129. RECORDS OF JUDICIAL CASES (1763-1820)

(A) Habeas Corpus Proceedings in Wilkes' Case (1763)[1]

There are two objections taken to the legality of this warrant, and a third matter insisted on for the defendant is privilege of parliament. The first objection is that it does not appear to the court that Mr. Wilkes was charged by any evidence before the secretaries of state that he was the author or publisher of the North Briton, no. 45. In answer to this, we are all of opinion that it is not necessary to state in the warrant that Mr. Wilkes was charged by any evidence before the secretaries of state, and that this objection has no weight.... The second objection is that the libel ought to be set forth in the warrant in haec verba, or at least so much thereof as the secretaries of state deemed infamous, seditious, etc.; that the court may judge whether any such paper ever existed, or, if it does exist, whether it be an infamous and seditious libel or not. But we are all of a contrary opinion....

The third matter insisted upon for Mr. Wilkes is that he is a member of parliament — which has been admitted by the king's serjeants — and entitled to privilege to be free from arrests in all cases except treason, felony, and actual breach of the peace, and therefore ought to be discharged from imprisonment without bail.... If Mr. Wilkes had been described as a member of parliament in the return, we must have taken notice of the law of privilege of parliament; otherwise the members would be without remedy where they are wrongfully arrested against the law of parliament. We are bound to take notice of their privileges as being part of the law of the land.... We are all of opinion that a libel is not a breach of the peace.... Suppose a libel be a breach of the peace, yet I think it cannot exclude privilege.... Upon the whole it is absurd to require surety of the peace or bail in the case of a libeller, and therefore Mr. Wilkes must be discharged from his imprisonment.

Howell, State Trials, XIX, 987 f.

(B) Entick v. Carrington (1765)[2]

This record hath set up two defences to the action, on both of which the defendants have relied. The first arises from the facts disclosed in the special verdict, whereby the defendants put their case upon the statute of 24 George II, insisting that they have nothing to do with the legality of the warrants, but that they ought to have been acquitted as officers within the meaning of that act. The second defence stands upon the legality of the warrants....

Upon the whole, we are all of opinion that neither secretary of state nor the messenger are within the meaning of this act of parliament.... The defendants, having failed in the attempt made to protect themselves by the statute ... , are under a necessity to maintain the legality of the warrants under which they have acted and to show that the secretary of state in the instance now before us had a jurisdiction to seize the defendant's papers. If he had no such jurisdiction, the law is clear that the officers are as much responsible for the trespass as their superior.

This, though it is not the most difficult, is the most interesting question in the cause; because, if this point should be determined in favour of the jurisdiction, the secret cabinets and bureaus of every subject in this kingdom will be thrown open to the search and inspection of a messenger whenever the secretary of state shall think fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel. The messenger, under this warrant, is commanded to seize the person described and to bring him with his papers to be examined before the secretary of state. In consequence of this, the house must be searched; the lock and doors of every room, box, or trunk must be broken open; all the papers and books without exception, if the warrant be executed according to its tenor, must be seized and carried away. For it is observable that nothing is left either to the discretion or to the humanity of the officer....

This power, so claimed by the secretary of state, is not supported by one single citation from any law book extant. It is claimed by no other magistrate in this kingdom but himself.... The arguments which the defendant's counsel have thought fit to urge in support of this practice are of this kind: that such warrants have issued frequently since the Revolution ...; that the case of the warrants bears a resemblance to the case of search for stolen goods. They say too that they have been executed without resistance upon many printers, booksellers, and authors, who have quietly submitted to the authority; that no action hath hitherto been brought to try the right; and that, although they have been often read upon the returns of habeas corpus, yet no court of justice has ever declared them illegal. And it is further insisted that this power is essential to government and the only means of quieting clamours and sedition. These arguments, if they can be called arguments, shall be all taken notice of, because upon this question I am desirous of removing every colour or plausibility.

Before I state the question, it will be necessary to describe the power claimed by this warrant in its full extent. If honestly exerted, it is a power to seize that man's papers who is charged upon oath to be the author or publisher of a seditious libel; if oppressively, it acts against every man who is so described in the warrant, though he be innocent. It is executed against the party before he is heard or even summoned. And the information, as well as the informers, is unknown. It is executed by messengers with or without a constable ... , in the presence or the absence of the party, as the messengers shall think fit, and without a witness to testify what passes at the time of the transaction; so that, when the papers are gone, as the only witnesses are the trespassers, the party injured is left without proof. If this injury falls upon an innocent person.

he is as destitute of remedy as the guilty; and the whole transaction is so guarded against discovery that, if the officer should be disposed to carry off a bank-bill, he may do it with impunity, since there is no man capable of proving either the taker or the thing taken. It must not be here forgot that no subject whatsoever is privileged from this search; because both houses of parliament have resolved that there is no privilege in the case of a seditious libel.[3] Nor is there pretence to say that the word "papers" here mentioned ought in point of law to be restrained to the libellous papers only. The word is general, and there is nothing in the warrant to confine it; nay, I am able to affirm, that it has been upon a late occasion executed in its utmost latitude....

