The faid bailiff further fets forth, that on the faid final close of the poll, a fcrutiny was duly demanded in behalf of fir Cecil Wray, which fcrutiny the faid bailiff has granted, for the purpose of investigating the legality of the votes more accurately than could be done on the faid poll; and the faid fcrutiny fo granted is now pending and undetermined; and by reafon of the mifes, the faid bailiff humbly conceives he cannot make any other return to the faid precept than as here pre Thomas Corbett, bailiff of the liberty of the dean and chapter of the collegiate church of St. Peter, the collegiate church of St. Peter, at Westminster, in the county of Middlesex, doth hereby certify unto the fheriff of the faid county of Middlesex, that by virtue of a certain precept, dated the 26th day of March laft, and on the fame day delivered to him the faid bailiff, by the said sheriff, for the election of two citizens to serve in the enfuing parliament for the city of Westminfter, and by virtue of the writ there-in-before is contained, until the faid in recited, (proclamation of the premifes in the faid precept firft mentioned, the day and place, as in the faid precept is directed, firft being made) he the faid bailiff did proceed to the election of two citizens to ferve in the enfuing parliament for the faid city of Westminfter, on the first day of April now laft paft, on which day appeared and were put in nomination the three candidates hereinafter menticned; and a poll being demanded, he the faid bailiff did forthwith proceed to take the faid poll, and continued to take the fame, day by day, during fix hours each day, viz. from nine in the forenoon to three in the afternoon, until the day fcrutiny thall be determined, which THOMAS CORBETT, Bailiff. Copy of the Protefts against granting To Thomas Corbett, Efq; High Before I go upon the business of this this ferutiny, I do hereby folemnly protest against its legality, and referve to myself the right of impeaching it hereafter, either in any court of judicature, or before a committee of the houfe of commons under Mr Grenville's act; and I hereby alfo declare, that I referve to myself the right of fuing the high bailiff for all the expences, or the double of them, which are drawn upon me by this illegal act, in the appointment of this fcrutiny. C. J. Fox. Veftry room, St. Anne's, June 11, 1784. on the Profecution of William Jones, Gentleman, against the Reverend William Davies Shipley, Dean of St. Afaph, for a Libe', at the Affizes at Shrewfby, Aug. 6, 1784, before the Honourable Mr. Juftice Buller. N Friday, the 6th of Auguft, 1784, the trial came on, at the aflize at Shrewsbury, before the hon. Mr. Juftice Buller. The indictment was laid for the publishing a libel, entitled, The Principles of Government, in a Dialogue between a Gentleman and a Farmer. This dialogue was written by Wil To Thomas Corbett, efq. high bai. liam Jones, efq. now fir William liff of Weftminfter. We whofe names are fubfcribed, electors of Wettmintter, do proteft against your commencing or proceeding on any fcrutiny of the poll on the late election for reprefentatives in parliament for this city; and do referve to ourfelves the right and power to object to, and impeach all your proceedings therein, as we fhall be advifed. Given under our hands, on be- JONATHAN PAGE, CHARLES PROBART, THOMAS FROOKS, Jones, knight, and one of the judges of the fupreme court of judicature at Fort William in Bengal. The Jury. John Nicholls, of Chelmarth, efq. William Pemberton, of Walford, efq. Charles Walcott, of Bitterley, efq. Richard Jones, of Rifton, efq. Counsel for the Crown. Solicitor. Mr. William Jones, of Ruthin. Counfel Counsel for the Defendant. The hon. Thomas Erikine, Mr. Corbett, The hon. Thomas Brodrick, Mr. Abbott. Solicitor. Mr. Lewis Hughes, of St. Afaph. After bearing Counsel on both fides, and after having flated the evidence, Mr. Juftice Buller addressed the jury nearly as follows. "Now, gentlemen, this is the whole of the evidence that has been given on the one fide and the other. As for the feveral witnelles who have been called to give Mr. Shipley the character of a quiet and peaceable man, not disposed to stir up fedition, that cannot govern the prefent queftion; for the queftion for you to decide is, whether he is or is not guilty of publishing this pamphlet ? "You have heard a great deal faid, which really does not belong to the cafe, and a part of it has embarraffed me a good deal in what manner to treat it. I cannot fubfcribe to a great deal that I have heard from the defendant's counfel; but I do readily admit the truth of that propofition which he ftated, from Mr. Locke, that "wherever the lawends, tyranny begins." The queftion then is, what is the law, as applicable to this business? and to arrow it ftill more, what is the law in thi ftage of the business?--You have been pretled very much by the counfel, and to have I alfo, to give an opinion upon the queftion, whether this pamphlet is or is not a libel? Gentlemen, it is my happinefs that I find the law fo well and fo fully fettled, that it is impoffible for any man who means well to doubt about it; and the counsel for the defendant was fo confcious what the law was, that he himself stated what he knew mufi be the answer which he would receive from me, that is, that the matter appears upon the record and as fuch, it is not for me, a fingle judge, fitting here at Nifi Prius, to fay whether it is or is not a libel. Thofe who adopt the contrary doctrine, forget a little to what lengths it would go; for, if that were to be allowed, the obvious confequence would be what was ftated by the counfel in reply, name ly, that you deprive the fubject of that which is one of his dearest birthrights: you deprive him of his appeal-you deprive him of his writ of error; for if I was to give an opinion here that it was not a libel, and you adopted