himself, and to refute it; and so has had recourse to the only instrument which is left in the hands of the Attorney General, the power of preferring an information, in order to involve, in criminal guilt, the author of this paper, whom he found he could not refute by all his vain attempts. Gentlemen, it has been the observation of all ages, that when a hot, a weak, and inexperienced minister happens to be attacked, his constant refuge is under the wing of majesty; and that he screens himself behind that throne, which, he is in hopes, the subject dares not approach; and, you will find, that the calm, the able and experienced statesman, treats the attacks upon his measures, or upon his character, with the contempt it deserves, if it be true. Gentlemen, whether the subjects of this paper be or be not true, I will observe to you, that the drawer of the information, that the exhibitor of it to you, the Attorney General, has not pretended, in any part of it, to say it is false; that you will find, through the whole tenor of this information. Why then, gentlemen, if this be the nature of the question, and if you have the power over it, it is for you, and you only, to determine, whether this paper deserves all the branding epithets with which it is loaded; whether the substantial allegations drawn from it are true; which, upon your oaths, you must find, if you find the defendant guilty-that he has attempted to draw the subjects from their sovereign, and to excite them to an unnatural insurrection against their prince: that is, not by words of course, not by adjectives, but it is in substantives, to be found upon oath by you, if you are of opinion he is guilty. I should not stand up for or support a traitorous purpose; but, it is not expected of his majesty, to defend the weak and misguided minister, whose conduct is his own, with regard to the public; and, whenever that is sullied, he is liable to be told of his faults. And if you should be of opinion, that this is a free and bold discussion of the measures of a misguided minister, and that this was an information, which the author of the paper meant to convey to those who had power, be it lodged where it may, and might possibly correct the errors of a misguided leader, and inform a conscientious good king of it; then you will view it in the way, which I before gave reason for, and I hope, find a verdict for the defendant of Not Guilty. It has been always the language, the king himself cannot be affected; that no man raises a personal invective against him; that attempt, I believe, was hardly ever made, and yet you will find, I dare say, from your memory of history, there have been instances, where several applications have been made to the throne, face to face, by the parties themselves; as was the case of the learned Bishops who presented a petition to the king, arraigning the conduct so far of those that advised, and they expressed the evil tendency of a proclaination of his own. * See vol. 12, p. 183. | There was no proof, only presumption, for saying it came from their hands. It was such a petition, arraigning the conduct, and explaining the evil tendency of the proclamation, that it was by an honest jury thought a fair, a legal, and a constitutional petition; and they found, as they had a right to do, their reverend lordships not guilty, after a long deliberation; and I shall sit down in perfect hopes and confidence you will find this defendant not guilty also. Sol. Gen. Please your lordship, and you gentlemen of the jury, I hope you will give me leave to say a word or two upon this defence that has been made. There have been some motions of blame upon my conduct, which has been for some purposes so drawn into the question, that if I, in the situation in which I have stood, should remain silent upon that subject, I should be thought perhaps as well to betray myself in the business, as the principles of law upon which I stand in this prosecution, though I do not think it of exceeding great consequence to the issue of this cause, whether those principles be actually settled one way or the other, because there are no points of law upon this subject, that in my mind require particular strength of argument or great abstruseness of reasoning, in order to come at them. They lie open and upon a level to common understanding, to that obvious moral observation of all mankind, do no wrong to another; but you are desired to understand, the justice of this cause has been, in fact, entangled in the former; and that it is necessary for you to go through all that is called the inducement of the informa. tion; to find the party guilty according to the extent of every epithet: where is that law to be found? Serj. Glynn. I must beg leave to interrupt you, it was the substantial proofs, not of the epithets. Sol. Gen. It is a matter of no kind of consequence to this business, whether the gentlemen spoke it expressly in the extent I really understood them to speak, or whether they left it to be collected and inferred to extend farther by construction, than they really ventured; that is of no consequence to this business. All I meant was to introduce that idea. I should have taken the freedom to state, as a proposi tion of law; that is to say, the substantial allegations; let it be worded by epithet, or not, the accnsation is of the part the defendant has published in writing or printing, concerning the character and person of another, which is injurious to his person and character; and that the offence is considerably enhanced, when applied to the person of magistrates, and par ticularly to the highest magistrates whatsoever. That is the ground which I go upon; and * Concerning the