court should be over. The jury not returning, lord Mansfield proposed to Mr. Lee that he should sign an agreement with Mr. Attorney General, that the jury might give their verdict to lord Mansfield privately at lord Mansfield's house. After some time and persuasion from lord Mansfield, Mr. Lee consented, and signed such agreement; after which lord Mansfield pulled off his hat, and said, Mr. Lee, you have done right to consent. Lord Mansfield then adjourned the Court, and retired. The jury continued undetermined till near ten at night, when they agreed upon their verdict, and went in hackney coaches from Guildhall to lord Mansfield's house in Bloomsbury-square, and gave their verdict in these words: "Guilty of printing and publishing only." Lord Mansfield stood at his parlour door, and made the jury give their verdict in his hall where the footmen were, and when they had given it, he withdrew, without saying a word. July 3, 1770. The KING against HENRY SAMPSON WOODFALL. Since the verdict of the jury in this cause, two motions had been made, which were this day brought to receive the decision of the Court. The first was upon the part of the crown, Why the verdict should not be entered up according to the legal import of the words; the other, Why the defendant should not be discharged from any judgment on this verdict. Mr. Serjeant Glynn, of counsel with the de The motion was thus worded at the special direction of lord Mansfield; who in these causes is always of counsel with the crown.Lond. Mus. fendant, first observed slightly upon the absurd motion for amendment, that was made on the side of the crown, which, if carried, would still require itself to be amended, or leave the matter as much at large as ever; since the clerk must be thereby reduced to make another application to the Court, to be informed, what that legal import is: after this he proceeded in the following manner, taking up the argument upon both the motions united : My lords; this is an information for a seditious printing and publishing of a paper signed Junius: the jury have found Mr. Woodfall guilty of printing and publishing only. 1. I shall first contend that this is an acquittal. The charge brought before the jury, is grounded upon the defendant's evil and seditious design in publishing. The jury find the publishing only. This then is not convicting him of the charge; which is, the seditious intention. It is first necessary to prove upon the trial, the fact of publication; next the construction put upon the paper in the information. These are the points which are to be given in charge to the jury; and the jury must be convinced of both. By the general word of guilty,' the jury find the whole charge to be true. They have not done so. They have found the fact of publication merely; but they have added negative words, to exclude every thing else. To what the jury do not say, there is by law a negative. here the jury have themselves taken care, that their silence shall not be misinterpreted. Had they been silent, whether the paper was a libel or not, and not referred it to the opinion of the Court, their silence must have acquitted; but here they have used the word only,' expressly to exclude every idea of a crime. But If juries may be justly said to negative every thing they do not find, in a question of civil property, much more must they be said to do so now, where the criminal motive makes the offence they have in charge. I do not say, that a strict and literal proof must be brought of every part of the information; but I do say, that criminal intention is the essence of a crime, and must enter into every idea of guilt. Of this criminal intention the jury are the judges; and if they exclude that, the defendant is acquitted. To support a general verdict of guilty, it must appear that the jury believed the paper libellous. Whether libellous or not depends only upon the construction put in the information. This construction they have excluded; therefore, though they have not said in as many words, that the paper is not a libel, they have negatived the libelling construction, and said as much, in consequence by legal inference. Where the subject-matter before the jury are not mere legal words, or words of legal import, it is, in my opinion, the province * So determined by all the judges in the Exchequer-chamber, Withers v. lord Jersey.➡ Lond. Mus. the construction unknown, which must necessarily be included in every verdict of guilty. of a jury to find, whether they are criminal or not. Juries are judges both of law and fact; I mean, as far as the former is involved in the latter. The jury therefore had a right to consider the paper charged as a libel before them. They might take it upon them if they pleased, or they might resort to the judges for advice. Here they have, by their word of exclusion, gone as far as to determine, that there is no guilt in the paper; whether they have determined wrong or right is another question. They may, no doubt, determine generally; and where they so determine against the clear proof of the fact, and letter of the law, (both of which constitute the crime) they determine at the peril of their conscience. Yet a matter may be clearly libellous, and a man not incur guilt by the mere publication. As in the case of a friendly admonition from a father upon a supposed misconduct of his son; or of giving testimony in a court of justice; the same of giving the character