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SPEECH OF MR. ERSKINE FOR THE
With the two gentlemen charged in the information, as proprietors of the Morning Chronicle, I have been long and well acquainted. Of Mr. John Lambert, who conducts the mechanical part of the printing business, I have no personal knowledge; but from my intimate acquaintance with the other two, I have no difficulty in saying, that if I had in my soul the slightest idea that they were guilty, as charged in the information, of malicious and wicked designs against the state, I should leave the task of defending them to others. Not that I conceive I have a right to refuse my professional assistance to any man who demands it; but I have for a day or two past been so extremely indisposed, that I feel myself scarcely equal to the common exertion of addressing the court; and it is only from the fullest confidence in the innocence of the defendants that I come forward for a very short time to solicit the attention of the jury. You, gentlemen, indeed, are the sole arbitrators in this cause, and to you it belongs to decide on the whole merits of the question. Mr. Attorney-General has already given a history of the prosecution, which was originally taken up by his predecessor, now called to a high situation in his profession. I do not mean by anything I shall say to impute unbecoming conduct to either of those respectable gentlemen for the part which they have taken in this business; they no doubt brought it forward, because they considered it as a proper matter for the discussion of a jury. I take it for granted that they would not have acted so, but from a sense of duty: be this however as it may, the weight of their characters ought to have no influence upon your minds against the defendants. It would be dangerous to justice indeed, if, because a charge was brought by a respectable Attorney-General, it were to be received as an evidence of guilt which ought at all to bias the judgment or affect the decision of the jury. It is the privilege of every British subject to have his conduct tried by his peers, and his guilt or innocence determined by them. In this case Mr. Attorney-General has given no judgment; he has taken up the business merely in the course of his professional duty. The whole of the matter comes before you, gentlemen of the jury, who of course will reject everything that can have a tendency to influence your decision independently of the merits of the cause; you will suffer no observation that may fall from
ed friend, or from myself, to interfere with your own honest and unbiased judgments. You are to take everything that relates to the case into your own consideration; you are to consult only your own judgments; you are to decide, as you are bound by your duty, according to your own consciences; and your right to decide fully, on every point, is clearly ascertained by the law of libels. To the act lately passed you are to look as the only rule of your conduct in the exercise of your functions.
With respect to the interpretation of that act, I must confess that my learned friend and I materially differ. In one principle, however, we entirely agree, that a case of libel is to be tried exactly as any other criminal case; this point indeed he has most correctly stated. When a man accused of a libel is brought before a jury, they are to consider only the mind and intention with which the matter was written, and accordingly as they shall find that, they are to form their decision of guilt or innocence. They are to dismiss every other consideration, and allow themselves to be biased by no motive of party or political convenience. There is this essential difference between criminal and civil cases : in criminal cases, the jury have the subject entirely in their own hands; they are to form their judgment upon the whole of it, not only upon the act alleged to be criminal, but the motive by which it was influenced; the intention with which it was committed; and according to their natural sense of the transaction, they ought to find a man innocent or guilty; and their verdict is conclusive. Not so in civil cases: in these the jury are bound to abide in their decision by the law as explained by the judge; they are not at liberty to follow their own opinions. For instance, if I am deprived of any part of my property, the loss of my property lays a foundation for an action, and the fact being found, the jury are bound to find a verdict against the person who has occasioned my loss, whatever might be his intentions. Here the judge pronounces law, the jury only find the fact. The law and the fact are as distinct and separate, as light from darkness; nor can any verdict of a jury pass for a farthing in opposition to the law, as laid down by the judge, since the courts have a power to set such a verdict aside. But in criminal cases, the very reverse has been immemorially established, the law and the fact have been inseparably joined; the intention of the party accused is the very gist of the case. We are criminal only in the eyes of God and man, as far as the mind and intention in committing any act have departed from the great principles of rectitude, by which we are bound as moral agents, and by the indispensible duties of civil society. It is not the act itself, but the motive from which it proceeds, that constitutes guilt, and the general plea therefore in all criminal cases is not guilty. Such is the answer which the justice and clemency of our laws have put into the mouth of the accused; leaving him the right of acquittal, if the circumstances of the transaction shall be found to exculpate his motives.
The criminality of a person under the libel act, is not to be taken as an inference of law from the fact, as Mr. Attorney-General has stated it; but if, as one of the authors of that bill, I may be allowed to interpret its meaning, it connects and involves the law and the fact together, and obliges the jury to find in this crime, as in all others, by extrinsic as well as intrinsic means, the mind and intention with which the fact was committed. Nothing can be more simple than the doctrine. It goes directly to the reason of the thing. Two men, for instance, are in company and one of them is killed. It is not an inference in the law from the fact of the killing that the person was guilty of murder; it might be manslaughter, justifiable homicide, chance-medley, or it might be murder; the fact does not infer the crime; it is the intention with which the act was committed, and this the jury are bound to discover and decide upon from all the accompanying circumstances. If I had been wrong in holding this opinion, all my opposition to that great luminary of the law now departed, but who will always live in public memory, was