right in crown prosecutions to a reply on the part of the crown though no witness have been examined on the other side, see Mr. Horne's Case, p. 651 of this volume, though I did understand the doctrine of another effect stated in the outset, I am well conteut if we are agreed in law, and will proceed upon it just in the manner in which I think it stands. I did understand, when the learned gentleman spoke first of it, when he entered into a defence of the paper, and embarked in it, that it was upon the same line, and same no tion of law I have gone upon. The learned gentleman who spoke second, thought proper to go a little wider, and give a more general discussion than my learned friend who spoke first; and he thought it necessary to tell you, that this information came under no sanction, no kind of authority whatsoever. I refer to your own memory, gentlemen, whether I relied in the opening of this cause at all upon the authority under which this information is filed; not the least upon earth; did not I? and yet at the same time, if that should come to be called in question, I am to inform you it is filed by an officer of the crown, and whom the constitution of this country has, in all ages, intrusted to his duty and his knowledge, a discretionary power of filing these informations; and the very statute alluded to by the gentlemen, was after the Revolution, and at a time when the constitution was well considered, and the liberty of the subject supposed to be established. At that time, and for the sake of the constitution, under which we live now, it was expressed to be in that officer of the crown to file informations for the sake of the preservation of public order and peace. This is the law of the country firmly settled at the time of the Revolution; and yet now, when the law comes to be put in execution, juries are entertained with an idea of the oppressive qualities existing in that law, which the wisdom of ages, and the best correction possible, applied to that, have established what it is that officer is entrusted with, a matter of duty and honour not to file informations, which in his judgment and discretion, do not call for the extraordinary interposition of his office. Whenever they do, it is his duty to file them, unless something had been said to impeach his proceedings in that part of the execution of his duty. But I can say, myself, it was filed by an officer of great judgment, and unimpeached honour; and it was his opinion, and it was accordingly done, not to proceed by indictment, but information in the court of King's-bench. The Court would not have heard a motion at the instance of the Attorney General to file that which is his duty to file. The very circumstance of his being to fie it, would have prevented the Court from hearing the motion; they would have called to him to do bis duty in the course of information. And is the Attorney General, when he plainly sees it with the same eyes the rest of mankind have seen, and the same view in which they have talked of it, when he sees a direct malignant attack made upon the person of the king himself, is he to wait till a grand jury finds it such attack, and presents him what is his office? and is he not to interpose upon such subjects as this, where it is his duty ? and, gentlemen, these are the grounds upon which it is to be determined by you. To speak properly of the gentleman that spoke first, they are not his grounds; though the second, he has endeavoured to mislead you upon the subject, by telling you, that in his opinion, this is not a libel; but he has withal given you his reason why he offers to argue it is no libel, because he says, it does not apply to the person of the king. Now I agree perfectly, that as far as this information goes, it charges, that this libel does affect the person of the king; and if he has made out to your satisfaction that no part of the libel does so affect him, then that part of the charge will fall to the ground, as well as that part that affects the great officers of state. If the defendant has made out there are no passages that apply to those persons, then he is discharged from that part of the information; so, with regard to that part affecting the House of Commons, if he has made out that the House of Commons are not directly and personally reviled and taxed with the grossest corruption, even with being bought by the ministry; if he has made out that proposition, then that will fall to the ground. I do not mean, (because you have the paper before you,) to go over those pas sages, at the outset of which it appears, the person of the king has been directly meant, though some bave been taken up, and others omitted, by my learned friend in the defence. I will confine myself to those that have been taken up. He tells you, there is a great acknowledgment of the royal virtues. What a wretched misery is that in the obvious sense of those that are to determine upon it. If he does acknowledge those royal virtues, he taxes the king with those that are directly opposite to those qualities, and the taxing of them, I will point out to you immediately. In the first place, my learned friend says, what is said of the king, is but the ordinary accident of thrones, and the most active of kings have, in some part of their lives, suffered in the administration of government. And therefore it might be as well said of all kings whatsoever, or at least the greatest number of kings, and no harm could come from the zeal that is expressed to the present king. Observe the language of the paper itself. "It is the misfortune of your life, and the cause of your reproach and distress." Is this the language that may be said of all kings? and