of a servant, and other cases that might be mentioned. Here the intention becomes material, and properly inquirable by a jury; though this is not capable of direct proof, it is, however, to be discovered by inference, of which the jury are the judges. But let what arguments there will be made for this new-modelling the verdict of the jury, there is one superior to all the rest against it; which is, that the defendant would be thereby precluded from taking the sense of a superior court of review upon the verdict, as at present formed. If the defendant is found guilty, why is not the judgment entered as it is found, and the sentence of the Court passed upon him? It will then appear, by writ of error to the Lords, what this verdict was, by which he is said to be convicted. But if this new-modelling takes place, he will be for ever deprived of this advantage; which indeed is the only reason I can suggest to myself for the attempt that is made to obtain it. For if it is a general verdict of guilty, I say again, it need not be entered otherwise than it is found. No case can be produced, where the words of a general verdict have been altered to make room for other words. They would indeed be words different from the meaning of the jury: in short, if it is not a verdict of conviction, your lordship will not alter it to make it so ; and if it is, let it, as it must, be entered in the words wherein it is found. 2. Upou the second head, I am to contend, Mr. Lee on the same side. It is an absurd that if the verdict is uncertain or insufficient, and impossible idea, that the jury should conthere must be a new jury summoned to try the vict that man of a libel, whom they meant to cause afresh. If I am not authorised to say, acquit of a crime; and this meaning is plainly that the verdict amounts to an acquittal, I am demonstrated by the word of exclusion, which sure, they are as little authorised on the other they have introduced into their verdict. The side to say, that it amounts to a conviction. If jury will never be said to have found such a the former interpretation is not satisfactory, the verdict, as shews their intention to find him latter certainly cannot be so. If some other guilty of the charge laid in the information. sense is given to the word only' than what They meant, no doubt, to have found him the I have put upon it, the whole becomes doubt printer and publisher of the paper, as it ap and ambiguity; and a new trial must be had peared in the Public Advertiser, and not as by another jury. This cannot be taken other- coupled with all those heavy charges and inwise than as a general verdict; and in general nuendoes, as described in the information. verdicts, nothing is left to inference or intend-There are strong cases in the law to prove, that ment.*"You must have the understanding of another man, hear with other's ears, and see with another's eyes, before you can know what a jury meant, upon what they have not expressed." There is in the books the plainest case, where a direct inference must unavoidably be made from the finding of the jury; and yet that not being expressed, the verdict was rejected as insufficient.+ The jury had found the damages to the plaintiff, in the defendant's not keeping his promise, and yet, not having found directly that he made such promise, the verdict was set aside. If then we suppose the other side right in saying, that the jury have found sufficiently to bring the guilt of the defendant before the Court; it is at least saying so, without knowing what the jury meant, as to the construction put upon the libel. Let them model it as they will, they cannot make it a general verdict of guilty, without leaving their sense upon Vaughan, 75. Roll's Abr. 693. a partial finding is insufficient. Where a man was charged with an intrusion into a house and lands, and the jury only found the intrusion into the lands, the verdict was declared to be wholly void. But in this case, let the finding of the jury be what it will, it is impossible for the Court to alter it; for it is most decisively laid down, in books of the greatest authority, that the Court cannot amend a general verdict in a criminal matter. On the Part of the CROWN. Solicitor General (Mr. Thurlow). I know no rule, or case in law, by which the silence of * Because the alteration will not appear upon the record; and by some strange constitution in the jurisprudence of this country, no court of review can take notice of the misconduct of judges in making such alterations.— Lond. Mus. This, I suppose, alludes to lord Mansfield's directing the informations against Wilkes to be amended, see vol. 19, p. ↑ 2 Leonard, 296. 