the jury can be supposed to refer any matters to the Court. They have found, as their general verdict, that the defendant is guilty of nothing more than of printing and publishing; and by the word only,' applied to these acts, they have qualified and restrained that use of the word 'guilty.' They have found the defendant guilty only of a part of the charge; and for the addition or alteration which are now wanted to be made to the finding, the case becomes quite new and singular; because there is no instance of a verdict having been entered contrary to the finding of a jury, excepting in mere clerical mistakes. To say that the entry ought to be guilty generally, because, if the jury had not so intended, they would have brought in their verdict Not Guilty, would be at best, putting a sense upon doubtful words, which, if any explanation was necessary, ought to have been explained at the time the verdict was given; but it comes too late to be admitted now. If a meaning must be put by the Court upon these words, the most obvious one is that of acquittal. If we are to go out of the words for a meaning, resort to the affidavits of the jurymen. If there is no meaning in them, it is an insufficient verdict, and there must be a new trial. But if the verdict appears ever so unmeaning to your lordships, you cannot now amend it, because you have nothing to amend it by; as has sometimes been done by notes taken at the trial, to correct the misprision of the clerk. Nor can you now give a contradiction to the jury, by saying they meant to find the whole, when they declare they mean something short of it. If it is a good and sufficient verdict, it need not to be altered at all; if there is any thing more than clerical defects in it, it ought not to be altered. In the one case we are entitled to an acquittal; in the other, to a new trial. Lord Mansfield. Though the Court will not yet determine whether the affidavit of any of the jury may be read in this cause, yet I have permitted one to be read a little by way of stating it; and I there find, that the applica tion of the inuendoes is not denied; only the criminal construction put upon the paper in the information. To have denied the one would have been very material; with the other they have nothing to do. In that case, there would be no proof to them of the paper, as charged in the information. But if the jury find, that the or to explain it or to add to it, or to express a sorrow for having given it, is infamous, and the greatest inlet to iniquity, corruption, perjury and injustice, that can be devised; and therefore those who make such applications, when discovered, should be prosecuted at the public expence, fined and branded for ever. Every practice of this sort tends to lessen the force and effect of the public judicature of the country, and counteracts the guards with which the law, for wise reasons, has beset juries, by having them shut up immediately after being sworn, and no person whatever admitted to speak to them, lest some popular talk or external influence, some clandestine bias or partial representation, or intreaty should take place. Whenever any thing of the kind has in fact happened, for want of the bailiffs and parties' constant observation, it has, if made appear, been deemed to contaminate their verdict, so as to set it aside. All the jurors swearing that nothing bad passed relative to the cause would not uphold it. Those who set about a private examination, especially of one side, after a public trial had, in order to stagger a jury, and to render them dissatisfied with their verdict, act in the grossest defiance of the law, aud with the most audacious contempt of the Court they intend to affect or influence by it. It is embracery and tampering with jurors in order to defeat their own verdict. Even if after the jury be sworn and gone from the bar, they send for a witness to repeat his evidence that he gave openly in court, who does it ac cordingly, and this appear by examination in court, and indorsed upon the record, or postea, it will avoid the verdict." See as to affidavits of jurymen vol. 19, pp. 669, 675, 684, et seq. *This was the affidavit of William Sibley, In the Case of Edmund Thirkell, -Trin. baker. London Mus. Upon this passage of 5 Geo. 3, where the defendant had been con lord Mansfield's judgment, the author of Ano-victed of a misdemeanor, and afterwards eight ther Letter to Mr. Almon,' pp. 84 et seq. is very severe; and in another place (p. 67), he thus writes concerning the affidavits of jury men: of the jury signed a paper in his favour, intimating their disapprobation of the verdict which they themselves had given, lord Mansfield, and Wilmot, Just, concurred in express"The perinission to a jury to rectify or altering great dislike of such representations made their own finding, or to declare against it by affidavit, after they have once been at large and mixed with the world, would be of the most dangerous consequence; it has rarely been asked, and ought never to be granted: the idea is novel, and contrary to the fundamental principles both of law and policy. And a late transaction forces me to add farther the application to jurors, after being discharged, to hear privately and ex parte other evidence, and to make affidavits in consequence thereof, either to alter the whole or any part of their verdict, by jurymen after the time of delivering their verdict. Lord Mansfield said, "It might be of very bad consequence to listen to such subsequent representations, contrary to what they had before found upon their oaths, and which might be obtained by improper applications subsequently made to them." And Mr. Just. Wilmot thought they ought to be totally disregarded. 