Such is the power, and therefore one should naturally expect that the law to warrant it should be clear in proportion as the power is exorbitant. If it is law, it will be found in our books. If it is not to be found there, it is not law. The great end for which men entered into society was to secure their property. That right is preserved sacred and incommunicable in all instances where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by positive law are various. Distresses, executions, forfeitures, taxes, etc., are all of this description; wherein every man by common consent gives up that right for the sake of justice and the general good. By the laws of England every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books and [find] if such a justification can be maintained by the text of the statute law or by the principles of common law. If no such excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.

According to this reasoning, it is now incumbent upon the defendants to show the law by which this seizure is warranted. If that cannot be done, it is a trespass. Papers are the owner's goods and chattels. They are his dearest property, and are so far from enduring a seizure that they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of a trespass, yet, where private papers are removed and carried away, the secret nature of those goods will be an aggravation of the trespass and demand more considerable damages in that respect. Where is the written law that gives any magistrate such a power? I can safely answer there is none, and therefore it is too much for us without such authority to pronounce a practice legal which would be subversive of all the comforts of society. But though it cannot be maintained by any direct law, yet it bears a resemblance, as was urged, to the known case of search and seizure for stolen goods.

I answer that the difference is apparent. In the one I am permitted to seize my own goods, which are placed in the hands of a public officer till the felon's conviction shall entitle me to restitution. In the other the party's own property is seized before and without conviction, and he has no power to reclaim his goods even after his innocence is cleared by acquittal. The case of searching for stolen goods crept into the law by imperceptible practice. It is the only case of the kind that is to be met with.... Observe too the caution with which the law proceeds in this singular case: there must be a full charge upon oath of a theft committed; the owner must swear that the goods are lodged in such a place; he must attend at the execution of the warrant to show them to the officer, who must see that they answer the description; and, lastly, the owner must abide the event at his peril, for if the goods are not found, he is a trespasser and the officer, being an innocent person, will be always a ready and convenient witness against him. On the contrary, in the case before us nothing is described, nor distinguished; no charge is requisite to prove that the party has any criminal papers in his custody; no person [is] present to separate or select, no person to prove in the owner's behalf the officer's misbehaviour. To say the truth, he cannot easily misbehave unless he pilfers, for he cannot take more than all.

If it should be said that the same law, which has with so much circumspection guarded the case of stolen goods from mischief, would likewise in this case protect the subject by adding proper checks — would require proofs beforehand, would call up the servant to stand by and overlook, would require him to take an exact inventory and deliver a copy — my answer is that all these precautions would have been long since established by law if the power itself had been legal; and that the want of them is an undeniable argument against the legality of the thing. What would the parliament say if the judges should take upon themselves to mould an unlawful power into a convenient authority by new restrictions? That would be, not judgment, but legislation.

I come now to the practice since the Revolution, which has been strongly urged with this emphatical addition, that an usage tolerated from the era of liberty, and continued downwards to this time through the best ages of the constitution, must necessarily have a legal commencement. Now, though that pretence can have no place in the question made by this plea — because no such practice is there alleged — yet I will permit the defendant for the present to borrow a fact from the special verdict for the sake of giving it an answer. If the practice began then, it began too late to be law now. If it was more ancient, the Revolution is not to answer for it; and I could have wished that upon this occasion the Revolution had not been considered as the only basis of our liberty....

With respect to the practice itself, if it goes no higher, every lawyer will tell you it is much too modern to be evidence of the common law. And if it should be added that these warrants ought to acquire some strength by thé silence of those courts, which have heard them read so often upon returns without censure or animadversion, I am able to borrow my answer to that pretence from the court of king's bench, which lately declared with great unanimity in the case of general warrants that, as no objection was taken to them upon the returns and the matter passed sub silentio, the precedents were of no weight. I most heartily concur in that opinion.... This is the first instance I have met with where the ancient immemorable law of the land, in a public matter, was attempted to be proved by the practice of a private office. The names and rights of public magistrates, their power and forms of proceeding as they are settled by law, have been long since written and are to be found in books and records. Private customs, indeed, are still to be sought from private tradition. But who ever conceived a notion that any part of the public law could be buried in the obscure practice of a particular person?

