One of the greatest evils that attends these ex officio prosecutions is the means it gives the Attorney-General to harrass the parties without ever bringing them to trial. He

may commence as many prosecutions as he pleases, and abandon them afterwards; he may do it even without the intention of bringing the parties to trial, merely to terrify them, and put them to expence. When one hears of so many prosecutions having been commenced, and so few brought to issue, what are we to think? Either that Sir Vicary has undertaken them with an unpardonable levity, or that they have been had recourse to for the purpose of influence. In either case there is a serious injury. If the freedom of the press be an object of great public importance, then ought it not to be exposed to the arbitrary controul of an individual, who may hold out his prosecutions in terrorem, or commence them wantonly, only to abandom them capriciously, without making any recompence whatever to the parties, for it is well known that the king pays no costs.

The following part of Lord Folke stone's speech demands the most serious consideration. "When the "defendant is brought up for trial, "it has been ruled that he shall not allege the truth in justification of "the supposed offence: that, Sir, is "the modern law. In late years it "has been determined by the judges "that truth is a libel; and I am willing to bear my testimony that "the doctrine has been scrupulously "acted upon. And yet I could cite

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VOL. IX.

period the same principle prevail"ed. And in the case of the seven bishops, Mr. Justice Powel stated it as his opinion, that in order to "constitute a libel, falsehood was necessary. The dictum of Lord "Chief Justice Holt was of a similar "nature. And therefore I must ob"serve, that, although it has lately grown into a principle, that false"hood is not necessary to constitute

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a libel, yet according to the enact"ments of former days the case was "different."

It seems material, for the satisfaction of the reader, to point out how, and by what means, it has "grown into a principle that falsehood is NOT necessary to constitute a libel" this will be done in the course of these remarks; in order that the reader may comprehend how a system founded on the most perfect principles of justice, has been turned upside down, and come to be at variance, as his lordship observes, with common sense; he might indeed have said, with religion likewise.

The crime punished by our ancestors under the denomination of libel was the malicious propagation of false stories to the injury of another person's character, and consequently it was a complete justification of the

Z

supposed libel, to prove that what was published was true, as indeed it Is to this day between subject and subject; but how it comes to be otherwise in cases where the crown is a party will hereafter be shewn, I trust, to the reader's satisfaction. This being the fact, the very essence of the crime consisted in its being an offence against truth; and it was said to be done at the instigation of the devil, words still retained in the \ indictment, because the devil is believed to be the father of lies. That truth should be a libel, committed at the instigation of the devil, is contrary to the whole tenor of scripture authority; for it is not the devil that inspires men with a love of truth, but a Being of a very different description. Sanctify them through thy truth, thy word is truth, John xvii. 17. And the same divine authority commands us to pay regard to truth in the administration of public justice: Speak ye every man the truth to his neighbour, execute the judgments of truth and peace in your gates, Zech. viii. 16. The most terrible judgments are denounced against those who make lies their refuge, because they have made a covenant with death, and with hell are at agreement, Isaiah xxviii. 15. There is even a positive injunction to put liars to death thou shalt destroy them that speak leasing, Psalm 5. v. 6. From all which it appears most evident that falsehood is a crime, but that truth never can be a crime, or be properly punished as such in a christian court of justice; from whence then proceeds this antichristian doctrine of punishing truth as a libel ?

Lord Folkstone we see tells us, that under the old law of libel, falsehood constituted the essence of the crime his lordship is quite correct: I have examined this point with care, and have indeed long endea voured to call the public attention to it. There are, I believe, ather statutes besides those mentioned in

the above quotation, but they all go upon the same ground, that of false representation. But whoever will read the trial of the seven bishops will there see the two doctrines of libel; the new and the old; the former taking its origin and springing out of that case, the latter maintained by the constitutional party against the King, and both pitted together. It is very well known that the King's declaration, which the bishops refused to read, contained a dispensing power." We do likewise declare it is our royal will and pleasure that from henceforth the execution of all, and all manner of penal laws in matters ecclesiastical, &c. be immediately suspended."-Upon this ground it was contended by the counsel for the bishops, that as this declaration suspended the law, and that being a power not in the King, the petition against it could not be a libel; and to prove that such a power was not in the King, they brought the statute 15 Richard II. from the Tower rolls which gave the King, till a certain time, power to dispense with the statute of provisions. Upon which Sir Robert Wright, the chief justice said, "I must not suffer this, "they intend to dispute the King's

power of suspending the laws." Mr. Justice Powel said, "it was necessary they should, for if the "King (said he) hath no such power, as clearly he hath not in my judgment, the natural consequence will "be that this petition is no diminu"tion of his power, and therefore

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not seditious." Upon which the crown lawyers maintained that" whe"ther the fact be true or not, did not "make a thing more or less a libel, " and punishable; that the only point

was, whether it was scandalous "and disturbing the peace."- In summing up, the chief justice said, that " any thing that shall disturb "the government, or make a mis

chief, or stir among the people is certainly within the case of libellis

famosis." Mr. Justice Powel said, Truly I cannot see for my part any thing of sedition, or any other "crime fixed upon these reverend "fathers, my lords the bishops, for gentlemen to make it a libel, it "must be false, it must be malicious, "and it must tend to sedition." Mr. Justice Holloway was upon the same side as Mr. Justice Powel: the last judge was Allybone, a papist, and a creature of the court as well as Wright: he said, "No man can take upon him to write against the ac"tual exercise of the government, "unless he have leave of the govern66 ment, but he makes a libel be "what he writes true or false."*