his being unacquainted with the language of truth. This is only dropping ideas concerning the application to the king, and very far from fact; and therefore the officers of the crown, are they who want to make that a libel upon the king, that was no libel. Were it only about in coffee houses, that the king was unacquainted with the lanSee the Case of Rex v. Phillips, cited p.guage of truth, and constantly erring, and that 678, of this volume. he had not discovered his prejudices; were that laid about upon tables in taverns and cof- to those that apply for justice, there consequent fee-houses, nobody understood it to be a libel.ly is neither liberty nor property, nor reputa But it becomes a libel, when the officers of the crown, for the vindication of the character of the king, thought proper to bring it before a court to be justified there. With regard to the lord lieutenant of Ireland, my learned friend says, there is no application to the king. Certainly there is no application to the king whatsoever. Now let us see a little whether there is not. tion, nor any thing which this country has hitherto thought worth protection, and the laws won'd not be able to protect them. I protest to God, it appears to me in a reasoning way, too strange a proposition, to say liberty is concerned in protecting a man in writing injuriously and opprobriously against the character of a man, which is the same as if it was concerned in protecting a man in robbing upon the high"The people of Ireland give you every day ways. Gentlemen, you may as well have the fresh marks of their resentment;" so that it is question put for your discussion, whether you introduced to the king. "They despise the mi- would have ten or fifteen guineas privately serable governor you have sent them, because stolen from your person, by which the party he is a creature of lord Bute." This is the would be liable to be condemned, or whether abuse upon lord Townshend; for what reason you would have your name hung out to the is best known to the author himself; but if they public, as a man who is disgraceful, dishonest, are masters of men's characters to treat them and unworthy of any post you held. Which just as they please, there is an end of all law would you choose? And in the name of comand justice. But when it concerns the person mon sense, which can any man expect you of a king, it is not from the natural ideas they should choose? And how can you find your are so ready to confound the person of a king verdict when you are desired to withhold, conin the person of his representative, as he states trary to all evidence, and every necessary the people of Ireland, every day giving fresh conclusion, that justice which those conclumarks of their resentment, because they under- sions do call for? You are not desired to he stand there is no difference between the original lieve they are not published by the defendant; of a king, and their representative. It is not that is given up here; you are desired to be owing to a confusion of their ideas they do in lieve, that they do not talk of the king in the that manner confound it. What does be say in paper. That argument is not what I exthe next part after Ireland? He then proceeds pected to have been proved. You are desired to state America, of which he first of all says, to think it would be a derogation from your "they were ready enough to distinguish between authority, should you be obliged to find, ac the king and his ministers, and to throw the cording to the evidence. To be sure you are fault upon them;" and that I suppose is not to bound, if we could not make out the truth that be applied to the king. But afterwards he belongs to the charge, which, if we do, without says, "the decisive, personal part you took you can find reasons to deny that very truth against them;"-is this charging the ministry? which your reasons and consciences cannot that decisive, personal part you took against resist ; to be sure, that is one of the inferior si them, has effectually banished that first dis- tuations of a jury. But that is an inferiority tinction from their minds; they consider you which don't belong to your situations alone. as united with your servants against America, Judges are likewise sworn to pronounce ac they knowing how to distinguish the sovereign cording to law; and that is all the constraint and a venal parliament on one side, from the upon the office you now hold; and if you find real sentiments of the English people on the the facts are as I stated in the outset, notwithother." Has this no application to the king? It standing what has been said in the defence, it certainly has. I have stated these few in-will be too plain an absurdity to say he is not stances, merely because they were those that have been taken up, in order to shew they have no application to the king. Gentlemen, I have stated them to you, imagining we are so far upon a just ground, and that you can imagine no other but that the king is as plainly distinguished from every body else, as any thing in the world can be distinguished. They are right in saying, that if you find it is meant so, what avails all that has been said. But they go beyond that; and very properly say you are the refuge of liberty. You are 80. You are the refuge of those who find themselves wronged contrary to the laws of this country, and apply to the laws of this country for redress. And if you, who are the refuge of liberty, in that sense, should either by such delusion, or influence of prejudice and warmth in favour of such strange ideas, endeavoured to be put upon them, deny that justice ተ guilty. Lord Mansfield. Gentlemen of the jury, if the direction that I am going to