To search, seize, and carry away all the papers of thé subject upon the first warrant: that such a right should have existed from the time whereof the memory of man runneth not to the contrary, and never yet have found a place in any book of law, is incredible. But if so strange a thing could be supposed, I do not see how we could declare the law upon such evidence. But still it is insisted that there has been a general submission, and no action brought to try the right.... As, therefore, no authority in our books can be produced to support such a doctrine, and so many star chamber decrees, ordinances, and acts have been thought necessary to establish a power of search, I cannot be persuaded that such a power can be justified by the common law.

I have now done with the argument which has endeavoured to support this warrant by the practice since the Revolution. It is then said that it is necessary for the ends of government to lodge such a power with a state officer, and that it is better to prevent the publication before than to punish the offender afterwards. I answer, if the [legislature] be of that opinion, they will revive the Licensing Act. But if they have not done that, I conceive they are not of that opinion. And with respect to the argument of state necessity, or a distinction that has been aimed at between state offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions....

Lastly, it is urged, as an argument of utility, that such a search is a means of detecting offenders by discovering evidence. I wish some cases had been shown where the law forceth evidence out of the owner's custody by process. There is no process against papers in civil causes. It has been often tried, but never prevailed. Nay, where the adversary has by force or fraud got possession of your own proper evidence, there is no way to get it back but by action. In the criminal law such a proceeding was never heard of; and yet there are some crimes — such, for instance, as murder, rape, robbery, and house-breaking, to say nothing of forgery and perjury — that are more atrocious than libelling. But our law has provided no paper-search in these cases to help forward the conviction.... If, however, a right of search for the sake of discovering evidence ought in any case to be allowed, this crime above all others ought to be excepted, as wanting such a discovery less than any other. It is committed in open daylight and in the face of the world; every act of publication makes new proof; and the solicitor of the treasury, if he pleases, may be the witness himself....

I have now taken notice of everything that has been urged upon the present point; and upon the whole we are all of opinion that the warrant to seize and carry away the party's papers in the case of a seditious libel is illegal and void.

Ibid., XIX, 1044 f.

(C) Somersett's Case (1772)[4]

... The only question before us is whether the cause on the return is sufficient. If it is, the negro must be remanded; if it is not, he must be discharged. Accordingly, the return states that the slave departed and refused to serve; whereupon he was kept, to be sold abroad. So high an act of dominion must be recognized by the law of the country where it is used. The power of a master over his slave has been extremely different in different countries. The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created is erased from memory. It is so odious that nothing can be suffered to support it but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.

Ibid., XX, 82 f.

(D) Campbell v. Hall (1774)[5]

The general question that arises out of all these facts found by the special verdict is this: whether the letters patent under the great seal bearing date the 20th July, 1764, are good and valid to abolish the French duties; and in lieu thereof to impose the 4½ per cent, duty above mentioned, which is paid in all the British Leeward Islands. It has been contended at the bar that the letters patent are void on two points. The first is that, although they had been made before the proclamation of the 7th October, 1763, yet the king could not exercise such a legislative power over a conquered country. The second point is that, though the king had sufficient power and authority before the 7th October, 1763, to do such legislative act, yet before the letters patent of the 20th July, 1764, he had divested himself of that authority.

A great deal has been said and many authorities cited relative to propositions in which both sides seem to be perfectly agreed, and which, indeed, are too clear to be controverted. The stating some of those propositions which we think quite clear will lead us to see with greater perspicuity what is the question upon the first point and upon what hinge it turns. I will state the propositions at large, and the first is this: a country conquered by the British arms becomes a dominion of the king in the right of his crown, and therefore necessarily subject to the legislature, the parliament of Great Britain. The second is that the conquered inhabitants, once received under the king's protection, become subjects and are to be universally considered in that light, not as enemies or aliens. The third [is] that the articles of capitulation upon which the country is surrendered and the articles of peace by which it is ceded are sacred and inviolable according to their true intent and meaning. The fourth [is] that the law and legislative government of every dominion equally affects all persons and all property within the limits thereof, and is the rule of decision for all questions which arise there.... The fifth [is] that the laws of a conquered country continue in force until they are altered by the conqueror.... The sixth and last proposition is that, if the king — and when I say the king, I always mean the king without the concurrence of parliament — has a power to alter the old and to introduce new laws in a conquered country, this legislation being subordinate (that is, subordinate to his own authority in parliament), he cannot make any new change contrary to fundamental principles. He cannot exempt an inhabitant from that particular dominion ... or give him privileges exclusive of his other subjects....

