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dency of the publication; but Lord Raymond, in his NEW-YORK, direction to the jury, went the whole length of the charge in the present case. He told the jury that there The People were two things only for their consideration: 1st. Whether the defendant was guilty of publishing; and, 2d. Whether the iuuendoes were justly stated and applied; and that the third question, whether the publication was libellous, belonged exclusively to the court as matter of law. The same doctrine was laid down by Ch. J. Lee, in the case of Owen; (10 St. Tr. Appendix, 196.) by Sir Dudley Ryder, in the case of Nutt; and by Lord Mansfield, in the cases of Shebbeare, Woodfall, and others, (5 Burr. 2661. 3 Term. Rep. 430.) It is to be observed, however, that in none of these cases did the counsel for the defendants renounce what they conceived to be the privilege of the defendants, and the right of the jury. Lord Camden was counsel for the defendants, in the cases of Owen and Shebbeare, and he claimed and exercised the right of addressing the jury on the whole matter of the libel. (Parliamentary Senator, vol. 5. p. 822.) In the case of Woodfall, the defendant's counsel likewise pressed the jury to acquit him, on the ground that the intent was innocent, and the paper not libellous; and the counsel for the crown, on the other hand, urged to the jury the criminal intent and pernicious tendency of the paper. The same steps were followed by counsel, in the case of the Dean of St. Asaph. (3 Term. Rep. 428.) This uniform practice of counse of the first rank at the bar is pretty strong evidence that the rule laid down in Franklin's case was never aquies ced in, nor regarded as the settled law. But it was not the counsel only who dissented from this doctrine. Lord Camden and Lord Loughborough did, as judges, uni formly resist it, and one of them declared, that it had

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NEW-YORK, always been his practice, in cases of libel, to state the law as it bore on the facts, and to refer the combined consideration to the jury. (Senator, vol. 3. p. 647. 650, 651. Vol 5. p. 686. 822.) So Lord Mansfield departed from Lord Raymond's rule, upon the trial of John Horne. (11 St. Tr. 283.) He told the jury there were two points for them to satisfy themselves in, in order to form their verdict. 1st. Did the defendant compose and publish? 2d. Was the sense of the paper libellous, as charged? He concluded by telling them, that they would judge of the meaning of it; that it was a matter for their judgment. His lordship admits to us, in another place, (3 Term. Rep. 418.) that the counsel for the crown and the judges have sometimes expatiated to the jury on the enormity of the libel, with the view to remove prejudices, and obviate captivating harangues; and this confession shows the difficulty and danger of attempting to separate the law and the fact, the publication and the intent, when the issue, the arguments of counsel, and the verdict, comprehended both.

The constant struggle of counsel, and of the jury, against the rule so emphatically laid down by Lord Raymond, the disagreement among the judges, and the dangerous tendency of the doctrine, as it affected two very conspicuous and proud monuments of English liberty, trial by jury and the freedom of the press, at length attracted and roused the attention of the nation. The question was brought before the parliament, and debated in two successive sessions. (In 1791 and 1792, see Debates in the Senator, vols. 3, 4, 5.) There was combined, in the discussion of this dry law question, an assem blage of talents, of constitutional knowledge, of practical wisdom, and of prefessional erudition, rarely, if ever

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before surpassed. It underwent a patient investigation NEW-YORK, and severe scrutiny, upon principle and precedent, and

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a bill declaratory of the right of the jury to give a gene- The People ral verdict upon the whole matter put in issue, without being required or directed to find the defendant guilty merely on the proof of publication and the truth of the inuendoes, was at length agreed to, and passed with uncommon unanimity. It is entitled "An act to remove doubts respecting the functions of juries in cases of libel ;" and, although I admit that a declaratory statue is not to be received as conclusive evidence of the common law, yet it must be considered as a very respectable authority in the case; and especially, as the circumstances attending the passage of this bill, reflect the highest honour on the moderation, the good sense, and the free and independent spirit of the British parlia

ment.

It was, no doubt, under similar impressions of the subject, that the act of congress, for punishing certain libels against the United States, (Laws U. S. vol. 4. p. 204.) enacted and declared, that the jury who should try the cause, should have a right to determine the law and fact, under the direction of the court, as in other cases; and before the passing of that statute, the same doctrine was laid down in full latitude, and in explicit terms, by the Supreme Court of the United States. (3 Dallas, 4.)

The result from this view is, to my mind, a firm conviction that this court is not bound by the decisions of Lord Raymond, and his successors. By withdrawing from the jury the consideration of the essence of the charge, they render their function nugatory and contemptible. Those opinions are repugnant to the more ancient authorities which had given to the jury the power,

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NEW-YORK, and with it the right, to judge of the law and fact, when they were blended by the issue, and which rendered their The People decisions, in criminal cases, final and conclusive. The English bar steadily resisted those decisions, as usurpations on the rights of the jury. Some of the judges treated the doctrine as erroneous, and the parliament, at last, declared it an innovation, by restoring the trial by jury, in cases of libel, to that ancient vigour and independence, by which it had grown so precious to the nation, as the guardian of liberty and life, against the power of the court, the vindictive persecution of the prosecutor, and the oppression of the government.

I am aware of the objection to the fitness and competency of a jury to decide upon questions of law, and, especially, with a power to overrule the directions of the judge. In the first place, however, it is not likely often to happen, that the jury will resist the opinion of the court on the matter of law. That opinion will generally receive its due weight and effect; and in civil cases it can, and always ought to be ultimately enforced by the power of setting aside the verdict. But in human institutions, the question is not, whether every evil contingency can be avoided, but what arrangement will be productive of the least inconvenience. And it appears to be most consistent with the permanent security of the subject, that in criminal cases the jury should, after receiving the advice and assistance of the judge, as to the law, take into their consideration all the circumstances of the case, and the intention with which the act was done, and to determine upon the whole, whether the act done, be, or be not, within the meaning of the law. This distribution of power, by which the court and jury mutually assist, and mutually check each other, seems to be the safest, and,

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consequently, the wisest arrangement, in respect to the NEW-YORK, trial of crimes. The constructions of judges, on the intention of the party, may often be (with the most upright The People motives) too speculative and refined, and not altogether just in their application to every case. Their rules may have too technical a cast, and become, in their operation, severe and oppressive. To judge accurately of motives and intentions, does not require a master's skill in the science of law. It depends more on a knowledge of the passions, and of the springs of human action, and may be the lot of ordinary experience and sagacity.

My conclusion on this first point then, is, that upon every indictment, or information for a libel, where the defendant puts himself upon the country, by a plea of not guilty, the jury have a right to judge, not only of the fact of the publication, and the truth of the inuendoes, but of the intent and tendency of the paper, and whether it be a libel or not; and, in short, of " the whole matter put in issue upon such indictment or information." (Stat. 32 Geo. III.) That in this, as in other criminal cases, it is the duty of the court, "according to their discretion, to give their opinion and direction to the jury on the matter in issue ;" and it is the duty of the jury to receive the same with respectful deference and attention, and, unless they choose to find a special verdict, they are then to exercise their own judgments on the matter in issue, with discretion and integrity.

2. The second point in the case, although a question of evidence merely, is equally important, and still more difficult. It was made a very prominent point upon the argument, and the decision of it is essential for the direction of the judge who is to preside at the new trial that may be awarded.