if you find him guilty, you find that he did print and publish a paper of the tenor and meaning set forth in the indictment. Your verdict finally establishes that fact; but you do not by that verdict find whether that production was legal or illegal: for should the defendant be found guilty, he may arrest the judgment, by insisting there is nothing illegal in this paper, and may carry this matter before the highest court of judicature in the kingdom." The incongruity of this doctrine seems to have forced itself even upon the mind of Lord Mansfield, who at the conclusion of the summing up added, “If you choose to determine the point of law, you should be very sure, for your conscience' sake, that your determination is law; but if the law was in every case to be determined by juries, we should be in a miserable condition, as nothing could be more uncertain, from the different opinions of mankind."

The jury, after consulting together for several hours, delivered a verdict of Not guilty, at the chief justice's house in Bloomsbury Square. They had been followed from Guildhall by a great concourse of people, who, on the announcement of the verdict, testified their satisfaction by loud and repeated acclamations.*

In another case, which occurred in the course of the same year, Lord Mansfield incurred additional, though undeserved, odium. Two informations having been filed against the celebrated Wilkes, for the publication of No. 45 of the North Briton, and of another libel, and the cases standing for trial, an application was made to Lord Mansfield, at chambers, for leave to amend the records in a formal point. Leave was given to amend, the causes proceeded, and Mr. Wilkes, not appearing, was outlawed. Some time afterwards, having appeared, he endeavoured to reverse the outlawry, and loud complaints were made by his friends against Lord Mansfield for the part he had taken in allowing the amendments to be made. On delivering his judgment in the writ of error brought by Mr. Wilkes, Lord

* State Trials, vol. xx. p. 896.

Mansfield, after examining the authorities, thus continued: "But here let me pause:-it is fit to take some notice of the various terrors hung out; the numerous crowds which have attended, and now attend, in and about the hall, out of all reach of hearing what passes in court; and the tumults which, in other places, have shamefully insulted all order and governAudacious addresses in print dictate to us, from those they call the people, the judgment to be given now, and afterwards upon the conviction. Reasons of policy are urged, from danger to the kingdom, by commotions and general confusion.

ment.

"Give me leave to take the opportunity of this great and respectable audience, to let the whole world know all such attempts are vain. Unless we have been able to find an error which will bear us out to reverse the outlawry, it must be affirmed. The constitution does not allow reasons of state to influence our judgments: God forbid it should! We must not regard political consequences, how formidable soever they might be if rebellion was the certain consequence, we are bound to say, 'Fiat justitia, ruat cœlum.' The constitution trusts the king with reasons of state and policy; he may stop prosecutions; he may pardon offences; it is his, to judge whether the law or the criminal should yield. We have no election. None of us encouraged or approved the commission of either of the crimes of which the defendant is convicted: none of us had any hand in his being prosecuted. As to myself, I took no part (in another place) in the addresses for that prosecution. We did not advise or assist the defendant to fly from justice it was his own act; and he must take the consequences. None of us have been consulted, or had any thing to do with the present prosecution. It is not in our power to stop it: it was not in our power to bring it on. We cannot pardon. We are to say what we take the law to be: if we do not speak our real opinions, we prevaricate with God and our own consciences.

"I pass over many anonymous letters I have received.

Those in print are public, and some of them have been brought judicially before the court. Whoever the writers are, they take the wrong way. I will do my duty unawed. What am I to fear? that mendax infamia from the press, which daily coins false facts and false motives? The lies of calumny carry no terror to me. I trust, that my temper of mind, and the colour and conduct of my life, have given me a suit of armour against these arrows. If, during this king's reign, I have ever supported his government, and assisted his measures, I have done it without any other reward than the consciousness of doing what I thought right. If I have ever opposed, I have done it upon the points themselves, without mixing in party or faction, and without any collateral views. I honour the king, and respect the people; but many things, acquired by the favour of either, are, in my account, objects not worth ambition. I wish popularity, but it is that popularity which follows, not that which is run after. It is that popularity which, sooner or later, never fails to do justice to the pursuit of noble ends by noble means. I will not do that which my conscience tells me is wrong, upon this occasion, to gain the huzzas of thousands, or the daily praise of all the papers which come from the press: I will not avoid doing what I think is right, though it should draw on me the whole artillery of libels, all that falsehood and malice can invent, or the credulity of a deluded populace can swallow. I can say with a great magistrate, upon an occasion and under circumstances not unlike, 'Ego hoc animo semper fui, ut invidiam virtute partam, gloriam, haud infamiam, putarem.'