But the present change, if it had been made before the 7th October, 1763, would have been made recently after the cession of Grenada by treaty; and is in itself most reasonable, equitable, and political; for it is putting Grenada, as to duties, on the same footing with all the British Leeward Islands.... The only question, then, on this first point is whether the king had a power to make such change between the 10th of February, 1763, the day the treaty of peace was signed, and the 7th October, 1763. Taking these propositions to be true which I have stated, the only question is whether the king had of himself that power.

It is left by the constitution to the king's authority to grant or refuse a capitulation. If he refuses and puts the inhabitants to the sword or exterminates them, all the lands belong to him. If he receives the inhabitants under his protection and grants them their property, he has a power to fix such terms and conditions as he thinks proper. He is entrusted with making the treaty of peace; he may yield up the conquest or retain it upon what terms he pleases. These powers no man ever disputed; neither has it hitherto been controverted that the king might change part or the whole of the law or political form of government of a conquered dominion.

... But upon the second point, after full consideration, we are of opinion that, before the letters patent of the 20th July, 1764, the king had precluded himself from the exercise of a legislative authority over the island of Grenada. The first and material instrument is the proclamation of the 7th October, 1763. See what it is that the king there says, with what view, and how he engages himself and pledges his word. "For the better security of the liberty and property of those who are or shall become inhabitants of our islands of Grenada, we have declared by this our proclamation that we have commissioned our governor, as soon as the state and circumstances of the colony will admit, to call an assembly to enact laws," etc. With what view is this made? It is to invite settlers and subjects. And why to invite? That they might think their properties, etc., more secure if the legislation was vested in an assembly than under a governor and council only.

Next, having established the constitution, the proclamation of the 20th March, 1764, invites them to come in as purchasers. In further confirmation of all this, on the 9th April, 1764, three months before July, an actual commission is made out to the governor to call an assembly as soon as the state of the island would admit thereof. You observe there is no reservation in the proclamation of any legislature to be exercised by the king, or by the governor and council under his authority in any manner, until the assembly should meet; but rather the contrary. For whatever construction is to be put upon it ... , it alludes to a government by laws in being and by courts of justice, not by a legislative authority, until an assembly should be called. There does not appear from the special verdict any impediment to the calling an assembly immediately on the arrival of the governor, which was in December, 1764. But no assembly was called then or at any time afterwards, till the end of the year 1765.

We therefore think that, by the two proclamations and the commission to Governor Melville, the king had immediately and irrecoverably granted to all who were or should become inhabitants, or who had or should acquire property in the island of Grenada, or more generally to all whom it might concern, that the subordinate legislation over the island should be exercised by an assembly with the consent of the governor and council, in like manner as the other islands belonging to the king. Therefore, though the abolishing the duties of the French king and the substituting this tax in its stead, which according to the finding in this special verdict is paid in all the British Leeward Islands, is just and equitable with respect to Grenada itself and the other British Leeward Islands, yet, through the inattention of the king's servants in inverting the order in which the instruments should have passed and been notoriously published, the last act is contradictory to and a violation of the first, and is therefore void. How proper soever it may be in respect to the object of the letters patent of the 20th July, 1764, to use the words of Sir Philip Yorke and Sir Clement Wearge, "It can only now be done by the assembly of the island or by an act of the parliament of Great Britain." The consequence is judgment must be given for the plaintiff.

Cowper, Reports, I, 208 f.

(E) The Case of the Dean of St. Asaph (1784)[6]

... The fundamental definition of trial by jury depends upon a universal maxim that is without an exception. Though a definition or maxim in law without an exception, it is said, is hardly to be found, yet this I take to be a maxim without an exception: ad quaestionem juris non respondent juratores; ad quaestionem facti non respondent judices.[7]

