lishing the paper recited in the information. If evil intention be an object of the jury's enquiry; if the jury may determine the criminality of the paper; in either event Mr. Woodfall has been acquitted. Accordingly the judgment of the King's Bench goes decifively to thefe points. I fhall transcribe the words of the opinion: "If they (the jury) meant to say that they did not find it a libel, or did not find the epithets, or did not find any malicious intent, it would not affect the verdict, because none of these things were to be found either way." The context plainly fhews, that upon all these applications of the excluding word only, the verdict would have been deemed a conviction: because the court afterwards declare the verdict void for uncertainty, as, "It is poffible fome of them (the jury) might mean not to find the whole fenfe and explanation put upon the paper by the innuendoes in the information."

Here then is a folemn declaration that a jury, in a charge of libel, have no right to determine the innocence or criminality of the paper; that the jury, by a general verdict of guilty find the fact of publication, and verbal fupply of innuendoes only; that the jury cannot decide upon the criminal or innocent intention of the publisher; and that the direction of a judge leaving any of thefe matters to a jury would be illegal.

It is not difficult to trace, to its fourfe, this contest of jurifdiction between the jury and the court. It arifes from the different nature of that evidence which may be applied to prove criminal intention in profecutions for different offences. Where the crime is theft, for inftance, there can be no room for any variance of opinion. The intention to fteal (which is fignified by the word feloniously in the indictment) muft always be collected from circumftances accompanying the act; circumftances which can only be known to the jury; of which the court cannot receive any evidence. How happens it that in a charge of libelling, malicious, fcandalous, and feditious, fhould have no meaning? That in this crime alone fuch epithets are of no importance? mere formalities? inferences of law from the fimple act of publication, an act in itself extremely innocent? Whence have arifen these pretenfions of judges? The solution will not be difficult. Criminal intention in the publication of a libel may be proved by two forts of evidence; one internal, ari

Our Author has omitted here the word exprefs. With regard to the opinion of the court of King's Bench, he thinks the diftinction between express or implied malicious intent, is without foundation; becaufe, fays he, by the word only, the verdict had excluded malicious intent; and the only doubt as to this part muit be, whether the jury could decide upon the intention of a publisher.

fing from the nature of the paper; the other external, from the circumftances accompanying the act of publication. The first (being ftated in the record) lies open to the observation of court and jury; the other fpecies of evidence can be known to the jury alone. The court of King's Bench, adverting only to the first fpecies, and defirous of drawing the whole judicature to themselves, declared, that an exprefs exclufion of criminal intention by the verdict of a jury would avail nothing; but that fuch verdict (if the act of publication, together with the verbal fupply of innuendoes was found) would operate as a conviction. Should this be the law of England, a very ridiculous confequence would follow! A man might have the cleareft proof of his innocence without a poffibility of producing it! To the jury he could not, becaufe they are not to judge of intention nay, an exprefs negation of criminal defign by them would be void, and of no effect. Before the court at Weftminfter it cannot be produced, becaufe fuch evidence will contradict the general verdict guilty.

A man carrying a libel to a magiftrate, moft certainly is a publisher. So a ftudent taking notes in a court of law, and communicating thefe notes to another. So likewife a man tranfcribing an information, by the direction of the Attorneygeneral, and collating fuch tranfcript with the foul copy by the affiftance of another perfon. All these are publishers, but not criminal. Yet if a jury cannot judge of intention, the evidence of thefe facts cannot be received by the court, because it will contradict the verdict.

• Mr. Almon moft certainly was a publisher. He kept a fhop; fold pamphlets; and gave a general authority to his fervants for that purpose. He was therefore bound by the acts of fuch fervants, and liable, in a civil fuit, to every demand founded on their acts. Yet was he exempt from profecution for a crime, because criminal intention can be imputed to the fervant alone, who, without his mafter's knowledge, fold the identi-. cal paper. Lord Mansfield felt this truth when he faid (upon the motion for a new trial) that had this appeared in evidence as opened by the counfel, he fhould have directed the jury to acquit the defendant. The error of the Attorney-general was likewife extremely natural, who thought this evidence could not be received after conviction, as impeaching the propriety of the verdict. But neither one nor the other feems perfectly confiftent with the opinion of the court, that the jury can only determine the fact of publication. Mr. Almon could have been acquitted upon no other ground than a defect of criminal intention. Neither could the evidence of this defect contradict the verdict, if the jury had determined the fimple fact of publication alone.

• I cannot

I cannot difmifs Mr. Almon's cafe without obferving another most dangerous encroachment upon the office of a jury. It was urged at the bar, and approved by the court, "That Mr. Almon's actual affent to the publication was neceffary to fix any crime upon him, and that a fale by a fervant was only evidence of that affent." The refufal of a new trial was founded upon the propriety of a judge's direction, who laid down this pofition, "That the fale by the fervant was primâ facie evidence of a fale by the mafter, and became conclusive, if not contradicted by other evidence." This pofition cannot be law, because the peculiar province of a jury is to judge of the weight and import of evidence, which, by fuch a determination, would be wrefted from them. I have read of legal decifions refpecting the competence of evidence, that is, whether it be admiffible and may be laid before the jury: but this opinion of the judges prefcribes the effect of evidence, and compels the jury (whether convinced or not) upon their oaths to declare that the mafter did affent to the publication. I am not much furprised at the uneafinefs of Mr. Mackworth, or that he did not* immediately understand this new rule of law.