give you, as to the object of your consideration, and the rule and ground upon which your verdict ought to be founded, according to the law and constitu tion of this kingdom, and that oath that is taken by each of you; I say, if that direction should be mistaken, I have this comfort in my own mind, that it will not be final, but upon application to the Court for a mis-direction, it can be set right. The direction I am going to give you, is, with a full conviction and confidence, that it is the language of the law. This is an information that is brought against the defendant for printing this letter, which you have heard read, of the tenor set forth, and of the meaning put upon those parts of it, which are blanks in the original, by the in formation, and concerning the persons charged by the information, to be the persons concerning whom it was wrote. This is the charge. Now the question for you to try upon the evidence, is, whether the defendant did print or publish, or both, a paper of the tenor, and of the meaning, so charged by the information? As to its being of the tenor, the paper has been read to you, and if it had not been of the tenor, there would have been an objection made during the course of the reading; and there would have been an end of the information, if the charges were wrong, for they could not have gone on; therefore there is no objection as to the tenor. The next thing is the meaning; and the meaning is what is put upon it by the information, in those places where there are blanks in the original, as k dash g for king, m dash y for majesty, and so on, as you heard it read. As to that, there has been no particular objection made by the counsel, that in any one instance the blank is ill filled up. If that could have been made, their ingenuity would have found it out. If you say they are not well filled, and the paper is not of the meaning set forth in the information, then you must, to be sure, acquit him. But, if it is of the tenor and meaning, set out in the information, the next consideration is, whether he did print and publish it? Now, as to that, the evidence stands uncontradicted, and without any observations. It is proved to be bought of his servant, at his house that dropt from the counsel without any observation. If you by your verdict find the defendant not guilty, the fact established by that verdict, is, he did not publish a paper of that meaning; that fact is established, and there is an end of the prosecution. You are to try that fact, because your verdict establishes that fact, that he did not publish it. If you find that, according to your judgment, your verdict is final; and if you find it otherwise, it is between God and your consciences, for that is the basis upon which all verdicts ought to be founded; then the fact finally established by your verdict, if you find him guilty, is, that he printed and published a paper, of the tenor, and of the meaning, set forth in the information; that is the only fact finally established by your verdict; and whatever fact is finally established, never can be controverted, in any shape whatsoever. But you do not, by that verdict, give an opinion, or establish whether it is or not, Jawful to print or publish a paper, of the tenor and meaning in the information; for supposing the defendant is found guilty, and the paper is such a paper, as by the law of the land may be printed and published, the defendant has a right to have judgment respited, and to have it carried to the highest court of judicature. There is nothing upon the fact: if in point of law it is innocent, it would be an innocent thing, appearing so upon the record. Neither is it found established upon your verdict, that he did it with any degree of malignity or guilt in the bare act of printing and publishing. If he prints that which is unlawful, it follows in course, whether it is with a degree of greater or less malignity. For there is no one act, that may be attended with a greater variety of circumstances (almost infinite) than the manner in which a man might print and publish; it might be from the lowest to the highest degree of guilt, even to a very venial degree of guilt. Now that is not established by your verdict, all those epithets being a mere form in informations, and they are inferences of law, which are drawn upon the printing and publishing a libel, if it comes out upon the face of it to be a libel. It is very true, I am used to speeches made to juries, to captivate them, and carry them away from the point of enquiry. Mr. Serjeant Glynn did admit, the inducement was not to be proved; not so much proved, as is set forth, as malice of forethought, in cases of murder, or the instigation of the devil, and yet the form is kept up. As to the other epithets, he did admit of them, as his candor made him do. After arguing upon the epithets of seditious and malicious, he did say at last, I do not see it is necessary to give proof of the whole; therefore that is not the fact to be found by your verdict, that is inference of law; and many instances shew when the jury have found him guilty, before the defendant comes up for judgment, he is at liberty to extenuate his crime, and even his own affidavit will do it; and if the fact had been found by the verdict, it is impossible that can ever be controverted, nor ever further looked into. These are the grounds, therefore, which I leave to you for your consideration. If you are not satisfied that the paper proved, is of the meaning put upon it by the information, where the blanks are filled up, and the persons concerning whom it is spoken of, you must acquit the defendant. If you doubt of the evidence, as to its being proper evidence, you must acquit the defendant. If you are satisfied, as to both those, that is the matter to be established; by both those, and according to right, you ought to find it. And, indeed, if you were for having the power of pronouncing a verdict of not guilty, as to the fact; to be sure the jury, in every cause, may make an end of the question, whether they have not a right to find that verdict.