skine and Mr. Pitt, then at the bar, being his council. But the acquittal was against the opinion of Lord Mansfield, who wholly over-ruled Lord Erskine's argument, and dirceted the jury to

convict.

All that Lord Erskine then and in the following case of Mr. Cuthell appears to have contended for, is, that if a negligent publication be an indictable offence, the party should be so charged, and ought not to be convicted on a count, which charges a CRIMINAL intention, which he is in a condition to negative by satisfactory proof.

A further evil, indeed, and no small one, attends the practice of not distinguishing the criminal from the negligent publication by distinct charges in the indictment. Judges and juries will occasionally differ totally from each other. If the juries, finding verdicts of acquittal in such cases, against the opinion of the judge, are considered by the public, or any part of it, to have acted improperly, the trial by jury suffers in proportion; and if, on the other hand, such juries are considered to have properly resisted the opinion of the judge (although the judge had no jurisdiction to give a contrary opinion), the judicial authority then suffers in public estimation; whereas the constitution of the country actually depends upon the utmost reverence for, and confidence in, the administration of justice in all its parts, which never existed in any country in the world in such purity as our own.

THE KING v. JOHN CUTHELL.

FEBRUARY 21st, 1799.

I RISE to address you, gentlemen of the jury, with as much anxiety as I ever felt in the course of my professional life. The duty I have to perform is difficult and delicate. I am counsel for Mr. Cuthell only, who is charged merely as pub. lisher of a writing, for which the reverend gentleman now in court (and who is to plead his own 'cause) is immediately afterwards to be tried, on another indictment, as the author. The rules of law would entitle Mr. Cuthell to a double defence; he might maintain the innocenee of the book, be. cause his crime as publisher can have no existence unless the matter be criminal which he has pub. lished; and supposing it to be criminal, he might separate himself, by evidence, from the criminal purpose charged upon him by the record. The first of these offices he must not be supposed to shrink from because of its difficulty, or from the force of the verdicts which the Attorney-General has adverted to as having been given in the city of London; Mr. Johnson, who was there convicted, stood in the ordinary situation of a bbokseller sell. ing a book in the course of his trade:-on that oc

casion I thought myself bound to make the defence of the book; but the defence of a book may be one thing, and that of its publisher another. There can be no proceedings IN REM by an attor ney-general against a book, as against tea or brandy in the Exchequer. The intention of the author and of each publisher involves another consideration, and it is impossible to pronounce what opinion the jury of London might have held concerning the book, if its author had been to lay before them his own motives; and the circumstances under which it was written. Even after Mr. Cuthell shall be convicted from my failing in his defence (a suppo sition I only put, as the wisest tribunals are fallible in their judgments), the verdict ought not, in the remotest degree, to affect the reverend gen. tleman who is afterwards to defend himself. His motives and intentions will be an entirely new cause, to be judged of as if no trial had ever been had upon the subject; and so far from being prejudged by other decisions, I think that, for many reasons, he will be entitled to the most impartial and the most indulgent attention. These conside rations have determined me upon the course I shall pursue. As Mr. Cuthell's exculpation is hy disconnecting himself wholly from the work as a CRIMINAL publisher, from his total ignorance of its contents, and, indeed, almost of its existence, I shall leave the province of its defence to Mr. Wakefield himself, who can best explain to his own jury the genuine sentiments which produced

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it, and whose very deportment and manner, in pleading his own cause, may strikingly enforce upon their consciences and understanding the truth and integrity of his defence. Observations from me might only coldly anticipate, and perhaps clash with the arguments which the author has a just, natural, and a most interesting right to insist upon for himself.

There is another consideration which further induces me to pursue this course. The cause, so conducted, will involve a most important question as it regards the liberty of the press; because, though the principles of criminal and civil justice are distinguished by as clear a boundary as that which se parates the hemispheres of light and darkness, and though they are carried into daily practice throughout the whole circle of the law; yet they have been too long confounded and blended together when a libel is the crime to be judged. This confusion,

gentlemen, has not proceeded from any difficulty which has involved the subject, because, of all the parts of our complicated system of law, it is the simplest and clearest, but because POLITICAL

JUDGES, FOLLOWING ONE ANOTHER IN CLOSE

ORDER, and endeavoring to abridge the rights and privileges of juries, have perverted and distorted the clearest maxims of universal jurisprudence, and the most uniform precedents of English law. Nothing can establish this so decisively as the concurrence with which all judges have agreed in the principles of civil actions for libels, or slander, con

cerning which there never has been a controversy, nor is there to be found throughout the numerous reports of our courts of justice, a discordant case on the subject; but in indictments for libels, or, more properly, in indictments for political libels, the confusion began and ended.

In the case of a civil action throughout the whole range of civil injuries, the master is always civiliter answerable for the act of his servant or agent; and accident or neglect can therefore be no answer to a plaintiff, complaining of a consequential wrong. If the driver of a public carriage maliciously overturns another upon the road, whilst the proprietor is asleep in his bed at a hundred miles distance, the party injuring must unquestionably pay the damages to a farthing; but though such malicious servant might also be indicted, and suffer an infamous judgment, could the master also become the object of such a prosecution? CERTAINLY NOT. In the same manner, partners in trade are civilly answerable for bills drawn by one another, or by their agents, drawing them by procuration, though fraudulently, and in abuse of their trusts; but if one partner commits a fraud by forgery or fictitious endorsements, so as to subject himself to death, or other punishment by indictment, could the other partners be indicted? To answer such a question here would be folly; because it not only answers itself in the negative, but exposes to scorn every argument which would confound indictments with Civil actions. WHY then is printing and publishing