Where a question can be severed by the form of pleading, the distinction is preserved upon the face of the record, and the jury cannot encroach upon the jurisdiction of the court; where, by the form of pleading, the two questions are blended together and cannot be separated upon the face of the record, the distinction is preserved by the honesty of the jury. The constitution trusts that, under the direction of a judge, they will not usurp a jurisdiction which is not in their province. They do not know and are not presumed to know the law; they are not sworn to decide the law; they are not required to decide the law. If it appears upon the record, they ought to leave it there; or they may find the facts subject to the opinion of the court upon the law. But further, upon the reason of the thing and the eternal principles of justice, the jury ought not to assume the jurisdiction of the law. As I said before, they do not know and are not presumed to know anything of the matter; they do not understand the language in which it is conceived or the meaning of the terms. They have no rule to go by but their affections and wishes. It is said, if a man gives a right sentence upon hearing one side only, he is a wicked judge, because he is right by chance only and has neglected taking the proper method to be informed. So the jury who usurp the judicature of law, though they happen to be right, are themselves wrong, because they are right by chance only and have not taken the constitutional way of deciding the question. It is the duty of the judge in all cases of general justice to tell the jury how to do right, though they have it in their power to do wrong — which is a matter entirely between God and their own consciences.

To be free is to live under a government by law. The liberty of the press consists in printing without any previous licence subject to the consequences of law. The licentiousness of the press is Pandora's box, the source of every evil. Miserable is the condition of individuals, dangerous is the condition of the state, if there is no certain law or — which is the same thing — no certain administration of law to protect individuals or to guard the state. Jealousy of leaving the law to the court, as in other cases so in the case of libels, is now, in the present state of things, puerile rant and declamation. The judges are totally independent of the ministers that may happen to be and of the king himself. Their temptation is rather to the popularity of the day. But I agree with the observation cited by Mr. Cowper from Mr. J. Foster, "that a popular judge is an odious and a pernicious character." The judgment of the court is not final; in the last resort it may be reviewed in the house of lords, where the opinion of all the judges is taken.

In opposition to this what is contended for? That the law shall be in every particular cause what any twelve men, who shall happen to be the jury, shall be inclined to think — liable to no review, and subject to no control, under all the prejudices of the popular cry of the day, and under all the bias of interest in this town, where thousands, more or less, are concerned in the publication of newspapers, paragraphs, and pamphlets. Under such an administration of law, no man could tell, no counsel could advise, whether a paper was or was not punishable.

I am glad that I am not bound to subscribe to such an absurdity, such a solecism in politics. Agreeable to the uniform judicial practice since the Revolution, warranted by the fundamental principles of the constitution, of the trial by jury, and upon the reason and fitness of the thing, we are all of opinion that this motion should be rejected and this rule discharged.

Howell, State Trials, XXI, 1039 f.

(F) Grant v. Gould (1792)[8]

Martial law, such as it is described by Hale and such also as it is marked by Mr. Justice Blackstone, does not exist in England at all. Where martial law is established and prevails in any country, it is of a totally different nature from that which is inaccurately called martial law merely because the decision is by a court martial, but which bears no affinity to that which was formerly attempted to be exercised in this kingdom, which was contrary to the constitution and which has been for a century totally exploded. Where martial law prevails, the authority under which it is exercised claims a jurisdiction over all military persons in all circumstances. Even their debts are subject to inquiry by a military authority. Every species of offence committed by any person who appertains to the army is tried, not by a civil judicature, but by the judicature of the regiment or corps to which he belongs. It extends also to a great variety of cases not relating to the discipline of the army in those states which subsist by military power. Plots against the sovereign, intelligence to the enemy, and the like are all considered as cases within the cognizance of military authority.

In the reign of King William there was a conspiracy against his person in Holland, and the persons guilty of that conspiracy were tried by a council of officers. There was also a conspiracy against him in England, but the conspirators were tried by the common law. And within a very recent period, the incendiaries who attempted to set fire to the docks at Portsmouth were tried by the common law. In this country all the delinquencies of soldiers are not triable, as in most countries in Europe, by martial law; but where they are ordinary offences against the civil peace, they are tried by the common law courts. Therefore it is totally inaccurate to state martial law as having any place whatever within the realm of Great Britain. But there is, by the providence and wisdom of the legislature, an army established in this country, of which it is necessary to keep up the establishment. The army being established by the authority of the legislature, it is an indispensable requisite of that establishment that there should be order and discipline kept up in it and that the persons who compose the army, for all offences in their military capacity, should be subject to a trial by their officers. That has induced the absolute necessity of a mutiny act accompanying the army....[9]

It is one object of that act to provide for the army; but there is a much greater cause for the existence of a mutiny act, and that is the preservation of the peace and safety of the kingdom. For there is nothing so dangerous to the civil establishment of a state as a licentious and undisciplined army, and every country which has a standing army in it is guarded and protected by a mutiny act. An undisciplined soldiery are apt to be too many for the civil power, but, under the command of officers, those officers are answerable to the civil power, that they are kept in good order and discipline. All history and all experience, particularly the experience of the present moment, give the strongest testimony to this. The object of the mutiny act, therefore, is to create a court invested with authority to try those who are a part of the army, in all their different descriptions of officers and soldiers; and the object of the trial is limited to breaches of military duty. Even by that extensive power granted by the legislature to his majesty to make articles of war, those articles are to be for the better government of his forces and can extend no further than they are thought necessary to the regularity and due discipline of the army.