The conftant practice of the court of King's Bench to admit affidavits to be read, after conviction, may, in fome fort, have tended to confound the refpective duties of court and jury. Indeed, were we abfolutely certain of a conftant fucceffion of upright and honeft judges, little mischief might enfue from such confufion. A nominal punishment, where the party is innocent, might be nearly the fame with no punishment at all. Unfortunately this argument would have equal force, if urged for the total abolition of our government, and an implicit fubmiffion to the will of one man. To be ferious; let us turn from misdemeanors, where the punishment is uncertain, to other crimes, and the abfurdity of this doctrine will appear in its true colours. Let the judgment of the court in Mr. Woodfall's cafe be the law of England, and I will undertake to hang, as a traitor, a very good friend to the government, for the very act by which he meant to ferve his King. Suppofe the enemy landed, and a manifefto published exciting the people to join the invaders a good friend of government fends a messenger with this manifefto to the Secretary of State. He is indicted, for that he traiterously, and with intent to affift the King's enemies, did publish the paper, &c. The jury are told that they have nothing to do with intention; that traiterously, &c. are inferences of law. The publication is proved; there are no blanks in the paper to fupply. The man is therefore convicted, and must be hanged.'

*The word not is omitted in the pamphlet, we fuppofe, by an érror of the preís.

There

There is another paffage in this excellent pamphlet, which we must beg leave to lay before our Readers.

The revolution, fays our Author, established those prineiples of refiftance to the civil magiftrate, which, from the obftinate oppofition of Tories, were but obfcurely expressed in the famous vote of the Convention Parliament. It was, however, determined, that there are occafions in which refiftance may be lawful; in which subjects may depofe their King. They must therefore have a right to examine the conduct of their King, for on his conduct muft depend the measure of their obedience. A forfeiture may be incurred, but the nation alone can judge when the original contract between King and People is broken; when the fundamental laws are violated; when an attempt is made to fubvert the conftitution." Under a government established upon thefe principles, every man has a right to watch the administration of justice; to fift narrowly all acts of the King or his minifters ; to point out the corruption even of parliaments; and to fpread an alarm among the people, whenever a dangerous attack is either made or meditated againft the public liberty. This right can be limited by no certain rules, but must ever be governed by the particular occafion. There are times of danger when any thing which tends to difunite may be highly criminal. There are times, when even invectives may deserve the praise of moderation. No fcientific knowledge, no acquaintance with former decifions, can enable the book-read lawyer to affirm this publication is criminal, that publication is innocent. To do this with precifion, or justice to the party accused, we must enter into common life; we muft attend to the politics of the day; we must imbibe the fentiments of the people, and participate their every complaint." Juries, taken by lot from among the people, are peculiarly the proper judges in cafes of libel: and if in this, as in all other imputations of a criminal nature, our ancestors have enjoyed that noble privilege, a trial by their peers, hall we now relinquifh our glorious birthright under a King, whofe family was admitted to the crown for the fole purpose of defending, protecting, and improving our laws and conftitution ?'

The prefent performance must not be claffed with those factious and violent publications which are every day iffuing from the prefs. It is full of candour, information, and good fenfe; and we have not the least doubt but that its Author is really what he subscribes himself, " A Friend to the Laws and Government of his Country."

.

* In the pamphlet it is from among people.'

REV. Feb. 1771.

K

ART.

ART. VI. The univerfal Botanist and Nurseryman: Containing Defcriptions of the Species and Varieties of all the Trees, Shrubs, Herbs, Flowers, and Fruits, Natives and Exotics, at prefent cultivated in the European Nurferies, Greenhouses and Stoves, or defcribed by modern Botanifis; arranged according to the Linnæan Syftem, with their Names in English. To which are added, a copious Botanical Gloffary, feveral ufeful Catalogues and Indexes. Illuftrated with elegant Engravings. In Four Vols. 8vo. By Richard Wefton, Efq; Vol. I. Price 5 s. 3 d. in Boards. Bell. 1770.

T is with great satisfaction that we fee the useful and pleafing fcience of Botany fo affiduously cultivated as it hath been for fome years paft. The general attention paid to a study fo innocent as well as delightful, is one proof, among others, that the age, however depraved in fome refpects it is faid to be, is not fo in all; for, in many branches of knowledge, in many exercises of virtue, we are fully perfuaded, our own times and manners are in a happy ftate of improvement. Let half-thinking divines, or railing, gloomy bigots, who delight in abufing, and vilifying, and damning mankind, difpute this truth; but, for us, we really apprehend, that not to acknowledge it, would be the baseft ingratitude to the all-wife and benevolent administration of that adorable BEING by whom Kings reign and Princes decree juftice: by whom all things are upheld in the most beautiful and perfect order: who, as GOD OF ALL, balances the univerfe with equal and unerring hand, and maintains it in that uniform courfe of rectitude which he alone could give it, and from which neither the moral nor the material world can ever depart without his permiffion and appoint

ment.

Botany is, indeed, a ftudy of fuch general importance to mankind, that it would be no eafy talk to draw the line that could limit the bounds of its utility. The very fenfible Author of the performance now before us hath enumerated some particulars of this kind; but to fpecify all, would be a vain attempt. What he has obferved, however, in his introduction, is juft, and pertinent. He first confiders its usefulness in a religious light. To be employed in the conftant contemplation, and of course in the conftant admiration of the wifdom of the DEITY, to the harmonizing of the paffions, and the acquifition of useful knowledge, is certainly one of the most commendable pursuits in which a rational mind can be engaged."

Hence, he remarks, it is, that in all ages, the greateft and beft of men have found it, in folitude, their most effectual relief against the difguft they had conceived at the disorders of fociety; when, like Cincinnatus, exchanging the fword for

the