* If you take upon you to determine the law, you must, for the sake of your own consciences, be sure to determine according to law, and you must be sure that the law is, that such a paper may be printed and published, of the tenor you find it; the consequence of which is very obvious to be seen upon this occasion. If the law was to be determined in every particular cause, what a miserable condition would this country be in with regard to that part of it, as it is said there cannot be a greater curse than uncertainty in the law; for one jury in Middlesex find one way, and a jury in London another way. A jury in Middlesex has found a verdict, and convicted one person * for the publication of this same paper, but you are not bound by that. If juries were to find according to the different impressions the different points of law have upon them, there might be no law at all upon the subject. You will consider of it, and I will repeat to you again, you must be satisfied as to the meanings laid down in the information, and concerning the persons, and you must be satisfied with regard to the publication; if you are satisfied you will find him guilty; if not you will find him not guilty.† The Trial began about nine o'clock in the morning, and was finished about twelve. The jury retired into a private room, and continued locked up, till half an hour past seven in the evening, at which time they were agreed in their verdict; and the Court being broke up, they carried it to lord Mansfield, at his house in Bloomsbury-square. His lordship met them See Almon's Case, p. 868, of this volume. † But now see stat. 32 G. 3, c. 60. at his parlour door, in the passage, and the foreman having pronounced their verdict Not Guilty, his lordship went away without saying a word. But there being a vast concourse of people in the square, who had followed the jury from Guildhall, they, as soon as the verdiet was known, testified their joy, by the loudest huzzas. Several inaccuracies in the preceding reports of the cases of Almon and Miller I have not ventured to alter. As to the proceeding for an attachment against Almon in respect of the publication of the Letter concerning Libels, Warrants, Seizure of Papers,' &c. see vol. 19, p. 1082; and Lord Chief Justice Wilmot's Notes of Opinions and Judgments' as there cited. Concerning the non-examination of Miller, p. 835, see what Mr. Dunning said in the House of Commons, reported 16 New Parl. Hist. p. 1279. Of the conversation which passed between Mr. Mackworth and lord Mansfield, p. 838, see Mr. Mackworth's account, 16 New Parl. Hist. 1149, 1189. 555. The Case of HENRY SAMPSON WOODFALL, on an Information filed by the Attorney General for publishing Junius's Letter to the King: 10 GEORGE III. A. D. 1770.* [London Museum.] June 13. THIS day came on at Guildhall, before lord chief justice Mansfield, the trial of an informa- | The report here given, is the fullest which I have seen of this Trial. I have therefore inserted it, notwithstanding the flippancy and partiality of its manner. In Mr. G. Woodfall's recently published edition of Junius's Letters (in which edition is exhibited various illustration of that work, and consequently of the history of these prosecutions) is inserted in a note to the author's preface, a very abridged account of this Trial, from which I shall print below the report of lord Mansfield's charge to the jury. The following passage from a note to vol. 2, p. 62, of Mr. Woodfall's publication, is not impertinent in this place: "The address to the king through the medium of this Letter, made a very great impression upon the public mind at the moment of its appearance, and though 500 copies of the Public Advertiser were printed in addition to the usual numbers, not a single copy was to be procured in a few hours after its publication. The author himself, indeed, seemed to entertain a very favourable opinion of it; as in Private Letter, No. 15, speaking of this Letter, tion filed by Mr. Attorney General er officio, against Henry Sampson Woodfall, for printing and publishing a letter signed Junius, in the Public Advertiser, of the 19th of Dec. 1769. he says, I am now meditating a capital, and, I hope, a final piece.' It was for this production that the printer was prosecuted, and obtained the celebrated verdict of guilty of printing and publishing only,' the consequence of which, as already observed in note to vol. 1, p. 29, was, that two distinct motions were made in court; one by the counsel for the defendant in arrest of judgment, grounded on its ambiguity, and another by the counsel for the crown, to compel the defendant to shew cause why the verdict should not be entered up acargued, the court of King's-bench ultimately cording to the legal import. The case being decided, that a new trial should be granted. This accordingly commenced, when the Attorney General observing to the Chief Justice, that he had not the original newspaper by which he could prove the publication; his lordship laconically replied,That's not my fault, Mr. Attorney:' and in this manner terminated the second trial. The fact is, that the foreman of the jury upon the first trial had pocketed the paper, upon its being handed to the jury box for inspection, and had afterwards destroyed it. The expence the defendant was |