England's Alarm!/Remarks thereon, and on the Case of the Dean of St. Asaph
REMARKS
ON THE
PRECEDING DIALOGUE,
AND THE CASE OF THE
DEAN OF SAINT ASAPH.
BY M. DAWES, Esq.
WHEN Mr. ERSKINE moved the Court for a new trial, on the ground of misdirection to the Jury, at Shrewsbury, whereby they were left to themselves on the subject of the defendant's intentions, in publishing the preceding Dialogue, the ingenious and just manner in which he exposed the sophistry of Mr. Bearcroft, and Mr. Justice Buller's arguments, so alarmed Lord Mansfield, and appeared so powerfully to shake the doctrine long laid down by his Lordship, that he regretted much a motion had not rather been made in the beginning, to arrest the judgment. It is therefore due to him to say, that in this particular his art, though contrary to the maxim of ars efl celare artem, has favored his opponent, who, in spite of his wishes, held up his own tenets as absurd, and forced from Mr. Justice Willes and Mr. Bearcroft, a declaration, which implied every thing in direct contradiction to the prevailing doctrine of libels. By admitting that a Jury have a right to find a general verdict, they admit them, to all intents and purposes, to be judges of guilt, or no guilt, according to the charge of which a man is indicted, and which, if not made out in evidence, must with them, and them only, fall to the ground.
Yet, as nothing has been said on the criminality of the Dialogue, tho' judgment was properly arrested, because the indictment stated no averments from the inuendos, or otherwise, it may be proper, in this place, to confider its nature and tendency, in opposition to the prosecutors of the Reverend Dean, and all their coadjutors, who have marked him out for vengeance in vain.
The question of libel or no libel, or indeed the criminality of any paper, taken up as the former, being assumedly in the criminal court, though justly in the Jury, let us see then how far the Dialogue between a Gentleman and a Farmer is obnoxious to censure. The mere defect of the indictment on which the Dean of St. Asaph was arraigned and tried, having entitled him to an acquittal, the question of crime or no crime, as to the dialogue set out in it, never came before the court. And very fortunately for Lord Mansfield, who, in every other case between man and man, is celebrated for dispensing the most equitable justice, that very doctrine he seems peculiarly fond of, was reserved to be destroyed, until some future occasion shall again call forth the honest exertions of Mr. Erskine, to rescue a supposed libeller from the fangs of the law's exclusive consideration on his guilt, after a Jury have found the innocent fact of printing, or publishing, on the trial of the indictment, which, in point of inuendo and averment, may be every way compleat and pleader like.
It was argued by Mr. Berarcroft and Mr. Buller, in order to blind the Jury's eyesight into the true distinction, that because they had no right to judge of the operation of a fine, in a civil cause of ejectment, nor to determine murder or no murder, in a criminal one, they had nothing to do with the criminality of any paper, for the writing or publishing whereof, a man was prosecuted as a libeller. This mode of reasoning involves a contradiction. In an ejectment, if the operation of a fine make against a plaintiff's lessor, and favour a defendant, the Judge explains the law to the Jury, who find for such defendant, because they find he committed no trespass by his ouster, though confessed by the common rule of court, so as to bring on the question of title only. Here it must be born in mind, that the Jury consider law and fact. The law is not left for the court to judge exclusively of, as it arrogantly does in the case a libel. The Jury, by finding for the plaintiff, or the defendant, include it in their verdict. And as to the other pretence, that they have nothing to do with the question of murder or no murder, no Crown Lawyer will be hardy enough to say, in his closet, whatever he may say in court, that if they find a man guilty of it, they do not join law and fact together, or that when the law is fully explained to them, they do not apply it to the fact proved, and find accordingly.
Away then with such arguments as these are, which have, nevertheless, from their perplexity, long dazzled the comprehension of Juries, who have been awed and hoodwinked into the directions of Judges, on trials for public libels; and who, from a want of a just sense of their duty, and of that false doctrine which has been imposed on them as orthodox, have been finally, though ignorantly induced to substitute guilt for innocence.
No contradiction can be greater than Mr. Bearcroft of himself, when after quoting the instance, that a Jury have nought to do with the operation of a fine, or the question of murder or no murder, he admitted they had a right to find a general verdict. By the former, it is very plain they join law and fact together, when the law is explained to them, and by the latter, they judge of that criminality, which he said at Shrewsbury they had nothing to do with.
Having then seen that law and fact are inseparable in all cases, and that Juries, of right, determine on both, when connected together to constitute an offence or crime, the view of the simple Dialogue that Mr. Jones, the Attorney, thought fit, under the influence of some over-ruling power, to attack as a libel, will be enough to convince us that the criminal court must have deemed it harmless, either on a demurrer, or an arrest of judgment, before or after trial.
