the established church, to whom the ecclesiastical system of the Moravians was recommended by its admission of the principle of episcopacy, though not quite according to the rigour of the orthodox notion. The Moravians and the Methodists afterwards quarrelled; but, although the former always continued mainly a foreign community, they are said to have increased in this country to the number of about twelve hundred persons by the year 1742; and in 1747 they had risen to so much importance both in England and in America that an act of parliament was passed,* principally for their accommodation, extending to all foreign Protestants who had resided in the colonies for seven years, and who had conscientious scruples against the taking of an *Stat. 20 Geo. II. c. 44. oath, the privilege formerly granted to Quakers of making their affirmation instead, and also conferring upon them the state and rights of naturalborn subjects of the kingdom, in the same manner as had been done in regard to the colonial Jews in 1740.* Count Zinzendorff, who visited England again in 1749, died in 1760. Baron Emanuel Swedenborg, the founder of the sect calling themselves by his name, professed to have received the first of his divine revelations in London in the year 1743, and died here in 1772. He obtained many followers in his lifetime in England as well as in other parts of Europe and in America; and his disciples still form a considerable community in this country. See Pictorial History of England, iv. 637. MEDAL OF LORD CHANCELLOR BATHURST. The obverse represents the Six Clerks' Office in Chancery-lane. CHAPTER III. HISTORY OF THE CONSTITUTION, GOVERNMENT, AND LAWS. HE reign of George preceding period of our history, there remained some points of not inconsiderable importance to be settled by succeeding generations. The Letters of Junius, whatever other merits or demerits they may maire du palais-possess, may at least serve to indicate what were the that is, by a minister particular constitutional questions that towards the chosen solely by the beginning of the reign of George III. agitated the court. The failure public mind and engaged the public attention. of the attempt was A great, probably the greater, portion of the inonly a further cor- terest of those celebrated letters arises, it is true, roboration of the from their keen personality, couched in polished principle, that, since language, though often consisting mainly of dark the Revolution, insinuation, and accompanied by a bitterness of much of the sub- invective often rising into ferocity, and apparently stance of sovereign- tinged throughout with the malignity of personal ty in this country is lodged in the parliament. The rancour. The people have been in all ages pecuking, it is true, still bore the name and much of liarly fond of being admitted as it were behind the the outward form, but with these he retained only a scenes of the great political drama; of being let fractional part (it would be no easy problem to say into the secret of the private and domestic lives, with exactness how much) of the sovereign and actions, and infirmities, and vices of their power. The individual who had most influence with rulers; of seeing those whom they habitually envy the House of Commons, not he who had most in- or fear for a time off their vantage ground; of fluence with the king or queen, was the individual being permitted from one point as it were to look to whom was committed the administrative author- down upon them, at least to look at them familiarly. ity-in other words, was the chief or prime minis- This, no doubt, which has obtained a degree of ter. The reigning prince had still, indeed, con- popularity for productions of far inferior literary siderable influence in advancing a favourite, when merit, was one great cause of the large share of there were no particular obstacles to that advance- public attention bestowed upon the Letters of Junius. ment arising from parliamentary unpopularity. Thus a sort of maire du pulais influence was about as much the cause of the advancement of the Duke of Marlborough as of that of Lord Bute. But in the former case that influence was supported by extraordinary merit in the individual favoured, in the latter case it was not; which sufficiently accounts for the difference in the results. Though the principal features of our present constitution were marked out and fixed during the Still, however, after deducting and making allowance for this, there remains enough of matter of a political or constitutional nature to show that there were then some constitutional questions of considerable importance that had still to be determined. The principal of these questions are indicated in the following passage in the Dedication to the Letters of Junius:-"Let it be impressed upon your minds, let it be instilled into your children, that the liberty of the press is the palladium of all the civil, political, and religious rights of an Englishman; and that the right of juries to return a general verdict, in all cases whatsoever, is an essential part of our constitution, not to be controlled or limited by the judges, nor, in any shape, questionable by the legislature." Here we have two questions, a general and a special one; that is, the question of the right of juries to return a verdict involving the law as well as the fact in all cases whatsoever, and the question of their right so to do in the special case of libel-particularly political libel. I. As to the general question, that is, as to the right of the jury by the laws and customs of England to find in all cases submitted to them a verdict absolutely for the plaintiff or defendant-in other words, a verdict involving the determination of the question both of law and fact-the law on it is laid down so clearly, and at the same time so succinctly, both by Littleton and Lord Coke, that it would seem wonderful that it should have given rise to so much discussion, if we did