3 Burr. 1696. For more concerning jurymen's affidavits, see the cases cited in the Note to Hale v. Cove, 1 Strange, 642. Mr. Nolan's edition. they find any fact of publication, they must find, not the simple fact of publishing that Public Advertiser, sold at the defendant's house, but that very libel charged in the information.* The Court will advise. The following is Sir James Burrow's Report of this Case: defendant published at all, they find the paper, There may be something of a distinction in Whatever may be the inclination of my opinion in this case, it is too late to have any effects from it in this term ; therefore let it stand over to the next. REX versus WOODFALL.† This cause first came before the Court, on Friday 22nd June, 1770. Mr. Lee then moved, on behalf of the defendant, to stay the entering up judgment against him, upon the verdict found in this A cross-motion was made at the same time, by the counsel for the crown, for the defendant to shew cause why the verdict should not be entered according to the legal import of the finding of the jury. It was an information against the defendant, by the Attorney General, for printing and publishing in the Public Advertiser, a seditious libel signed Junius. Upon the trial, the jury found him guilty of the printing and publishing, only. The Court granted rules to shew cause, upon each of these two adverse motions; and ordered them both to be brought on upon the same day. Accordingly, on Tuesday, 3d July, 1770, cause was reciprocally shewn, on each. Serjeant Glynn and Mr. Lee argued for the defendant: Mr. Thurlow, (solicitor general,) Mr. Morton, Mr. Wallace, Mr. Dunning, and Mr. Walker, for the crown. On the part of the defendant, it was insisted that the verdict, as found, did not amount to find Mr. Woodfall guilty of the charge in the information; but rather to acquit him of it. Aston, Just. The jury are elected, tried, For, he is charged with printing and publishand sworn, to determine concerning the mating this as a libel, with a malicious and crimiters contained in the informations, therefore if This was a special verdict, and only made agreeable to the fact.-Lond. Mus. This might be so, if his lordship's opinion was against the defendant; not so, if otherwise; therefore if lord Mansfield had not already said enough, it were sufficiently manifest what that opinion is: as lord Mansfield received this verdict, he is indeed contending here for his own credit as a judge.-Lond. Mus. The opinion which lord Mansfield finally delivered did not verify the anticipation of this note. VOL. XX. nal intention: but the jury find him guilty of printing and publishing, only, Whatever the jury do not find implies a negative: but this goes further; it says expressly, that they find this, and this only. A criminal motive goes to the construction of the offence: a criminal intention is its essence. And this the jury have negatived. * See in "Another Letter to Mr. Almon," &c. p. 100, some observations upon this opinion. The "Card," No. 84, of the miscellaneous letters of Juuius, inserted in Mr. G. Woodfall's edition, vol. 3, p. 308, seems to be addressed to Mr. Justice Aston. + I have seen, in the handwriting of the late Mr. Serjeant Hill, the following note to this case of Woodfall: "It is well known lord Mansfield went great lengths in support of his own opinion always, and in this point particularly, and indeed all others that lessen the rights of juries."-See, also, pp. 444, 445. 3 N They are judges of law and fact, as far as law is involved in fact. They may take this upon them and here they have done so. They meant to acquit him of all criminal intention and one of the jurymen has made an affidavit, "That he meant to acquit him of all criminal construction: and if he bad thought that that could not have been thus done, he would have acquitted him." Therefore this cannot be considered as a verdict of conviction by twelve jurymen. A verdict ought to be found clearly, fully, and distinctly: it cannot be supplied by inference; neither can it be amended by any notes of the associate, in a criminal case. does not import the exclusion of any thing but facts: it cannot exclude conclusion of law. It is certain that a verdict cannot be amended in matters of fact: but it may be perfected in point of form. The officer takes his note short: but the necessary finishing of the sentence may be supplied. The substance and matter of this issue is sufficiently found: the Court may order it into a proper form. The law here implies the intention. The printing and publishing was all that the jury were to enquire about. This verdict is not imperfect, nor is there any need of supplying any thing by intendment. The intention must be col 1 Salk. 53. Rex v. Bold. 1lected from the libel itself. The intention is Salk. 47. Rex v. Keate. the gist of the