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It appears clearly therefore from the above words quoted from the original edition of the trial, printed for Basset and Fox, London 1689, that this doctrine, that truth may be a libel, was set up for the very first time, by those base panders of arbitrary power, Wright and Allybone, in support of those very principles which brought about the Revolution of 1688, and certainly nothing could be more applicable, or more consistent, than that this base principle directly hostile to the spirit of christianity, and which revolts the feelings of every moral man, and appears indeed to be derived from Antichrist himself, that this principle I say, should have been made use of by the popish James to remove those obstacles which the law and the constitution of the land interposed to prevent the subversion of our civil and religious rights, all which he would have trampled under foot, to set up his own idolatry, the true worship of Antichrist, from whom, and whom alone this doctrine of truth being a libel is most unquestionably derived. Had there been four honest judges present instead of two only, it is clear that the truth,

*This last speech Oldmixon says, was considered by the jury as ridiculous.

that is the proof of the king's incapacity to dispense with the law, would have been admitted as a full justification by the judges unanimously, according to the rules then received, and that it did determine the verdict of the jury in favour of the bishops is certain; but as there were only two judges who were independent, and two others of a different description, for Rapin acknowledges that Wright was a creaof the court, and Allybone was a papist, they broached amongst them this new doctrine, that a publication may be libellous, though true, in order to save the King's dispensing power from being questioned: but this doctrine was looked upon as sheer nonsense by every body. Oldmixon copying after Bishop Burnet says, "it

was as good nonsense as could be "expected from the jargon of chicane,"

No doubt it was thought by all the tools of the court, judges as well as others, the best quirk that could be adopted for maintaining a rotten cause; and though it seems to have been treated with ridicule at the time, and to have been rejected entirely in the next reign by Chief Justice Holt, yet such is the natural tendency of mankind to corruption, that it exists still. It has not only survived that arbitrary power which it was created to prop and support, but has found favour among the enemies of that superstitious religion. which bears as much hostility to truth as it doth itself. Merciful Heaven! That any sect of christians whatever should ever become the enemies of truth. and TRUTH forsake thee; bind them about thy neck, write them upon the table of thine heart: this is the pathetic and beautiful admonition of scripture. Nor have the heathens even teen behind hand in their veneration of truth. One of their maxims I cannot help repeating." He who does not uphold the cause of truth,

Let not mercy

is a betrayer of the truth;-proditor est veritatis." Now suppose one of these virtuous heathens to be present in a court of justice where he beheld truth brought to the bar, arraigned, condemned, and punished for a libel, what would he say? Would he not exclaim, Proditor est veritatis? British justice! yes, indeed, British justice! To no man will I yield, Mr. Editor, in my veneration for British justice; I should be sorry, heartily sorry, if I were not conscious of having a much greater regard for it than many a man who has sat upon the bench, and whose names I could mention. But my love of British justice is genuine and constitutional, and therefore will not brook those corruptions and legal abusions which, from the earliest periods of our history, have been continually at war with our constitution. I have said from the earliest periods inconsiderately, yet will I not recall the words. How many abusions of law, some of them too against Magna Charta, does not Andrew Home reckon up in a book written in the reign of Edward the First? And who is there so ignorant of these matters, as not to know, that this famous charter, the compendium of British liberty, was not in much higher estimation, and endued with a much greater degree of legal vigour, in the reign of Edward I. than it is at present? We know well, that there is nothing in this world that may not be contaminated, if ever any thing promised to subsist in sempiternal purity and perfection, it was England's charter, fortified not only with pains and penalties in this world, but with curses and perjuries entailed upon its enemies in the next; and yet, alas! Magna Charta hath not been able to stand against corruption! Magna Charta hath been impaired, but I trust not obliterated, by the abusion and the practice of Westminster Hall.

I will state the case in plain

Let

terms, and I pray the reader to give it his most serious attention, for a case of greater moment cannot be, A man, enjoying all the rights of our free constitution, is put to the har, and charged with a criminal offence; he pleads not guilty, and offers the truth in justification; but is told that the truth cannot be received as a justification in this case. He is told this by the judge, not by the jury, and the ground on which he is told it is, that the practice of the courts hath of late years disallowed such a justification.. But the practice of the courts formerly did not disallow it. For a thousand years and upwards have Englishmen enjoyed the privilege of this justifi cation. Ever since the commencement of trials by jury, down to the period of the Revolution of 1688, and even since that period, during the time of Chief Justice Holt, have they enjoyed this privilege. this be well noted, as likewise the privilege itself: how the withholding it may influence the fate of this man's trial, and innovate upon the rights, and restrict the freedom of inquiry of jurymen in general! Let it be well noted likewise, that this man enjoys all the franchises of an Englishman, of which it was out of the power of the judge to deprive him; for Magna Charta says, no freeman shall be disseized of his liberties and free customs &c. nay, he is, at that very instant, enjoying the most important of these franchises, that of trial by jury. He has put himself upon his country, and no man can put him off it. He is in the guard of twelve good and true men, who have sworn to make a true deliverance, and no man can take him out of that guard, or prevent that true deliverance. They alone are charged with him, and must decide upon his fate; and if they do not decide according to their consciences, they are twelve perjured men. Is it, then, no impedi