not know how potent are political passions and animosities to darken and confound any question. The law is contained in the 368th section of Littleton, and Lord Coke's commentary thereon. In that section, Littleton's words are "If the inquest [jury] will take upon them the knowledge of the law upon the matter, they may give their verdict generally, as is put in their charge." Upon which Lord Coke has this commentary :-" Although the jury, if they will take upon them (as Littleton here saith) the knowledge of the law, may give a general verdict, yet it is dangerous for them so to do, for, if they do mistake the law, they run into the danger of an attaint; therefore to find the special matter (i. e. the fact without applying the law to it) "is the safest way where the case is doubtful." Coke, indeed, had said a little before-"Et sicut ad quæstionem juris non respondent juratores sed judices; sic ad quæstionem facti non respondent judices sed juratores. For jurors are to try the fact, and the judges ought to judge according to the law that riseth upon the fact, for ex facto jus oritur."+ But the effect of this passage is modified and controlled by that of the subsequent passage of the commentary which we have quoted above. Moreover, the words of the clause in the statute (13 Edw. I. c. 30, § 2) by which the jurors are not to be compelled precisely whether it be disseisin or not, so that they do show the truth of the fact, and require aid of the justices," imply that before that statute the jurors were necessarily judges of the law as well as the fact, and were after it to be at their option judges of both or only of the fact. دو to say It is evident then that, by the common law, the English jury possess more of the qualities of what is commonly understood by the judicial character than the private citizen, called in the language of the Roman law judex, and appointed by the prætor, governor of a province, or municipal magistrate, to determine the point of fact; although on a former occasion we said, not with perfect accuracy, that the Roman juder corresponded to our jury; the English jury being to all intents and purposes, according to the authority of those who are considered the sages of the English law, judges armed with the authority of deciding on the question both of law and fact, subject nevertheless, like other judges, to an appeal from their sentence, (verdict, as it is called in their case,) and to somewhat heavy consequences if they shall be found to have interpreted the law erroneously. Originally, indeed, those consequences consisted of penalties so heavy that they must have deterred the jury in many, if not most cases, from giving any opinion involving the law of the case. "If the grand jury," says Blackstone, "found their verdict a false one, the judgment by the common law was, that the jurors should lose their liberam legem, and become for ever infamous; should forfeit their goods and the profits of their lands; should themselves be imprisoned, and their wives and children thrown out of doors; should have their houses razed, their trees extirpated, and their meadows ploughed; and that the plaintiff should be restored to all that he lost by reason of the unjust verdict. But, as the severity of this punishment had its usual effect, in preventing the law from being executed, therefore, by the statute 11 Henry VII. c. 24, revived by 23 Henry VIII. c. 3, and made perpetual by 13 Eliz. c. 25, an attaint is allowed to be brought after the death of the party, and a more moderate punishment was inflicted upon attainted jurors; viz. perpetual infamy, and, if the cause of action were above 401. value, a forfeiture of 201. a-piece by the jurors, or, if under 40l., then 57. a-piece, to be divided between the king and the party injured; so that a man may now bring an attaint either upon the statute or at common law, at his election ; and in both of them may reverse the former judgment. But the practice of setting aside verdicts upon motion, and granting new trials, has so superseded the use of both sorts of attaints, that I have observed very few instances of an attaint in our books later than the sixteenth century." § The following passage, too, in a case in Moore's Reports, supports the view that the jury had a right to give a verdict involving both the law and the fact, subject, however, to revision and correction as to law when they had mistaken the law. "Et les justices diont que lou les jurors trove matter encounter ley, les justices ne pñderont notice de ceo, mes adjudgeront comme le ley voit."|| And this course is the one that in practice would in ordinary cases be the more eligible, as being attended with less delay and expense. *Pict. History of England, vol. i. P. 88. That is, the jury of twenty-four, appointed to try an appeal from a verdict by writ of attaint. The provision in the Act is, that the attaint is not to abate by the death of the party, or of any of the jury, as long as two of the jury are alive. 3 Com. 404. Lee v. Lee, Moore, 268. "And the justices said that, when the jurors find matter contrary to law, the justices will not take notice of that, but will give judgment according to law." See also 15 Vin. Abr. 523. 