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vinced, not only how cruel but how impolitic it is to prosecute for religious opinions. *
“ There was no occasion to revoke the edict of Nantes; the jesuits needed only to have advised a plan similar to that which is contended for in the present case : make a law to render them incapable of office; make another to punish them for not serving. If they accept, punish them (for it is admitted on all hands, that the defendant, in the cause before your lordships, is prosecutable for taking the office upon him)-If they accept, punish them; if they refuse, punish them : if they say yes, punish them; if they say no, punish them. My lords, this is a most exquisite dilemma, from which there is no escaping; it is a trap a man cannot get out of ; it is as bad persecution as that of Procrustes : if they are too short, stretch them; if they are too long, lop them.” *
The lords immediately affirmed the judgment of the delegates, reversing the judgment of the sheriff's court and of the court of hustings.
In the year 1770, Lord Mansfield supported the bill for preventing delays of justice by reason of privilege of parliament, upon which he spoke at considerable length. In the course of his speech, he took occasion to express a sentiment, which formed a remarkable feature of his character his contempt of popularity. “ It has been said by a noble lord on my left hand, that I likewise am running the race of popularity. If the noble lord means by popularity that applause bestowed by aftertimes on good and virtuous actions, I have long been struggling in that race, to what purpose all-trying time can alone determine; but if the noble lord means that mushroom popularity, that is raised without merit, and lost without a crime, he is much mistaken in his opinion. I defy the noble lord to point out a single action in my life, where the popularity of the times ever had the smallest influence on my determinations. I thank God, I have a more permanent and steady rule for my conduct — the dictates of my own breast. Those that have
* Holliday, p. 260. Parl. Hist. vol. xvi. p. 316.
foregone that pleasing adviser, and given up their minds to be the slaves of every popular impulse, I sincerely pity ; I pity them still more, if their vanity leads them to mistake the shouts of a mob for the trumpet of fame. Experience might inform them, that many, who have been saluted with the huzzas of a crowd one day, have received their execrations the next; and many who, by the popularity of their times, have been held up as spotless patriots, have nevertheless appeared upon the historian's page, when truth has triumphed over delusion, the assassins of liberty. Why, then, can the noble lord think that I am ambitious of present popularity, that relic of folly and shadow of renown, I am at a loss to determine," * · Had Lord Mansfield wished to adopt the surest mode of avoiding the popularity he so earnestly deprecated, he could not have found a more favourable opportunity than was afforded him in the course of the year 1770. The public mind had been excited and irritated, in an unusual degree, by the events attending the celebrated Middlesex election, and the expulsion of Wilkes from the house of commons. A general dissatisfaction had pervaded the nation, and the metropolis had been the scene of very serious riots. In the midst of these discontents appeared “ The Letters of Junius,” the most remarkable and effective work in the political literature of England. It was obvious that government could not suffer a pro, duction like this to pass unnoticed. Accordingly, on the appearance of the celebrated letter to the king, informaa tions were filed by the attorney-general against Woods fall, the original printer and publisher, Almon, Miller, Say, Robinson, and Baldwin, who had republished it in various forms. The first case brought to trial was that against Mr. Almon, before Lord Mansfield and a special jury, on the 2d of June, 1770, when it was proved for the crown, that a copy of the libel had been bought at the shop of the defendant, from a person acting there as his servant. Mr. Serjeant Glynn, for the defendant,
* Parl. Hist. vol. xvi. p. 977.
insisted that a man could not be made a criminal by the act of his servant; but Lord Mansfield having directed the jury, that a sale by the servant was evidence, when not contradicted or explained, of a publication by the master, on the principle that whatever a man does by another he does himself, the jury found a general verdict of guilty.*
In the ensuing term, Almon's counsel moved for a new trial, contending that there was no proof whatever of a criminal intention in his client, or even the least knowledge by him of the libel having been sold in his shop. A new trial was refused, on the ground that the publication at the shop of the defendant was prima facie evidence of a guilty publication by him. The rule was thus stated by Lord Mansfield :-“ The buying the pamphlet in the public open shop of a known professed bookseller and publisher of pamphlets, of a person acting in the shop, primâ facie is evidence of a publication by the master himself; but it is liable to be contradicted, where the fact will bear it, by contrary evidence tending to exculpate the master, and to show that he was not privy nor assenting to it, nor encouraging it; and this being prima facie evidence of a publication by the master himself, stands good till answered by him; and if not answered at all, becomes conclusive so far as to be sufficient to convict him.” The other judges of the king's bench concurred in opinion with Lord Mansfield. The judgment of the court in this case was made the subject of much severe animadversion, both within and without the walls of parliament, and the conduct of Lord Mansfield upon the trial was commented upon, in the house of commons, in the harshest manner by Mr. Dunning. This case has frequently been considered as an authority for the broad position, that in prosecutions for libel a man is responsible for the act of his servant; a position which, in fact, it does not establish.
On the 13th of June, the information against Mr.
* State Trials, vol xx. p. 803. + Parl. Hist. vol. xvi. p. 1279, and post, Life of Dunning.
Woodfall came on for trial, and Lord Mansfield, in his summing up, directed the jury, “ that the printing and sense of the paper were alone what the jury had to consider of.”* The jury, after much deliberation, found the defendant “Guilty of printing and publishing only." Upon this, two applications were made to the court of king's bench. The first, by the defendant in arrest of judgment; the second, on behalf of the crown, to enter the verdict according to the legal finding of the jury. In delivering the opinion of the court, which was that a venire de novo ought to issue, Lord Mansfield took occasion to justify the direction which he had given to the jury. « That the law,” said he, “ 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. Amongst 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.” t. · The information against Miller was tried on the 18th July, when Lord Mansfield directed the jury I in the following manner: “ I have the satisfaction to know, that if I should be mistaken in the direction I am about to give as to your duty on the present occasion, it will not be final and conclusive; but it is under the full conviction of my own mind, that I am warranted by the uniform practice of past ages, and by the law of the land, that I inform you that the question for your determination is, whether the defendant printed and published a paper of such tenor and meaning as is charged by the information. If the tenor had been wrong, the prosecution would at once have fallen to the ground; but that is not objected to, nor is any meaning suggested by the defendant different to that supplied by the filling up the blanks in the information. If you find the defendant not guilty, you find that he did not print or publish as set forth :
* State Trials, vol. xx. p. 900. + Id. p. 920. Id. p. 869.
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.