their servants from prosecutions for debt, under the paltry plea of privilege; that they had, in the affairs now alluded to, acted extremely right; he avowed their having a full and legal power to expel a member convicted of criminalities; they were very just, he observed, in declaring that such a man was not a fit person to sit among them. He quoted a similar case in their own House concerning the earl of Macclesfield, and observed, that his own opinion that lenient measures were always wrong, was, in the present case, experimentally proved. Had the House of Commons committed the sheriffs for making the return of an incapable person, they would have acted properly; their illtimed candour was now called fear; he was therefore for vigorous measures; he nevertheless approved greatly of the vote of the House, and he doubted not but future historians would sing their praise: in the House of Commons there were many respectable persons, and many rich citizens, notwithstanding the monied men had, in this House, been lately called "muckworms." [Here his lordship was interrupted by the earl of Chatham, who declared, "That if he alluded to any word or expression he might have dropped in the House last week, he meant by muckworms the stock-jobbers, and not the monied men in the city." Lord Denbigh grew warm upon the interruption, and complained of it as disorderly, observing, that he did not, nor would he, say who he alluded to. The duke of Grafton also declared the calling lord Denbigh to order was unfair: lord Chatham said, that as an old friend he only meant to set lord Denbigh right after a little time lord Denbigh went on, and when he had said all he meant to advance, his lordship seconded the motion for adjournment.] : The Earl of Chatham then desired to read an amendment of his motion, which he did as soon as he had done so, lord Weymouth rose and said, that after a motion to adjourn, according to the rules and orders of that House, the amendment could not be agitated; but the question for the adjournment should be immediately put. The Duke of Richmond said, that he thought when a question of such consequence as the motion made this day was, the House should not be so particularly nice as to their orders; it was needless to adjourn merely to stop a motion that would probably be made the next day they met: his grace observed, that the speakers on the other side, whenever this affair was brought before the House, endeavoured to put it off by adjourning; that it had never been fairly or fully gone into; and that in the interval, which the Spanish ambassador chose now to give us, it was the most proper time to take the affair in hand, and convince the people, who thought themselves greatly aggrieved, that they were not deserted by every branch of the legislature; his grace observed, that the House of Commons had no legal power to incapacitate any man; that the only instance of any thing like it in their own House produced this day was that of the earl of Macclesfield, who actually was not expelled; this, he observed, was the strangest method of quoting cases in point that ever he knew. His grace, throughout his speech, was extremely powerful in his arguments, which were very weighty and striking, though delivered with the most unaffected coolness and candour. When he had finished, the House called for the question to adjourn, which being put, they divided; 52 for the adjournment, 20 against it. Debate in the Lords on the Conduct of the Court of King's-Bench in matters of Libel.*] December 10. A warm debate having happened in the House of Commons upon a motion made by Mr. Serjeant Glynn, for an enquiry into the Administration of Criminal Justice, on the 6th of December, lord Mansfield the day following, desired the House of Lords might be summoned on this day, he having something to communicate to their lordships. The House was accordingly summoned, and great were the expectations of every body. Nothing less than the proposed enquiry, which the ministry had, so unfriendly to his lordship, stified in the House of Commons, was now conceived to be the object of his lordship's wishes, in the House of Lords. On the contrary, when Monday came, and the supreme court of judicature of this country was big, and filled with great expectation-what did he do? He informed their lordships that he had left a Paper with the Clerk of the House; that the paper contained the Judgment of the Court of King's-bench, in the case of the King against Woodfall; and that their *From the London Museum. lordships might read it, and take copies of it, if they pleased.* The Earl of Chatham observed, that the verdict of the jury in that case was guilty of printing and publishing only; (that if *The following is a Copy of Lord Mansfield's Paper left with the Clerk of the House of Lords: COPY of the unanimous Opinion of the Court of King's Bench, in the Case of the King against Woodfall, delivered and read by the Lord Chief Justice on the 20th of November 1770. This comes before the Court upon two rules. The first obtained by the defendant to stay and entering up judgment on the verdict given in this cause. The second obtained by the Attorney General, that the verdict may be entered according to the legal import of the finding of the jury. The last rule must, for the nature of it, be first discussed, because the ground of argument upon the other cannot be settled till this is disposed of. Upon this rule it is necessary to report the trial. This prosecution is an information against the defendant, for printing and publishing a libel in the Public Advertiser, signed Junius. The tenor of which is set out with proper averments as to the meaning of the libel, the subject matter, and the persons concerning which and of whom it speaks, with inuendoes filling up all the blanks and the usual epithets. In support of the prosecution, they proved by Nathaniel Crowder, that he bought the paper produced, and twelve more, from Coldfield, the defendant's publisher, in the