offence. The verdict ought to be entered according to the true meaning and intention of the jury. Something is always to be added to every verdict: the entry is never in the very identical words used by the jury; which are always concise, and not full and formal enough to stand supported against a writ of error. They also cited Cro. Jac. 210. Cook v. Laneday; and Yelverton, 106; and Drury v. Dennis; 2 Rolle's Abridgment, 693. Title, "Verdict," letter S, pl. 5, between Baugh and Philips, referred to by lord chief justice Vaughan in the case of Rowe v. Huntington, Vaughan, 75, 76. who there says, "That finding the point in issue, by way of argument, in a general verdict, is never permitted; not though the argument be necessary and conclusive." There can be no supply by intendment, in any case; much less in the present, where it is impossible to supply the verdict by intendment, because nobody can know what the jury did intend, or by what rule, or upon what principle they decided; unless affidavits from the jurymen were allowed to be read. Another authority that they cited, was the case of Shelley v. Alsop, in Yelverton, 77, 78, which was a finding of the assumpsit by foreign implication; which is not good, (as it is there said) upon any general issue:" and it is there laid down, "that the jury ought to give their ver dict precisely according to their charge.” Whether a jury may or may not take upon themselves to judge of matters of law, they must at least do it at their peril. But here they have not done it at all: they have not determined, that this paper is not libellous. So that whether they may at their peril do it, or whether they may not, they have not here risked that peril. The import of their verdict is a general finding of the facts, without expressing any sense of their own upon the law, In the case of the King against Beere, reported in 12 Mod. 218. 2 Salk. 217. 1 Lord Raym. 414. Carthew, 407, and Holt, 422, the jury, as to the writing and collecting of the libels only, find him guity, prout in indictamento supponitur: and as to all other things charged in the indictment, præter scriptionem et collectionem, they find him not guilty. The charge was for composing, making, writing, and collecting several scandalous, false and seditious libels. The finding was, "Quoad scriptionem et collectionem libellorum in indictamento mentionat' tantum, quod defendens est culpabilis'; et quoad totum residuum in eodem indictamento content', quod defendens non est inde culpabilis." It was holden, “That the They hoped, however, that the present find-bare writing and collecting the libellous matter ing would be esteemed by the Court to amount to an acquittal of the defendant. They insisted, that the verdict ought to re main in the words of the jury; without expunging any of their words, or substituting others in their places, or controlling them under any pretence of legal construction. They ought to be left as they stand; that the defendant may have the benefit of a writ of error to the House of Lords, if the opinion of this Court should be against him. But, if the Court should not go so far as to hold it tantamount to an acquittal, there ought, at least, to be a Venire facias de novo. It certainly is not a conviction: and if it be not an acquittal, it can be no more than an imperfect verdict. And if a verdict be imperfect, there must be a Venire facias de novo. But we hope for his discharge, as upon a verdict of not guilty. On the part of the prosecution, it was argued that the present verdict could not be considered as a verdict of not guilty. It positively and explicitly finds him guilty of the printing and publishing: and it does not import any negation of his guilt, as to the rest. The word "only" was criminal;" and "that the general finding shall be taken to be criminal." And Turton and Rokeby cited some cases to prove, "That the writing of a libel, without publishing it, was punishable by indictment." They also cited Moore, 194. Dyer, 8627 Hobart, 54. Moore, 888. 2 Lev. 111, and, to prove that the word "only" might be rejected, 2 Saunders, 389. Co. Lit. 227. Serjeant Glynn replied; enforcing the former argument, and denying that the case of Beere, or other cases now cited, were like the present case. Lord Mansfield. It is much too late in this term, for any thing to be further done in this cause, with any effect. Let it stand over to next term. Cur. Advis Tuesday, Nov. 20, 1770. L. C. J. Mansfield delivered the Opinion of in this cause. Therefore I directed the jury to the Court: This comes before the Court upon two rules: The first obtained by the defendant to stay the entering up judgment on the verdict in this cause. The second obtained by the Attorney General, that the verdict may be entered according to the legal import of the finding of the jury. The last rule must, from the nature of it, be first discussed, because the ground of argument upon the other cannot be settled till this is disposed of. Upon this rule it is necessary to report the trial. guilty.