Henry Blackstone, Reports, II, 98 f.

(G) The Case of Wolfe Tone (1798)[10]

[Mr. Curran, counsel for Tone's father]: I do not pretend to say that Mr. Tone is not guilty of the charges of which he was accused — I presume the officers were honourable men — but it is stated in the affidavit as a solemn fact that Mr. Tone had no commission under his majesty, and therefore no court martial could have cognizance of any crime imputed to him while the court of king's bench sat in the capacity of the great criminal court of the land. In times when war was raging, when man was opposed to man in the field, courts martial might be endured; but every law authority is with me while I stand upon this sacred and Immutable principle of the constitution: that martial law and civil law are incompatible, and that the former must cease with the existence of the latter. This is not the time for arguing this momentous question. My client must appear in this court. He is cast for death this day. He may be ordered for execution while I address you. I call on the court to support the law; I move for a habeas corpus to be directed to the provost marshal of the barracks of Dublin and Major Sandys to bring up the body of Mr. Tone.

Lord Chief Justice [Kilwarden]: Have a writ instantly prepared.

Mr. Curran: My client may die while this writ is preparing.

Lord Chief Justice: Mr. Sheriff, proceed to the barracks and acquaint the provost marshal that a writ is preparing to suspend Mr. Tone's execution; and see that he be not executed.

[The sheriff's return is awaited.]

Mr. Sheriff: My lords, I have been at the barracks in pursuance of your order. The provost marshal says he must obey Major Sandys. Major Sandys says he must obey Lord Cornwallis.

Mr. Curran: Mr. Tone's father, my lords, returns after serving the habeas corpus. He says General Craig will not obey it.

Lord Chief Justice: Mr. Sheriff, take the body of Tone into your custody; take the provost marshal and Major Sandys into custody; and show the order of this court to General Craig.

[The sheriff's return is awaited.]

Mr. Sheriff: I have been at the barracks. Mr. Tone, having cut his throat last night, is not in a condition to be removed. As to the second part of your order, I could not meet the parties....[11]

Lord Chief Justice: Let a rule be made for suspending the execution of Theodore Wolfe Tone, and let it be served on the proper persons.

Howell, State Trials, XXVII, 625 f.

(H) Wright v. Fitzgerald (1799)[12]

His lordship said, that the jury were not to imagine that the legislature, by enabling magistrates to justify under the indemnity bill, had released them from the feelings of humanity or permitted them wantonly to exercise power, even though it were to put down rebellion. No: it expected that in all cases there should be a grave and serious examination into the conduct of the supposed criminal; and every act should show a mind intent to discover guilt, not to inflict torture. By examination or trial he did not mean that sort of examination and trial which they were then engaged in, but such examination and trial the best the nature of the case and the existing circumstances would allow of. That this must have been the intention of the legislature was manifest from the expression, "magistrates and all other persons," which proved that, as every man, whether magistrate or not, was authorized to suppress rebellion and was to be justified by that law for his acts, it is required that he should not exceed the necessity which gave him the power; and that he should show in his justification that he had used every possible means to ascertain the guilt which he had punished; and, above all, no deviation from the common principles of humanity should appear in his conduct.

The plaintiff appeared, by evidence uncontradicted, to be a man of unimpeachable character and to have been grossly and wantonly abused. He was therefore entitled to a compensation in damages — what those damages should be it was not his province to determine. But from the injury proved to have been sustained, if the jury should give the whole damages [£1000] laid in the declaration, he would not think it too much. He thought it but justice to the defendant, to say, that he believed he had done much good in his capacity as sheriff, had suppressed rebellion in his county, and had proved himself to be a man of great courage and intrepidity.

Ibid., XXVII, 765 f.