3 Y II. As to the special question, namely, the right of juries to include in their verdict the point of law as well as fact, in the particular case of libel. The press had become to a certain extent free in the reign of William III. The licensing act* had been suffered to expire in 1679, but was revived in 1685 for seven years. In 1692 it was continued till the end of the session of 1693. The attempts afterwards made to renew its operation were defeated. The term "liberty of the press," however, implies a qualified or relative, and not an absolute, liberty, for it is a liberty subject to the law of libel-a law which has always been, and is likely, at least to a considerable extent, always to be, indefinite. In regard to public or political discussion, a sort of tacit change is generally recognised as having taken place in the law of libel, which renders the liberty of the press to that extent tolerably complete. Before the Revolution it seems to have been the received doctrine, that a writing reflecting on the government, or upon the character or fitness of any one employed in it, was a libel. The Revolution having made no change in the law, it was laid down by Holt, in the case of Tutchin, that to possess the people with an ill opinion of the government, that is, of the ministry, is a libel. And the reason might partly be, as alleged on various occasions by the crown lawyers or from the bench, that there can be no reflection on those that are in office under the crown, but it must cast some reflection on the wearer of the crown, who employs them. But by and by it was found to be more expedient for the ministry attacked to retaliate with the same weapons with which the attack was made, until at length it became tacitly understood that the public characters and administration of statesmen are fair topics of free discussion, and even of attack within certain bounds. However, "the just limit between political and private censure has been far better drawn in these later times, licentious as we still may justly deem the press, than in an age when courts of justice had not deigned to acknowledge, as they do at present, its theoretical liberty. No writer, except of the most broken reputation, would venture at this day on the malignant calumnies of Swift."+ Before, and for some time after the Revolution, the judges permitted evidence to be given as to the truth of an alleged libel;, but latterly they laid it down that falsehood, though always alleged in the indictment, was not essential to constituting it a libel; and they refused in the case of an indictment or information to allow the truth of the libel to be pleaded, or given in evidence, or even urged in mitigation of punishment, though in a civil action the truth of the fact may be given in evidence. The judges, for the most part, too, held that the sole province of the jury was to determine the fact of printing and publishing; and also whether what are called the innuendoes were properly filled up, that is, whether the libel meant that which in the *See Pict. Hist. of England, iii. 386, &c. indictment or declaration it was alleged to mean. Whether that meaning, when so determined, was or was not a breach of the law, was held to be a question of law, which the court alone was competent to decide. And certainly this doctrine, in theory at least, does seem quite consonant to the reason which prescribes that there shall be judge and jury; the jury to ascertain the facts-the judge to apply the law to them when ascertained. In practice, however, it was found to be attended with consequences which set not only the majority of the public but also some lawyers of name in opposi tion to it. And it is easy to see that, though the doctrine may be applied without difficulty to those two grand primary rights which the law confers upon every man, viz. his person and property, its application to the case of the right next in importance, his reputation, may, from the less tangible nature of the subject-matter, be attended with extraordinary difficulties. This state of the law of libel, which continued till the 32 Geo. III., gave rise to much agitation and dissatisfaction, particularly about the time of the trials of Woodfall for the publication of Junius's Letters, and Wilkes for the publication of No. 45 of the North Briton, under Lord Mansfield. When the information against Woodfall came on for trial, 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 found the defendant "guilty of printing and publishing only." Lord Mansfield, in delivering the opinion of the court, which was that a venire de novo ought to issue, thus justified 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."+ When the information against Miller, one of those who had republished the libel, was tried, Lord Mansfield directed the jury 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 informa "This is the old common-law mode of proceeding to a second trial, and differs materially from the granting a new trial, inasmuch as the venire de novo is awarded for some defect appearing upon the face of the record, while a new trial is granted for matter entirely extrinsic. A venire de novo is not awarded for every defect appearing upon the face of the record, but for a defective finding in the verdict only." 2 Archbold's Practice, 1138. State Trials, vol. xx. p. 920. tion. 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: 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." Towards the end of his charge to the jury, Lord Mansfield added a sentence which seems to justify Junius's accusation that he had "grossly contradicted himself." His Lordship said, "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 can be more uncertain, from the different opinions of mankind." In the course of the same year, two informations having been filed against 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, but Mr. Wilkes, not appearing at the proper time, was outlawed. He afterwards appeared, and endeavoured to reverse the outlawry, and Lord Mansfield was keenly attacked for allowing the amendments to be made. His lordship, in delivering his judgment on the writ of error brought by Mr. Wilkes, after examining the authorities, thus continued, in a strain which may be cited as a good specimen of his judicial eloquence, at once calm, clear, grave, and dignified:-"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 government. Audacious 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. "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 anything 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. 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.' I "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 syno |