Manasseh Dawes

“ Again, "The trial by jury has ever been, and I trust ever will be looked upon as the glory of the English law. As it has so great an advantage in regulating civil property, how much must that advantage be heightened, when it is applied to criminal cases! It is the most transcendent privilege which any subject can enjoy or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals. ”

“ Yet, Heaven be praised, it is now become so well understood, and its deceit shines so glaringly out of the veil that has so artfully been spread over it, that another Dialogue, and another prosecution, like a late one, will in all probability so severely hamper the criminal Judges, in their own sophistry, as either to compel them to leave Juries to judge of law and fact, in matters of libel, as in all other, agreeably to their right so to do, or that the business will be taken up by Parliament, for the honour of God and conscience, truth and common reason ”

“ He cannot entertain too humble an opinion of his origin, to do justice to all, and undervalue none but those that encroach upon the rights and liberties of his fellow-subjects. For no man is proper to fit as an English Judge, my Lord, who does not value the rights and liberties of the meanest as intrinsically equal to that of the noblest. An upright Judge will never resemble a jockey, in estimating mankind, as horses, only by their blood. ”

“ For the nation ought on no account to rely on the capricious, partial, or inscrutable arbitrium of any individual whatsoever.
Whether the trial by jury arose from the popular assemblies, or the assemblies from that mode of trial, is, my Lord, I believe not ascertained. Certain it is, that we can trace the trial by jury up to the Athenians. Every free citizen of Athens was a juror, if he pleased, for he had a right to sit as a Judge. Citizens, there, must have even sat at the Areopagus as jurors or judges, which terms are undoubtedly synonymous. ”

“ For you are no more in fact, than a chief and perpetual president of every jury, always keeping strictly to the spirit where you cannot to the letter of the law, which it is your duty to explain. The Judge only should declare, and the jurors decide.
As the slavish doctrine, that jurors are only judges of the fact, is big with the utmost danger to the freedom of the whole British empire, it cannot be too generally execrated and exploded. The uncontrouled trial by jury being the cornerstone of the temple of Liberty, every one is personally interested in its preservation. ”

“ For is it not the heighth of absurdity and injustice, that a Parliament shall enact laws, which neither the King nor the People dare break, but which a Judge may set aside, or act diametrically opposite to the spirit of the constitutional law with impunity? ”

“ It is, therefore, upon the whole, a duty which every man owes to his country, his friends, his posterity, and himself, to maintain, to the utmost of his power, this valuable Constitution in all its rights; to restore it to its ancient dignity, if at all impaired by the different value of property, or otherwise deviated from its first institution ”

“ The law is not left for the court to judge exclusively of, as it arrogantly does in the case a libel. The Jury, by finding for the plaintiff, or the defendant, include it in their verdict. And as to the other pretence, that they have nothing to do with the question of murder or no murder, no Crown Lawyer will be hardy enough to say, in his closet, whatever he may say in court, that if they find a man guilty of it, they do not join law and fact together, or that when the law is fully explained to them, they do not apply it to the fact proved, and find accordingly. ”

“ But, my Lord, (says Junius) since Judges have laboured, and not unsuccessfully, to destroy the substance of the trial, why should they suffer the form of the verdict to remain [3] ? Why force twelve honest men, in palpable violation of their oaths, to pronounce their fellow-subject a guilty man, when, almost at the same moment, they are forbidden to enquire into the only circumstance which, in the eye of law and reason, constitutes guilt—the malignity or innocence of his intentions? ”

“ When a Judge invades the province of a jury, in matter of libel, he in effect attacks the liberty of the press. In some instances, he has succeeded, because jurymen are too often ignorant of their own rights, and too apt to be awed by the authority of a chief Justice. In other criminal prosecutions, the malice of the design is confessedly as much the subject of consideration to a jury, as the certainty of the fact. If a different doctrine prevail in the case of libels, why should it not extend to all criminal cases? ”

“ I say every morning, because, if you exercise too late in the evening, you may fall into some of the legal snares, which have been spread for you by those gentlemen, who would rather secure game for their table, than liberty for the nation. ”

“ If it be as simple as the Dialogue, and as consonant with the Revolution principles of a Somers and a Locke, it can never be a libel, even though a King's counsel, in defence of a government which may openly violate them, should presume to declare his opinion to the contrary. ”

“ And it was ever esteemed in all countries a privilege of the highest and most beneficial nature. The more it is searched into and understood, the more it is sure to be valued: And this is a species of knowledge most absolutely necessary for every gentleman in the kingdom; as well because he may be frequently called upon to determine in this capacity the rights of others, his fellow-subjects, as because his own property, his liberty, and his life, depend upon maintaining, in its legal force, the constitutional trial by jury. ”

“ But supposing, by the way, that in every prosecution for a libel, the writing, or publishing, were unquestionable, and the sense of the court were to be taken on the criminality of either by demurrer (which would, as things now go, save much time, trouble, and expence, as the rule of law at present stands constructed by the Judges, unestablished on the noble basis of the common law, lex terræ, or statute law) a man has nothing to depend on but their discretion, and the partial use of the jargon of inuendos, averments, and intendments for his acquittal. ”

“ F. Some of my neighbours, who have served in the militia, will readily teach me; and perhaps the whole village may be persuaded to procure arms, and learn their exercise.
G. It cannot be expected, that the villagers should purchase arms; but they might easily be supplied, if the gentry of the nation would spare a little from their vices and luxury.
F. May they turn to some sense of honour and virtue!
G. Farewell, at present; and remember, "That a free state is only a more numerous and more powerful club, and that he only is a free man, who is a member of such a state." ”