"The threats go further than abuse: personal violence is denounced. I do not believe it: it is not the genius of the worst men of this country in the worst of times. But I have set my mind at rest. The last end that can happen to any man never comes too soon, if he falls in support of the law and liberty of his country (for liberty is synonymous to law and government). Such a shock, too, might be productive of public good: it might awake

the better part of the kingdom out of that lethargy which seems to have benumbed them; and bring the mad part back to their senses, as men intoxicated are sometimes stunned into sobriety.

"Once for all, let it be understood, that no endeayours of this kind will influence any man who at present sits here. If they have any effect, it would be contrary to their intent: leaning against their impression, might give a bias the other way. But I hope, and I know, that I have fortitude enough to resist even that weakness. No libels, no threats, nothing that has happened, nothing that can happen, will weigh a feather against allowing the defendant, upon this and every other question, not only the whole advantage he is entitled to from substantial law and justice, but every benefit from the most critical nicety of form, which any other defendant could claim under the like objection. The only effect I feel, is an anxiety to be able to explain the grounds upon which we proceed, so as to satisfy all mankind, that a flaw of form, given way to in this case, could not have been got over in any other."*

Wilkes having been imprisoned under the judgment of the court of king's bench for the publication of these libels, petitioned the house of commons for relief, alleging, amongst other grounds, the alteration of the record by the order of Lord Mansfield. The debate on this petition was one of the few occasions in which Mr. Blackstone appeared as a speaker in the house of commons. He shortly, but strenuously, defended Lord Mansfield, and concluded with moving, "that the complaint of Mr. Wilkes was an audacious aspersion on the chief justice, calculated to convey a gross misrepresentation of the fact, and to prejudice the minds of the people against the administration of public justice."

In the interminable debates which arose out of the proceedings connected with Mr. Wilkes, the conduct of Lord Mansfield, in matters of libel, became the subject of frequent discussion, and of much censure. In the

* State Trials, vol. xix. p. 1111.

debate on Lord Chatham's motion, of the 5th of De cember, 1770, declaring the capacity to be chosen a member of parliament an inherent right of the subject, his lordship took occasion to observe upon the modern manner of directing a jury from the bench, and giving judgment upon prosecutions for libel. Lord Mansfield,

in reply, defended himself with considerable vigour, concluding his speech in the following words:

66 Judges, my lords, cannot go astray from the express and known law of the land. They are bound by oath punctually to follow the law. I have ever made it the rule of my conduct to do what was just, and, conscious of my own integrity, am able to look with contempt upon libels and libellers. Before the noble lord, therefore, arraigns my judicial character, he should make himself acquainted with facts. The scurrility of a newspaper may be good information for a coffee-house politician; but a peer of parliament should always speak from higher authority; though, if my noble accuser is no more acquainted with the principles of law in the present point than in what he advanced to support the motion, where he told us an action would lie against the house of commons for expelling Mr. Wilkes, I am fearful the highest authorities will not extend his ideas of jurisprudence nor entitle him to a patient hearing upon a legal question in this assembly.*

Lord Chatham in answer said, "My lords, if I conceive the noble lord on the woolsack right, or have been rightly informed by the public prints, from which, I candidly confess, I originally derived my information on this subject, the doctrine of the king's bench is, that a libel or not a libel is a question of law to be decided only by the court, and the sole power of the jury is to deter→ mine upon the fact of printing and publishing. This, my lords, I understand to be the noble lord's opinion; but this I never understood to be the law of England: on the contrary, I always understood that the jury were competent judges of the law as well as of the fact, and

*Parl. Hist. vol. xvi. p. 1305.