1075. a jury upon any fact, that should be made a part of their verdict, must be construed to imply the acquittal of any defendant. On the contrary, there is authority in the law upon the very case of a libel, where a partial finding of the jury was held sufficient. A charge was brought for the writing, collecting, and printing a number of ballads, and thereby forming a libel upon the king. The jury found the defendant guilty only of the printing; and this verdict was allowed to be good upon the issue. Wherever the jury shall have omitted a matter of fact, the Court will not intend that fact; neither will they conclude the defendant innocent, because the jury have not said that he is so; but they will then order a new jury to come and try the cause again. If it is said that the jury meant to exclude a conclusion of law, that were monstrous. To say that the jury found the fact of publishing the paper, as charged in the information, but that they denied the interpretation of the law upon it, were bringing them wholly out of their province; for they are only judges of fact, and with the law they have nothing to do. If the jury are said to have found the publication of some other paper than that as charged in the information, it is saying that they have found a fact, which they are not charged to enquire into. This were making them to have done more absurdly than they have; and what they have manifestly no right to do. Their words must necessarily be referred to something; but why substitute a subject out of the information? For if they have found that the defendant only printed and published the libel charged in the information, they have found what will ever be enough to convict. The jury cannot prevent the judgment of law from passing upon the facts, which men are found to have committed. The jury are to inquire into a fact as charged in the information; and the short answer they give in the words guilty or not guilty, must be referred to that particular charge; otherwise they say nothing. It is not necessary for me to contend, that any facts shall be supplied by innuendo in the finding of a jury; but if the jury meant to exclude a conclusion of law, I dare say your lordships will not attend to it; for when a jury has found sufficient facts to support some verdict in the cause, they cannot go further, and find a wrong conclusion of law. When the jury have found sufficient matter of fact, your lordships will supply the matter of law; as was determined in the case of lord Paget; where, in the question of a fraudulent conveyance, the jury having found sufficient special matter, the Court inferred the conclusion of law, that the conveyance was fraudulent, though the jury had not expressly found the fraud. However, in this case, the jury have expressly found some guilt; and it is now become the province of this court, to say what that guilt amounts to. Mr. Morton. The subject for the jury to Moore, 194. Dyer, 362. have enquired into, was the application of this libel to the person, upon whom it is charged in the information to have been made. I confess that the matter here charged would not be libellous, if it affected any body else than the king. The jury have found the fact of printing and publishing only; and that was the only thing they had to find. For what is the crime charged? It is the printing and publishing the matter, and things contained in the information. Upon which the jury seem to me to have said, that he is only guilty of printing and publishing the paper charged in the information (for that is all we have to add); and this is the same as if they found him guilty generally. Mr. Wallace. The verdict is full, and requires no intendment. The charge is for printing and publishing a libel; the defendant says he is not guilty of the charge: the jury, being asked, they say he is guilty; that is, only of printing and publishing; which is the same thing as finding him guilty generally. It would have been material if the jury had excluded in this verdict the allusions made from the paper in question to the libel in the information. As to the objection, that they have not found the intention, that will avail as little now as it did before in the case of the King and Beare.* It was objected there also, that the jury had only found part of the charge, and that so much as they found did not infer any illegal act; for that there are cases in which it may be lawful to write a libel, as for a clerk drawing an indictment, or a student taking notes in court: but the Chief Justice said, their finding such a fact in the case of an information must necessarily infer a crime. Mr. Dunning. Verdicts are not to be entered in any case in the precise words the jury give them; nor are they so. Something is always to be added. Had the word only' been omitted, there is no doubt the verdict in this case would have been competent; for the clerk would have added, 'the matters charged in the information.' Let those words be still added, and the insertion of the word 'only' will make no difference. All the books agree, that the jury may, in these instances, take the law and fact together, and give a general verdict. This I know has been disputed; but whether disputable or not, is another matter. However it has not yet been insisted, that juries ought to take this upon them; nor will I intimate my own opinion upon it. In this case at least the jury have not taken upon them to decide the law. They have said, that the defendant is guilty of printing and publishing a certain paper; but whether there is any guilt in that, or what degree of guilt, they do not chuse to determine; they leave * See this case considered much at large in 'Another Letter to Mr. Almon. The case is reported in Lord Raymond, Carthew, 19 Mod. Salk. that to others; for their own part, they beg to be excused. It being then at best a matter of dispute, whether the jury should decide upon the law or not, and as they have not done so expressly here, why should they, by inference, be concluded to have done so, in determining the paper not to be a libel, upon those perils to which they will be thereby subjected. As to the objection, that the alteration will not appear upon the record, when