“ They have no legal criterion, whereby the innocence or criminality of our discussions is discoverable. Their provocation and tendency to break the peace, are all that constitute their guilt. Now, granting readily that a rebellion actually begun, may produce a revolution, in which it is lost and forgotten, and that consequently it is the duty of the existing government to prevent it, none but the over-timid and apprehensive can ever say, that a paper written with moderation, temper, and positive or speculative truth, can produce it. ”

“ Retract, therefore, my Lord, your opinion respecting the power of Judges in libellous cases. Even age can never look more amiable than in amending its errors. As it is almost the only speck that dims the lustre of your admired talents, wipe it off in time, my Lord, and you shall go down to the grave in all the dazzling splendor that shines upon superior talents, when possessed by a man so renowned for justice and integrity as you Lordship. ”

“ The jurors it contains are chosen by the people, to fit, hear, and redress every grievance, by their special and general verdict, which they deliver to the Sovereign Judge, for his final declaration. But does he ever question their right to deliver a general verdict in all cafes whatsoever? The Sovereign on the throne is in many respects similar to the Judge on the bench It is his business to declare the law, and he must leave his jurors to their free opinions. The only material difference between a Sovereign and a Judge is, that the one enforces the law, and the other explains it. ”

“ How narrowly then, ought Britons to scrutinize the conduct of their Judges. For they are but frail mortals, as the rest of mankind. When elevated and intoxicated with their juridical paraphernalia, they more often look forward to acquire wealth and power, than to preserve the rights of the people. ”

“ A bad precedent once established, is even worse than a bad law. The latter may be repealed, while the former ought to be erazed. However the worthy may avoid following such precedents, they will ever be adopted by the unworthy, who will enlarge and refine upon them, by bringing every possible case within their meaning: For evil-minded Judges, my Lord, are as eager to fix precedents that shall sap the foundation of our liberty, as good ones are in correcting the erroneous practice of our Courts. ”

“ And very fortunately for Lord Mansfield, who, in every other case between man and man, is celebrated for dispensing the most equitable justice, that very doctrine he seems peculiarly fond of, was reserved to be destroyed, until some future occasion shall again call forth the honest exertions of Mr. Erskine, to rescue a supposed libeller from the fangs of the law's exclusive consideration on his guilt, after a Jury have found the innocent fact of printing, or publishing, on the trial of the indictment, which, in point of inuendo and averment, may be every way compleat and pleader like. ”

“ Buller, in order to blind the Jury's eyesight into the true distinction, that because they had no right to judge of the operation of a fine, in a civil cause of ejectment, nor to determine murder or no murder, in a criminal one, they had nothing to do with the criminality of any paper, for the writing or publishing whereof, a man was prosecuted as a libeller. ”

“ By admitting that a Jury have a right to find a general verdict, they admit them, to all intents and purposes, to be judges of guilt, or no guilt, according to the charge of which a man is indicted, and which, if not made out in evidence, must with them, and them only, fall to the ground. ”

“ It is hardly in the power of education, travel, society, or even time, to expel that which is engendered in our very natures. Especially if that propensity flatters our pride, feeds our ambition, and raises our imagination to account even our blood as superior, and of a different quality from that of the common mass of mankind. ”

“ Such contradictions, such warpings, such jargon and confusion, which such legal sophists are guilty of, may well embarrass a Jury of honest, well-intentioned men, and deprive them of their right. But when truth is separated and disentangled from them it must appear, 1st. That the Dialogue in question is no libel. 2d, That a Jury have a right to judge of libel or no libel. ”

“ If the Judges, therefore, be allowed, my Lord, to decide upon the law in libellous cases, it will prove to be in time as effectual an imprimatur as ever was in this country previous to the Revolution. Prevent only the people from communicating their free and unbiased sentiments in print to one another, and arbitrary Monarchy, Aristocracy, or Democracy, again rear their heads. ”

“ The question of libel or no libel, or indeed the criminality of any paper, taken up as the former, being assumedly in the criminal court, though justly in the Jury, let us see then how far the Dialogue between a Gentleman and a Farmer is obnoxious to censure. ”

“ I see no reason, why the life of the subject should be better protected than his liberty or property. Why should a Judge enjoy the full power of pillory, fine and imprisonment, and not b indulged with hanging or transportation? ”

“ F. Why should humble men like me, sign or set marks to petitions of this nature? It is better for us farmers to mind our husbandry, and leave what we cannot comprehend to the King and Parliament.
G. You can comprehend more than you imagine; and, as a free member of a free state, have higher things to mind than you may conceive.
F. If by free you mean out of prison, I hope to continue so, as long as I can pay my rent to the 'squire's bailiff; but what is meant by a free state?
G. Tell me first what Is meant by a club in the village, of which I know you to be a member. ”

“ We often observe Lords with the narrow minds of plebeians, and plebeians possessed of virtues and genius that would throw a lustre on Princes.—Judges, therefore, in order to be just, must entertain an equal respect for the rights of all ranks of men; and the lowest peasant, even by birth, is entitled as much to the enjoyment of the laws, as the highest Peer. ”

“ But it needs only to be minutely examined, and properly valued, to rouze the nation to preserve it unimpaired, for the benefit of the present generation, and that we may transmit it to posterity uncontaminated and undiminished. ”

“ Tyrannic minds have always endeavoured to extend both. There is a propensity in mankind towards dominion, which, if not checked by jarring interests, would have, long ere this period, terminated in universal slavery and barbarity. ”

“ Thus were the Grecian and Roman Senates, the Jewish Sanhedrims, the German Diets, the French and English Parliaments, &c. first created. These institutions may be termed the truly Grand Juries of the human race. While they preserved their privileges, the people preserved their liberty ”