defendant's publishing-room, the corner of Ivy-lane. That he goes often there, bas occasionally seen the printing-room, and has had papers in the printing-room. They read the paper produced, and the tenor agreed with the information. credited, amounted to proof of printing and There was no doubt but that the evidence, if publishing by the defendant. There may be cases where the fact proved as a publication, may be justified or excused, as lawful or ionocent; for no fact which is not criminal, in case the paper be a libel, can amount to a publication, of which the defendant ought to be found guilty. But no question of that kind arose in this cause. Therefore I directed the jury to consider whether all the invendoes, and all the applications to matter and persons, made by the information, were, in their judgment, the true meaning of the paper. If they thought otherwise, they should acquit the defendant; but if they agreed with the information, and believed the evidence as to the publication, they should find him guilty. If the jury were obliged to find whether the paper was a libel, or whether it was a libel to such a degree as to deserve the epithets given it by the information, or to require proofs of the express intent of the defendant in printing and publishing, and of its being malicious to such a degree as to deserve the epithets given by the information-then this direction was wrong. In support of it, I told them, as I have from indispensible duty been obliged to tell every jury, upon every trial of this kind, to the following effect: that whether the paper (meaning as alleged by the information) was in law a George Harris, register of pamphlets and libel, was a question of law upon the face of newspapers, proved, that the defendant him- the record: for after conviction, a defendant self and servants paid the money for advertise- may move in arrest of judgment, if the paper ments in the Public Advertiser ; that defendant is not a libel. That all the epithets in the inhad paid himself, and all the payments were formation were formal inferences of law from on his account. That defendant has made the the printing and publishing. That no proof of usual affidavit, and has been allowed the stamp- express malice was ever required, and is in duty for such papers as were unsold. That the most cases impossible to be given. That the duties on advertisements in the paper now in verdict finds only what the law infers from question, were paid by defendant's servants, fact: therefore, after conviction, a defendant and the receipt given on defendant's account. may, by affidavits, lessen the degree of his William Lee, clerk to sir John Field-guilt. That where an act in itself indifferent, ing, proved, that he often carried advertisements for the Publie Advertiser, the corner of Ivy-lane. That he generally paid ready money; that he had seen money paid to the defendant for advertisements, and he had a receipt from the defendant signed by bim the 29th of November, 321. for printing advertisements in the Public Advertiser. On the part of the defendant they called no witnesses. His counsel objected to some of the inuendoes, but [VOL. XVI. ] if done with a particular intent, becomes criminal, there the intent must be proved and found: but where the act is in itself unlawful, as in this case, the proof of justification, or excuse, lies on the defendant; and, in failure thereof, the law implies a criminal intent. The jury stayed out a great while, many hours; at last they came to my house; (the objection of its being out of the county being cured by consent.) In answer to the usual [4 P] the verdict. At the same time a motion | vered the opinion of the Court upon the was made by the counsel for the crown, for a rule upon the defendant to shew cause why the verdict should not be entered up according to the legal import of the words. On both motions, a rule to shew cause was granted, and soon after the matter was argued before the Court of King'sbench. The noble judge, when he deli question put by the officer, the foreman gave their verdict in these words: "Guilty of printing and publishing only." Nothing more passed. The officer has entered up the verdict literally, without so much as adding the usual words of reference to connect the verdict with the matter to which it is related. Upon this, the two rules I have stated were moved for. Upon that obtained by the Attorney-General, the affidavit of a juror was offered by the counsel for the defendant. But we are all of opinion that it cannot be received. Where there is a doubt upon the judge's report, as to what passed at the time of bringing in the verdict, there the affidavits of jurors, or by-standers, may be received upon a motion for a new trial, or to rectify a mistake in the minutes. But the affidavit of a juror never can be read as to what he then thought or intended. This motion consists of two parts; first, to fill up the formal words of reference; second, to omit the word only.' We are of opinion, that the first is a technical omission of the clerk, and ought to be set right. As to the second, that the word 'only' must stand in the verdict. There is no ground (from any thing which passed) to explain the sense of the jury, so as that the officer ought to have entered a general verdict. No argument can be urged for omitting the word only,' which does not prove that it can have no effect, though inserted; and therefore it is a question of law upon the face of the verdict. The defendant's motion must be considered upon the ground of the word 'only' standing; was it omitted, there could be no doubt. Guilty of printing and publishing, where there is no other charge, is guilty for nothing more is to be found by the jury. In the case of the King against Williams, the jury found the defendant guilty of printing and publishing the North Briton, No. 45; the clerk entered it up guilty, and no objection ever was made. Where there are more charges than one, guilty of some only, is an acquittal