(I) The King v. Burdett (1820)[13]

We have ... had allusion to the meeting at Manchester and evidence has been tendered to me for the purpose of showing that the defendant has said nothing but the truth of that which took place there. Nobody knows better than the learned counsel for the defendant that, consistently with my oath, I could not receive that; because if the libel were proved to be true, it cannot bear upon this case. The question is not — nor ever can be, if the liberty of the press is to be supported — whether that which has been written be true or false, because then a man meaning honestly might be convicted for stating an untruth. It is not the truth or falsehood that makes a libel, but the temper with which it is published. And another ground on which the truth or falsehood cannot be inquired into is this: because, whether it be true or false, no man ought to charge another with crime. That would make the liberty of the press inconsistent with another liberty equally dear to an Englishman — his character. No man's character is to be taken from him by attacks in newspapers or any publication whatever. If they do what is wrong, you were properly told by the learned counsel in the outset, the courts of justice are open to bring them to punishment. It is on these grounds I refused the evidence; because, according to the law of the land, it is not admissible....

... Another point on which the motion for a new trial was made was that I took upon myself to lay down the law to the jury as to the libel, and that since the statute 32 George III, c. 60,[14] I was not warranted in so doing. I told the jury that they were to consider whether the paper was published with the intent charged in the information; and that, if they thought it was published with that intent, I was of opinion that it was a libel. I, however, added that they were to decide whether they would adopt my opinion. In forming their opinion on the question of libel, I told the jury that they were to consider whether the paper contained a sober address to the reason of mankind, or whether it was an appeal to their passions, calculated to incite them to acts of violence and outrage. If it was of the former description, it was not a libel; if of the latter description, it was.

It must not be supposed that the statute of George III made the question of libel a question of fact. If it had, instead of removing an anomaly, it would have created one. Libel is a question of law, and the judge is the judge of the law in libel as in all other cases, the jury having the power of acting agreeably to his statement of the law or not. All that the statute does is to prevent the question from being left to the jury in the narrow way in which it was left before that time. The jury were then only to find the fact of the publication and the truth of the innuendoes; for the judges used to tell them that the intent was an inference of law, to be drawn from the paper, with which the jury had nothing to do. The legislature has said that that is not so, but that the whole case is to be left to the jury. But judges are in express terms directed to lay down the law as in other cases. In all cases the jury may find a general verdict; they do so in cases of murder and treason; but there the judge tells them what is the law, though they may find against him, unless they are satisfied with his opinion. And this is plain from the words of the statute, which, after reciting that doubts had arisen whether on the trial of a libel the jury may give their verdict on the whole matter in issue, directs that they "shall not be required or directed by the court or judge to find the defendant guilty, etc., merely on the proof of the publication by such defendant or defendants of the paper charged to be a libel, and of the sense ascribed to the same in such indictment." But the statute proceeds expressly to say that, "on every such trial, the court or judge before whom such indictment or information shall be tried shall, according to their or his discretion, give their or his opinion and directions to the jury on the matters in issue between the king and the defendant or defendants, in like manner as in other criminal cases."

That was all that was done on this occasion, and therefore I am of opinion that this objection also fails. As to the libel itself, considering it as the production of a man of large fortune, high rank, and extensive influence, where is the person that can make an observation in favour of any part of it? My opinion of the liberty of the press is that every man ought to be permitted to instruct his fellow subjects; that every man may fearlessly advance any new doctrines, provided he does so with proper respect to the religion and government of the country; that he may point out errors in the measures of public men; but he must not impute criminal conduct to them. The liberty of the press cannot be carried to this extent without violating another equally sacred right; namely, the right of character. This right can only be attacked in a court of justice, where the party attacked has a fair opportunity of defending himself. Where vituperation begins the liberty of the press ends. This maxim was acted upon by the greatest states of antiquity. In our country the liberty of the press allows us to persuade men to use their constitutional influence over their representatives to obtain in the regular parliamentary manner a redress of real or supposed grievances. But this must be done with temper and moderation; otherwise, instead of setting the government in motion for the people, the people may be set in motion against the government. In such a case as this it is fit that the public should know the grounds on which I have acted....

Reports of State Trials, New Series, I, 49, 118 f.


[1] On 30 April 1763 John Wilkes, for having published no. 45 of the North Briton (see no. 128A), was arrested on a general warrant (see the following document) signed by the secretaries of state, and was committed to the Tower. On 3 May, after certain legal preliminaries, the question of his liberation on a writ of habeas corpus came before the court of common pleas. The decision by Chief Justice Pratt (later Lord Camden) includes a clear statement of the whole case.