(a) But no question of that kind arose consider whether all the inuendoes, and all the applications to matter and persons, made by the information, were, in their judgment, the true meaning of the paper. If they thought otherwise, they should acquit the defendant; but if they agreed with the information, and believed the evidence as to the publication, they should find him guilty. If the jury were obliged to find whether the paper was a libel, or whether it was a libel to such a degree as to deserve the epithets given it by the information, or to require proof of the express intent of the defendant in printing and publishing, (b) and of its being unalicious to such a degree as to deserve the epithets given it by the information— then this direction was wrong. The prosecution is an information against the defendant, for printing and publishing a Jibel in the Public Advertiser, signed Junius. The tenor of which is set out with proper aver- In support of it, I told them, as I have frona ments as to the meaning of the libel, the sub-indispensible duty been obliged to tell every ject matter, and the persons concerning which and of whom it speaks, with inuendoes filling up all the blanks and the usual epithets. In support of the prosecution, they proved by Nathaniel Crowder, that he bought the paper produced, and twelve more, from Colfield, the defendant's publisher, in the defendant's publishing-room, at the corner of Ivylane. That he goes often there, has occasionally seen the printing-room, and has had papers in the printing-room. They read the paper produced, and the tenor agreed with the information. jury, upon every trial of this kind, to the foi lowing effect: that whether the paper (meaning as alleged by the information) was in law a libel, was a question of law (c) upon the face of the record: for after conviction, a defendant may move in arrest of judgment, if the paper is not a libel. That all the epithets in the information were formal inferences of law from (a) This seems to be somewhat obscure. (b) I conceive that they might either require such proof of the publisher's intent, or collect it by inference from the mere fact of publication, as they should think fit; but that certainly they ought to find it. (c) To these words Mr. Serj. Hill, in his copy of Burrow, had written the following note. (See the last edition published by Messrs. Clarke.) "It is a question of scurrility; and how can that be a question of law? By St. Westm. 2d. 13 Edw. 1, c. 30, the justices shall not compel the jurors to give a general verdict in assize, but, if they voluntarily will, let the verdict be admitted sub suo periculo.' This statute, as appears in 2 Inst. 425, extends to all actions and all issues, and also to pleas of the crown at the king's suit. George Harris, register of pamphlets and newspapers, proved, that the defendant by himself and servants paid the duty for advertisements in the Public Advertiser; that the defendant had paid himself, and all the payments were in his account. That the defendant has made the usual affidavit, and has been allowed the stamp-duty for such papers as were unsold. That the duties for advertisements in the paper in question, were paid by the defendant's servant, and the receipt given on the defendant's account. William Lee, clerk to sir John Fielding, proved, that he often carried advertisements for the Public Advertiser, to the defendant's, at the corner of Ivy-lane. That he generally paid ready money; that he has seen money paid to the defendant for advertisements, and he had a receipt In the Trial of the Seven Bishops, though from the defendant signed by him the 29th of the Court was divided in their opinion, whether November, for 321. for printing advertisements the petition, for presenting which the defendin the Public Advertiser. On the part of the de- ants were indicted, as for making and publishfendant they called no witnesses. His counseling a libel, did in law amount to a libel, or not, objected to some of the inuendoes, but they principally applied to the jury to acquit the defendant, from the paper being innocent, or not liable to the epithets given it by the information; or that the defendant's intent in publishing did not deserve the epithets in the information. yet [qu. not] one of the four judges of the King's Bench, except the Chief Justice, expressly asserted, that that point was a matter of law, and therefore to be determined by the Court, and not by the jury; and two of the judges, viz. Holloway and Powell, left it to the There was no doubt but that the evidence, if jury as a matter to be determined by them, and credited, amounted to proof of printing and declared to them their reasons for thinking it publishing by the defendant. There may be not a libe!. See Foster 201, 202, 10 St. Tr. cases where the fact proved as a publication, App. [56.] (qu. 196, Owen's Case, see it in this may be justified or excused, as lawful or inno- Collection vol. 18, p. 1203.) Holt's Rep. 683. 5 cent; for no fact which is not criminal, in case Mod. 209. Dyer 296. Lamb. Just. lib. 1, c. the paper be a libel, can amount to à publica-13, p. 177, 178, ed. 1582. 5 Mod. 206. Cro. tion, of which a defendant ought to be found Car. 332." the printing and publishing.(d) That no proof guilty for nothing more is to be found by the of express malice ever was required, and is injury.