as to the rest. But in this information there is no charge except for printing and publishing. Clearly there can be no judgment of acquittal; because the fact found by the jury is the very crime they were to try. The only question is, Whether, by any possibility, the word 'only' can have a meaning which would affect or contradict the verdict. verdict, went regularly through the whole of the proceedings at Nisi Prius, as well the evidence that had been given, as his own charge to the jury. This proceeding would have been very proper, had a motion been made of either side for a new trial, because either a verdict given contrary to evidence, or an improper charge by the judge at Nisi Prius, is held to be a sufficient ground for granting a new trial; . That the law, 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. Among those who have 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. This direction, though often given (with an express request from me, that if there was the least doubt, they would move the Court) has never been complained of in court; and yet, if it was wrong, a new trial would be of course. It is now complained on. Taking then the law to be according to this direction, the question is, whether any meaning can be put upon the word only,' as it stands upon the record, which will affect or contradict the verdict. If they meant to say that they did not find it a libel, or did not find the epithets, or did not find any express malicious intent, it would not affect the verdict; because none of these things were to be proved or found either way. If, by 'only,' they meant to say that they did not find the meaning put upon the paper by the infor mation, they should have acquitted him. If they had expressed this to be their meaning, the verdict would have been inconsistent and repugnant; for they ought not to find the defendant guilty, unless they find the meaning put upon the paper in the information; and judgment of acquittal ought to have been entered up. If they had expressed their mean. ing in any of the other ways, the verdict would not have been affected, and judgment ought to be entered upon it. It is impossible to say with certainty what the jury really did mean; probably they had different meanings. If they could possibly mean that which is expressed would acquit the defendant, he ought not to be concluded by this verdict. Is it possible some of them might mean, not to find the whole sense and explanation put upon the paper by the innuendoes in the information. If a doubt arises from an ambiguous and unusual word in the verdict, the Court ought to lean in favour of a Venire de Novo. We are under the less difficulty, because, in favour of a defendant, though the verdict be full, the Court may grant a new trial. And we are all of opinion, upon the whole of the case, there should be a new trial. but when a motion is made in arrest of judgment, or for establishing the verdict, by entering it up according to the legal import of the words, it must be on the ground of something appearing on the record; and the Court, in considering whether the verdict shall be established or not, are so confined to the record, that they cannot take notice of any thing that does not appear on the face of it; to make use of the legal phrase, they cannot travel out of the record. The noble judge did travel out of the record, and I affirm, therefore, that his conduct was irregular, extrajudicial, and unprecedented; and I am sure there is not a lawyer in England that will contradict me. His real motive for doing what he knew to be wrong, was, that he might have an opportunity of telling the public extrajudicially, that the other three judges agreed with him in the doctrine laid down in his charge. Lord Camden asked, if lord Mansfield meant to have his paper entered upon the Journals. To which lord Mansfield answered, No! no! only to leave it with the clerk. Thus in fact, lord Mansfield, after having had the House summoned, made no motion at all; but contented himself with informing the House, that the Paper in question was in the hands of the Clerk, for any lord to take a copy who chose it; nor could any lord make a motion upon the ground of the Clerk's having the paper, no more than they could if the noble lord had told them that the paper was left at the Royal Oak, or the Calf's-head club. In either of these cases, the lords might have satisfied their curiosity, but could not, as lords of parliament, proceed upon it. Indeed, lord Mansfield did not pretend to say, that in their corporate capacity, as a House of Peers, they could take the least notice of the paper; and he himself did not ground any motion upon it. The House of Lords cleared of Strangers whilst a Peer was speaking.] After this business was over, The Duke of Manchester stood up, in order to make a motion; his grace spoke with an uncommon degree of eloquence; first, upon the just complaints of the people, and the contempt with which those complaints had been treated. His grace then described the state of the nation, and the defenceless condition in which it continued, from the supineness of, and the dislike that was every where shewn to administration. Ask the officers of the army, and they will confess they cannot get recruits. His grace then lamented the want of a sufficient naval power to guard the garrisons of Gibraltar and Minorca: he declared our possession of Gibraltar was of the utmost service to us; that our holding a fort in the Spanish kingdom so many years was at the same time equally an honor to our crown, and a degradation to that of Spain; that it was therefore indisputable, that the Spaniards would be very glad to repossess themselves of that garrison, and would, in case of a rupture, seize the first opportunity of driving us from it; at this time his grace declared, there were but two of our ships at Gibraltar; and one of them has proved so leaky she could not keep the sea Here his grace was interrupted by lord Gower, who desired that