[2] Entick, like Wilkes, had been arrested for publishing a seditious libel on a general warrant issued by the secretaries of state. Since in a number of recent cases the legality of such general warrants had been gravely questioned, Entick brought suit for trespass against Carrington and the other royal messengers who, in making the arrest, had broken into Entick"s house and carried off a number of his books and papers. In the course of the trial before the court of common pleas, the facts of the warrant, arrest, seizure, etc., were established by a jury, which awarded the plaintiff £300 damages on condition that the court adjudged the action of the defendant to constitute trespass. As will be seen from the following excerpts, the decision, rendered by Lord Camden, Chief Justice, settled the matter of such general warrants for all time. And by virtue of this opinion, Wilkes in 1769 collected heavy damages from another royal messenger, and from the minister who had ordered the arrest.

[3] Cf. No. 128A.

[4] James Somersett, a negro slave belonging to Charles Stewart of Jamaica, was brought by his master to England. There Somersett ran away, but he was captured and put for safe-keeping on board a ship lying in the Thames. Friends of Somersett then obtained a writ of habeas corpus addressed to the captain of the vessel who, in the return to the writ, set forth the facts as above. Here follows the judgment of the court of king's bench, stated by Chief Justice Mansfield. The counsel for Somersett pointed out that the only form of slavery known to English law was villeinage, which had disappeared from judicial proceedings since 1618 (see no. 91H).

[5] This was a case brought from Grenada to the court of common pleas. Hall, a tax-collector in the island, had taken a certain amount from Campbell as duty on the export of sugar according to letters patent of the king dated 20 July 1764. Campbell brought suit to recover the money on the ground that the tax was illegal, being imposed by royal prerogative after the king had granted legislative authority within the island to a local assembly. The pertinent facts were established by special verdict of a jury. The judgment of the court on the points of law was rendered by Chief Justice Mansfield. See nos. 91C and 124B.

[6] In 1783 the Reverend William Davies Shipley, dean of St. Asaph, caused to be printed a dialogue written by his brother-in-law advocating parliamentary reform. Being prosecuted before the assizes at Shrewsbury for publishing a seditious libel, he was found guilty of publishing; "but whether a libel or not the jury do not find." Then ensued a wrangle over the propriety of the charge given to the jury and their verdict, and eventually the question came for review to the court of king's bench. Chief Justice Mansfield, giving the judgment of the court, upheld the verdict, as may be seen from the following excerpts, and crown attorneys let the prosecution drop. The case is particularly significant in relation to the bill which Fox was then advocating in parliament (see nos. 126 1, 124E).

[7] Jurors do not answer the question of law; judges do not answer the question of fact.

[8] Grant, while serving as recruiting serjeant in London, was tried by court martial at Chatham and convicted of having persuaded two soldiers to desert the Coldstream Guards and enlist in the forces of the East India Company. Thereupon Grant brought suit in the court of common pleas against the officer who had presided over the court martial, alleging that the latter had in various ways exceeded its lawful powers, especially since Grant was not actually an enlisted soldier. In the judgment, delivered by Chief Justice Loughborough, the court of common pleas upheld the action of the court martial. The chief justice, after holding that Grant was a soldier, proceeded, in the following paragraphs, to explain the whole subject of martial law in England.

[9] No. 120B.

[10] Wolfe Tone, an Irish agitator with a commission in the French army, was captured by the British. On Saturday, 10 November 1798, he was tried by court martial in Dublin Barracks, found guilty of high treason, and sentenced to die on the next Monday. On that day, however, the case was brought before the court of king's bench in Ireland through an affidavit of Tone's father. The subsequent proceedings are brought out in the accompanying record.

[11] The fact of the prisoner's attempted suicide was sworn to by a surgeon from the barracks. Tone escaped execution, but died of his wound one week later.

[12] Wright, a schoolteacher in the county of Tipperary, brought suit before the assizes of Clonmell to recover damages from Fitzgerald, late sheriff of the county, by whom he charged he had been unjustly imprisoned and flogged. The defendant alleged that his treatment of Wright was justified by the sheriff's duty of putting down rebellion. Here follows Justice Chamberlain's charge to the jury, which found for the plaintiff and awarded him damages of £500.

[13] Sir Francis Burdett, for an address to the electors of Westminster on the so-called Massacre of Peterloo, was charged at the Leicester assizes with composing, writing, and publishing a seditious libel. Acting under a charge from Justice Best, the jury found him guilty; whereupon an appeal was made to the court of king's bench, of which Justice Best was a member. After hearing lengthy argument on both sides, that court refused to order a new trial, thus upholding the decisions of both judge and jury at Leicester. The following excerpts are from, first, Justice Best's charge to the Leicester jury; secondly, Justice Best's restatement of his opinion in the court of king's bench.

[14] See no. 126 I.


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