has proceeded, abundant pains appear to have been taken, in trials for libels, to be wilder the understandings of jurymen, and to involve the business in the darkness of legal jargon, and profeffional fophistry.

pro

IN indictments, or informations for li bels, certain epithets are introduced, which are intended to be defcriptive of the offence with which a perfon is charged who is fecuted as a libeller. If it be a public libel, or fuppofed public libel, it is generally ftated, in the information, or indictment, to be a "falfe, wicked, malicious, feditious, "and fcandalous libel." If a book or paper styled a libel be not proved to deserve those epithets, or if it does not appear to the jury to deserve those epithets, no evidence is produced to them that a libel has been published. For a book or paper that is not entitled to these epithets is not a li bel. Whether a book or paper be falfe, or

wicked, or malicious, or feditious, or fcandalous, or whether they be otherwise, whether they are innocent or criminal publications, are facts, and facts undoubtedly to be inquired into by the jury. But whether they are questions of fact, or questions of law, in either cafe they come within the cognizance of the jury: for the jury has nothing else to determine, that is in the leaft worthy the attention of a court of juftice. The publication of a book or pamphlet is not a crime, independently of the criminal matter which it may contain; and if a jury find a man guilty without a conviction of the criminality of the publication with which he is charged, they convict a fellow-citizen without the least reafon or juftice.

BUT clear as these principles are, much legal fophiftry has been employed, to perfuade juries, that they are to pay no atten

tion to the epithets, in informations or indictments for libels, and that they are mere words of courfe, or inferences of law. The epithets FALSE, WICKED, MALICIOUS, SEDITIOUS, and SCANDALOUS, have been compared by lord chief juftice Jefferies, and other judges fince, to the phrases in indictments for murder, that the murder was committed by the party accufed," not hav

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ing the fear of God before his eyes," and

being moved and feduced by the infti"gation of the devil." But furely it is the moft contemptible fophiftry, to compare, and to confound, phrases that are evidently words of course, and which from their nature are incapable of proof, with others that are capable of proof, and which are descriptive of, and characteristic of the offence with which the accused party is charged. If a murder be committed, it cannot be neceffary to prove, that the murderer committed

the fact at the inftigation of the devil;" but if a man be charged with writing, printing, or publishing a libel, the jury ought to be convinced, that the book or paper fo ftyled is falfe and fcandalous, or malicious and feditious; or otherwise they condemn a man without the leaft evidence of criminality; for writing, printing, or publishing, are acts in themselves perfectly innocent and indifferent.

EVEN in the cafe of homicide, a man is not convicted of murder, if he has killed another by accident, and without intending it, or without being engaged in fome unlawful act; and of all this the jury are judges. But we are told, that juries have nothing to do with the INTENTION of a libeller. They are only to find the fact of publication. Thus it was faid by Jefferies, on the trial of Sir Samuel Bernardifton, the proof of the thing itself, proves the

evil mind it was done with. If, then, • gentlemen, you believe the defendant, • Sir Samuel Bernardiston, did write and publish these letters, that is proof enough • of the words MALICIOUSLY, SEDITIOUSLY, and FACTIOUSLY, laid in the informa• tion 24,"

• WHEN I reflect,' fays an able writer, who has been before quoted, that the declaration, information, or indictment for a libel, charges the paper complained of • with malice and fedition, that the jury' < are fworn well and truly to try this charge, and true deliverance make,—and that if the jury find him guilty, the verdict is drawn up; "The jurors fay, upon "their oaths, that the defendant maliciously "and feditiously published the paper in "queftion;" it is impoffible for me not to declare, that the whole of the proceed

State Trials, vol. III. p. 320.

⚫ing,