that, the matter is clofed for ever. The law acts equally and juftly, as the pamphlet ftates-it is equal between the profecutor and the defendant; and whatever appears upon the record is not for our decifion here, but may be the fubject of future confideration in the court out of which the record comes; and afterwards, if either party thinks fit, they have a right to carry it to the dernier refort, the houfe of lords. The law is the fame in both criminal and civil cafes, and there is not a gentleman round this table who does not know that is the conftant and uniform answer which is given in fuch cases. "You have been addreffed by the quotation of a great many cases upon libels. It feems to me, that the queftion is fo well fettled, that gentlemen fhould not agitate it again; or at least, when they do agitate it, it fhould be done by stating fairly and fully what has patled on all fides, not by ftating a paffage or two from a particular cafe, that may be twifted to the purpose that they want want it to answer. And how this doctrine ever comes to be now ferioufly contended for, is a matter of fome aftonishment to me; for I do not know any one question in the law which is more thoroughly eftablished than that is. I know it is not the language of a particular fet or party of men, because the very laft cafe that has ever arifen upon a libel, was conducted by a very refpectable and a very honourable man*, who is as warm a partisan as the counfel for the defendant, and, I believe, of what is called the fame party. But he ftated the cafe in few words, which I certainly adopted afterwards, and which, I believe, no man ever doubted about the propriety of. That cafe arofe, not three weeks ago, at Guildhall, upon a question on a libel; and in itating the plaintiff's cafe, he told the jury that there could be but three questions. "The Firft is, Whether the defendant is guilty of publishing the libel? "The Second, Whether the innuendos or the averments made upon the record are true? "The Third, which is a queftion of law, Whether it is, or is not a libel?" Therefore, faid he, the two first are the only queftions you have to confider: and this, added he, very rightly, is clear and undoubted law. It has been fo held for confiderably more than a century paft. It is admitted by the counfel, that upon great confideration, it has been fo held in one of the cafes he mentioned, by a noble lord who has prefided for many years, with very diftinguifhed honour, in the first court of criminal juftice in this country; and it is worthy of obser- * Mr. Lee. -The The then chief juftice ftated the three queftions to the jury in the fame way I mentioned. He faid, The firft is the fact of publication; fecondly, Whether the averments in the information are true or not; and thirdly, Whether it is a libel. He fays there are but two of these queftions for your confideration ;the third is merely a queftion of law, with which you, the jury, have nothing to do, as has now of late been thought by fome people, who ought to know better; but, fays he, we must always take care to diftinguish between matters of law and matters of fact, and they are not to be confounded. "With such a train of authorities, it is really extraordinary to hear the matter now infifted on as a queftion which admits a doubt; and if we go farther back, it will be found ftill clearer: for about the time of the revolution. authorities will be found which go directly to the point. In one of them, which arofe within a year or two from the time of the cafe of the Seven Bifhops, which the counfel alluded to, a defendant, in an information for a libel, which was tried at bar, faid to the court," As the information ftates this to be a fcandalous and feditious libel, I defire it may be left to the jury to fay whether it is a fcandalous and feditious libel, or not." The answer then given by the court was, "That is matter of law; the jury are to decide upon the fact; and if they find you guilty of the fact, the court will afterwards confider whether it is or is not a libel."-If one goes fill arther Back, we find it fettled as a principle which admits of no difpute, and laid down fo early as the reign of queen Elizabeth as a maxim, that "ad quæftionem facti refpondent juratores, ad quæftionem juris refpondent judices." And in the cafe that the counfel has thought fit to allude to, under the name of Buthel's cafe, the fame maxim is recognized by the court negatively, viz. ad quæftionem facti non refpondent judices, ad quæftionem legis non refpondent juratores z for, faid the court unanimoufly, if if it be afked of the jury what the law is, they cannot fay; if it be afked of the court what the fact is, they cannot fay. "Now, fo it ftands as to legal hiftory upon the bufinefs. Suppole there were no authority at all, can any thing be a ftronger proof of the impropriety of what is contended for by the counfel for the defendant, than what I have had recourse to? They have addreffed you-not as is very ufual to address a jury, and which you must know yourselves, if you have often ferved upon themthey have addretfed you upon a queftion of law, on which they have quoted cafes for a century back. Now, are you poffeffed of those cafes in your own minds? are you apprized of the diftinctions on which hole determinations are founded? Is it not a little extraordinary to require of a jury, that they should carry all the legal determinations in their minds? If one looks a little farther into the conftitution, it seems to me, that without recourfe to authorities, it cannot admit a doubt. What is the mode of adminiftering juftice in this country --1he judges are appointed to decide the law, the juries to decide the tact.-How?--Both under the folemn obligation of an oath. The judges are fworn to adminifter the law faithfully and truly. The jury are not to worn, but to give a true verdict according to the evidence. |