(h) most cases impossible to be given. That the verdict finds only what the law infers from the fact: (e) therefore, after conviction, a defendant may, by affidavit, lessen the degree of his guilt. That where an act in itself indifferent, if done with a particular intent, becomes criminal, there the intent must be proved and found: but where the act is in itself unlawful, (f) as in this case, the proof of justification, or excuse, lies on the defendant; and, in failure thereof, the law implies a criminal intent.(g) The jury stayed out a great while, many hours; at last they came to my house; (the objection of its being out of the county being cured by consent.) In answer to the usual question put by the officer, the foreman gave their verdict in these words: "Guilty of the printing and publishing only." Nothing more passed. The officer has entered up the verdict literally, without so much as adding the usual words of reference to connect the verdict with the matter to which it related. Upon this, the two rules I have stated were moved for. Upon that obtained by the Attorney-General, the affidavit of a juror was offered by the counsel for the defendant. But we are all of opinion that it cannot be received. Where there is a doubt upon the judges' report, as to what passed at the time of bringing in the verdict, there the affidavits of jurors, or by-standers, may be received upon a motion for a new trial, or to rectify a mistake in the minutes. But an affidavit of a juror never can be read as to what he then thought or intended. This motion consists of two parts; first, to fill up the formal words of reference; the second, to omit the word only.' We are all of opinion, that the first is a technical omission of the clerk, and ought to be set right. As to the second, that the word 'only' must stand in the verdict. In the case of the King and Williams, the jury found the defendant guilty of printing and publishing the North Briton, No. 45; the clerk entered it up guilty, and no objection was ever made. Where there are more charges than one, guilty of some only is an acquittal as to the rest. But in this information there is no charge except for printing and publishing. Clearly there can be no judgment of acquittal ; because the fact found by the jury is the very crime they were to try.(i) The only question is, Whether, by any possibility, the word 'only' can have a meaning which would affect or contradict the verdict. That the law, as to the subject matter of the verdict, is as I have stated, has been so often unanimously agreed by the whole Court, upon every report I have made of a trial for a libel, that it would be improper to make it a question now in this place. Among those that concurred, the bar will recollect the dead, and the living not now here. And we all again declare our opinion, that the direction is right, and according to law. This direction, though often given (with an express request from me, that if there was the least doubt, they would move the Court) bas never been complained of in court; and yet, if it had been wrong, a new trial would be of course. It is not now complained of. Taking then the law to be according to this direction, the question is, whether any meaning can be put upon the word only,' as it stands upon the record, which will affect the verdict. If they meant to say they did not find it a libel, or did not find the epithets, or did not find any express malicious intent, it would not affect the verdict; (k) because none of these things were to be proved or found either way. If, by only,' they meant to say that they did not find the meaning put upon the paper by the information, they should have acquitted him. If they had expressed this to be their meaning, There is no ground (from any thing which the verdict would have been inconsistent and passed) to explain the sense of the jury, so as repugnant; for they ought not to find the dethat the officer might have entered a general fendant guilty, unless they find the meaning verdict. No argument can be urged for omit- put upon the paper by the information ;(1) and ting the word only,' which does not prove judgment of acquittal ought to have been enthat it can have no effect, though inserted; tered up. If they had expressed their meanand therefore it is a question of law upon the ing in any of the other ways, the verdict would face of the verdict. The defendant's motion not have been affected, and judgment ought to must be considered upon the ground of the be entered upon it. It is impossible to say with word only' standing; was it omitted, there certainty what the jury really did mean; procould be no doubt. Guilty of printing and pub-bably they had different meanings. If they ishing, where there is no other charge, is could possibly mean that which is expressed would acquit the defendant, he ought not to be (d) Qu. Are they not rather inferences of reason which the jury have a right to make? (e) This appears to be somewhat obscure. (f) Qu. if any act, even the voluntarily putting another man to death, be in itself unlawful? (g) Qu. if this implication lie not within the province of the jury? (h) Qu. if they ought not also to find the malice and the tendency? (i) Qu. if it be more than a part of it? (k) Would it not make it a verdict of acquittal? (1) Qu. if the jury as plain men did not by the words, guilty of publishing' only mean to say that the defendant published the paper? |