the House might be cleared of all but those who had a right to sit there; he observed, that when motions were brought on by surprise, and the members of that House had no previous notice to enable them to guess at what they might consist of, and when upon those motions such things came out as ought not to be publicly divulged, no persons but peers should hear them, as in a House so crowded as the present, there might be emissaries from the court of Spain and other powers. And, indeed, another reason why the House ought to be cleared, was, that persons were admitted who took notes of what had passed, as was evident from a speech made by a noble that time in his pocket in print; there lord, which his lordship declared he had at was a standing order of the House, that none but peers should come there, and it admittance was granted to any other was through indulgence that at any time persons. The standing order of the House was then read, when the duke of Richmond got up, and defended what the duke of Manchester had said, observing, that though it was very true any lord had a right to order the House to be cleared, yet that their doing it now would alarm the people, who would immediately suppose they were afraid their proceedings should be known; and added, that the noble duke not having been charged by the earl with disorder, the earl was irregular in moving to clear the House while, the duke was speaking. Immediately a violent outcry arose, and all became clamour, and con fusion. Clear the House! Clear the House! was echoed from side to side. The duke of Richmond's voice was drowned in the clamour; lord Chatham, shocked at the indecency of such proceeding, arose, hoping that his age, his services, his abilities, would force attention; but in vain. Lord Chatham continued speaking, without being heard, for some time. He sent the duke of Richmond to the Speaker (lord Mansfield) to acquaint his lordship he wanted to speak to the construction of the standing order. But he could not be heard. The taste was evidently for lord Denbigh's eloquence. Lord Chatham at length, wearied out with insult, declared, that if he was not to have the privilege of a lord of parliament, and to be allowed the exercise of free debate, it was needless and idle for him to attend parliament. He left the House, and about 18 lords followed his example. No sooner were these noble persons retired, than, as if the design of the ministry had been to tell the world, that the presence of those members was the only check that controled them from the most violent absurdities, they insisted on the members of the House of Commons being turned out. In the crowd some of the members of the House of Commons represented that they were in the act of their duty, attending with a Bill; they were, however, forced to withdraw, till the message was delivered, and they then attended their Bill in a pretty large body. They had no sooner delivered the Bill, than the outcry began again; time was not given them to see whether they would return or not of their own accord, but they were, in an unprecedented manner, hooted out of the House. Their noisy, indecent, tumultuous proceedings, having driven away a large, respectable, independent part of their own body, they then proceeded to affront the whole Commons of England. Protest against clearing the House of Strangers.] On this extraordinary occasion the following Protest was entered upon the Journals: "Dissentient, "Because a peer, being in the course of a most spirited but proper and decent speech, introductory to a motion of importance to the public safety, which he declared it his intention to make, was, under pretence of speaking to order, interrupted in a manner equally insidious and disorderly. When the peer was thus improperly and groundlessly interrupted, and the standing order No. 112, relative to the clearing of the House, read, another peer getting up to speak to order upon this astonishing interruption, could not obtain a hearing. The irregular, clamorous, and indecent behaviour of several lords who called out incessantly, Clear the House! Clear the House! rendered all argument, and all representation upon the subject, utterly impracticable. "This indecent and hitherto unprecedented uproar was continued, even when the noble lord on the woolsack stood up with his hat off to explain order; the same tumult, which at first interrupted the lord in his speech, and did not permit the lord who spoke to order to be heard, prevented also any information from the woolsack. "In this unexpected tumult, in which every idea of parliamentary dignity, the right of free debate, all pretence to reason and argument were lost and annihilated, despairing of being able to hear or to be heard, we found ourselves at length obliged to leave the House; and we cannot, without the utmost concern, reflect upon the method in which the House was cleared, thinking the personal interference of peers, and their going to the bar to require the members of the other House to withdraw, to be equally derogatory from the dignity of the Lords, and disrespectful to the House of Commons. "We must consider this proceeding (too manifestly premeditated and prepared) to have been for no other purpose than to preclude enquiry on the part of the lords, and, under colour of concealing secrets of state, to hide from the public eye, the unjustifiable and criminal neglects of the ministry, in not making sufficient and timely provision for the national honour and security. "We therefore do now most solemnly protest against the whole of this irregular conduct, as tending to suppress the sober and dispassionate deliberation which ought to guide the proceedings of this House, and to substitute clamour and violence in the place of reason and argument. (Signed) Richmond, Rockingham, Chat ham, Northumberland, Huntingdon, Wycombe, Fitzwilliam, Abergavenny, Portland, Torrington, Manchester, Milton, Bolton, Abingdon, Ponsonby, Devonshire." Then it was moved and agreed to, |