But supposing, by the way, that in every prosecution for a libel, the writing, or publishing, were unquestionable, and the sense of the court were to be taken on the criminality of either by demurrer (which would, as things now go, save much time, trouble, and expence, as the rule of law at present stands constructed by the Judges, unestablished on the noble basis of the common law, lex terræ, or statute law) a man has nothing to depend on but their discretion, and the partial use of the jargon of inuendos, averments, and intendments for his acquittal. If these can possibly be warped, as was the case, in a decree, with Mr. Horne, and, no doubt, many others, any paper, the contents whereof arraign the conduct of a Minister, or speak of and concerning the King and his government, may, or may not be deemed criminal, as the Judges please. They have no legal criterion, whereby the innocence or criminality of our discussions is discoverable. Their provocation and tendency to break the peace, are all that constitute their guilt. Now, granting readily that a rebellion actually begun, may produce a revolution, in which it is lost and forgotten, and that consequently it is the duty of the existing government to prevent it, none but the over-timid and apprehensive can ever say, that a paper written with moderation, temper, and positive or speculative truth, can produce it. It may be otherwise with inflammatory falsehoods, which ought to be punished, falsehood being a crime in itself, which, from its aggravation, and being disseminated among the people, has a real tendency to break the peace, if not to raise rebellion. This falsehood, however, is not to be implied, created by inuendo, or raised by averment or intendment, contrary to the maxim of Beau-pleader, which Lord Coke calls the heart-firing of the law. It must appear in the indictment, and be proved to the Jury, who are the proper, the natural judges of the intent of a defendant, drawn from facts, or he ought to be acquitted. If, for example, he own to them the writing or publishing, and that he will write or publish the like again, the criminality of that writing will determine his intention to be criminal, of which they have the right to judge.
The Jury who tried the Dean of St, Asaph, at Shrewsbury, found the fact of publishing only, though in a parley with the Judge, they found also the inuendos, but nothing about a libel, consequently they confounded the distinction, in the case of Woodfall, on which Lord Mansfield said, that a verdict of publishing only, negatived the inuendos. To find, therefore, the inuendos and publishing only, is certainly not to negative the former, but to find, from their admission after they considered them, that there was no guilt in the defendant, and to acquit him. This the court determined, on the motion in arrest of judgment, by saying that the indictment was insufficient, because nothing was averred in it expressly, or by intendment of law. The Jury could not determine on the averments, because the indictment did not contain any, and this is a particular that seems to have escaped all the writers on the subject, who are not of the profession of the law. Hence, after all the eclat that has been made about the Dean of St. Asaph, the question whether the Dialogue he published were criminal, as a libel, or not, has never been agitated, except by Mr. Bearcroft, when addressing the Jury on the trial, and endeavouring to obtain their general verdict in favour of his client.
As it is said, in the advertisement prefixed to this offensive Dialogue, "That the friends of the Revolution will instantly see that it contains no principle which has not the support of the highest authority, as well as the clearest reason, so it may be said in addition, that nothing but downright party hatred, and libellous malice, could have set on foot a criminal prosecution against the Dean for publishing it; a prosecution, which the prosecutor's counsel deemed imprudent. And although in the same breath he gave his opinion, that the Dialogue was a libel, and meant to reflect on the King and his government, as well as to excite sedition and discontent among the people, almost the contrary is the truth, and of course, the Dialogue is no libel at all. A writing may reflect on the King and his government, and be very true, innocent, constitutional, and well meant. If it be as simple as the Dialogue, and as consonant with the Revolution principles of a Somers and a Locke, it can never be a libel, even though a King's counsel, in defence of a government which may openly violate them, should presume to declare his opinion to the contrary.
The whole crime alledged in this Dialogue is, that it advises the people to take up arms, and learn the Prussian exercise; but this is not true. The question to the Farmer is—What if a few great Lords, or, wealthy men, were to keep the King himself in subjection; yet exert his force, lavish his treasure, and misuse his name, so as to domineer over the people, and manage the Parliament?—To which he replies—We must fight for the King and ourselves—and an honest patriotic answer it is. It is of and concerning the King and his government, which ought to be supported against such Lords or wealthy men, who may strive to keep him in subjection, and abuse his people; and the means he points out in a subsequent answer, are constitutional. This Mr. Bearcroft said, in one sense, though in another he applied it as libellous.
Such contradictions, such warpings, such jargon and confusion, which such legal sophists are guilty of, may well embarrass a Jury of honest, well-intentioned men, and deprive them of their right. But when truth is separated and disentangled from them it must appear, 1st. That the Dialogue in question is no libel. 2d, That a Jury have a right to judge of libel or no libel. And lastly, that it only requires a knowledge of the subject itself, independent of Star Chamber prejudices, to say a libel is indefinable, and that nothing tending to a breach of the peace is criminal, but what, is either criminal in itself, or malum prohibitum.
In short, so vague, indefinite and arbitrary is the whole doctrine of libels, as drawn from the slavish principles of the civil law, that its defenders are involved in the grossest contradictions and prevarications in spite of themselves, and every effort to avoid it. Yet, Heaven be praised, it is now become so well understood, and its deceit shines so glaringly out of the veil that has so artfully been spread over it, that another Dialogue, and another prosecution, like a late one, will in all probability so severely hamper the criminal Judges, in their own sophistry, as either to compel them to leave Juries to judge of law and fact, in matters of libel, as in all other, agreeably to their right so to do, or that the business will be taken up by Parliament, for the honour of God and conscience, truth and common reason; otherwise the constrained surrender of English liberty, in this one instance, may lead to the surrender of many more, until in the end there may be none to surrender. It is a subject of importance, and the protection of one liberty may, by the fame rule, lead to the protection of every other, which make the English character throughout the world unrivalled.