removed by error into another court; this goes no further than in every other case, when the court or clerk add words to the general finding of juries. Besides, this is a matter of fact, whether the jury have found the defendant guilty, or not; and no matter of fact is subject to any revisal by error. Upon the whole, I am satisfied, that the meaning of the jury was to find the fact; and whether libel or not, to leave to the determination of the Court. Mr. Walker. As to the objection, that the jury have not found the intention, it is manifest, that if the jury find the fact, they must find the design with which it is done; for the defendant is a free agent, and therefore answerable for the legal consequences of his own act. Mr. Serjeant Glynn in reply. It seems to be allowed by all the counsel for the prosecution, that the verdict, as it stands at present, requires some kind of amendment; without which no judgment can be given upon it. I beg leave to say, if such words were to be added, as the gentlemen on the other side would wish to annex to the words found, such addition would flatly contradict the obvious spirit and meaning, as well as letter of the text, and make the whole such a jumble of contradiction and nonsense, that no judgment could possibly be given upon it. Mr. Dunning says, no verdict can ever be entered in the mere words of the jury, without adding something. I confess it: but what is that something, and who makes the addition? To the bare words 'guilty' or not guilty' is added, of the matters and things charged in the information' in such formal words as paraphrase the clear indisputable finding of the jury, without, in the smallest degree, impairing, amplifying, or altering the sense. This entry or addition is made by the clerk; and such an addition, should the clerk neglect to make it, the Court will afterwards supply, as a mere clerical omission. But it is one thing to correct the mistakes of the officer or clerk, and another to supply the intentional omission of the jury. When the jury bring in a common verdict, the clerk enters it in the common form; but the clerk has no right to expunge, or erase, or alter the words of the jury, when they have not found them in the common way; and I affirm, that the Court has no more power to supply such an omission of the jury than the clerk. The verdict of the jury is not at all altered or impeached by supplying clerical defects; but in this case, the sense of the jury, not of the clerk, the verdict itself would be materially and essentially af. fected and changed by the alteration proposed to be made by the Court. It has been said too, that the jury meant to find the fact specially, or to bring in a special verdict, but is it a fair inference from the words that they meant to do so? It is well known, that in a special verdict all the facts must be found, and it must conclude with desiring the advice and opinion of the Court upon the whole: is this verdict so circumstanced? Do the jury bere ask any question of the Court, or crave its assistance to guide them? But if it were a special verdict, the Court could only determine upon what was expressly found, and not upon intendments and constructions of their own raising. However, we beg leave to insist that this was not meant as a general verdict, and that the jury understood it to be a verdict of acquittal; for, in a general verdict, they decide upon the whole of the case, and upon what they are silent, they acquit the defendant; by saying nothing of the paper, therefore, they find it no libel. Were I to admit the criminality of the paper to be a question of law, it is surely such a question as is comprised in the issue which they must necessarily take into their consideration when they give a general verdict. Whatever they have not decided upon, they have certainly negatived. Had they meant to ease their own minds as to the law, they could have done it in no other way, than by finding specially. This is the same case as that of Elizabeth Canning,† and of Penn aud Mead. There the jury used the word 'guilty,' and yet excluded the crime.§ Let us suppose, for argument sake, that the jury had thought, there was some degree of guilt in what they said, and yet negatived all the crime by some subsequent word: the verdict would then have been contradictory and repugnant to itself, and there must have been a new trial. Printing and publishing are not the only things given in charge to the jury; the construction is likewise in their charge; and by using the wordonly,' they have excluded this part of that charge. The counsel for the crown have confounded the cases of general with those of special verdicts. Mackennie's case was a special verdict. The conclusion there, that the blow was felonious, was apparent from the facts, which were found. The case of the King and Beare was very distinguishable from the present; nor is there any case, where, in a general verdict, Vol. 6, p. 963. • Non tali auxilio. Lond. Mus. + See vol. 19, p. 669. § See, also, the duke of Newcastle's verdict in the duchess of Kingston's Case, p. 625, of this Volume. In a trial for forgery just now bad before Mr. Baron Wood, at York, Summer Assizes 1813, the jury at first brought in the verdict "Guilty of uttering the forged notes, but without knowing them to be forged." As to "guilty of publishing only," see in this Collection the great Case of the dean of St. Asaph, at Salop, A. D. 1784. |