* It has been intimated, however, that what a representa- [* 459] tive is privileged to address to the house of which he is a member, he is also privileged to address to his constituents; and

dale. In this complicated state of affairs, the proper and dignified mode of relieving the difficulty by the passage of a statute making such publications privileged for the future was adopted. For an account of this controversy, in addition to what appears in the law reports, see May, Law and Practice of Parliament, 156-159, 2d ed.; May, Constitutional History, c. 7. A case in some respects similar to that of Stockdale v. Hansard is that of Popham v. Pickburn, 7 Hurl. & Nor. 891. The defendant, the proprietor of a newspaper, was sued for publishing a report made by a medical officer of health to a vestry board, in pursuance of the statute, and which reflected severely upon the conduct of the plaintiff. The publication was made without any comment, and as a part of the proceedings of the vestry board. It was held not to be privileged, notwithstanding the statute provided for the publication of the report by the vestry board, which, however, had not yet been made. Wilde, B., delivering the opinion of the court, said: "The defendant has published that of the plaintiff which is undoubtedly a libel, and which is untrue. He seeks to protect himself on the ground that the publication is a correct report of a document read at a meeting of the Clerkenwell vestry, which document must have been published and sold at a small price by the vestry in a short time. But we are of opinion this furnishes no defence. Undoubtedly the report of a trial in a court of justice in which this document had been read would not make the publisher thereof liable to an action for libel, and reasonably, for such reports only extend that publicity which is so important a feature of the administration of the law in England, and thus enable to be witnesses of it not merely the few whom the court can hold, but the thousands who can read the reports. But no case has decided that the reports of what takes place at the meeting of such a body as this vestry are so privileged; indeed the case cited in the argument [Rex v. Wright, 8 T. R. 293] is an authority that they are not. Then, is the publication justified by the statute? It is true that the document would have been accessible to the public in a short time, though not published by the defendant; but this cannot justify his anticipating the publication, and giving it a wider circulation, and possibly without an answer which the vestry might have received in some subsequent report or otherwise, and which would then have been circulated with the libel. This defence therefore fails.

"It was further contended that this libel might be justified as a matter of public discussion on a subject of public interest. The answer is: This is not a discussion or comment. It is the statement of a fact. To charge a man incorrectly with a disgraceful act is very different from commenting on a fact relating to him truly stated; there the writer may, by his opinion, libel himself rather than the subject of his remarks.

"It is to be further observed that this decision does not determine or affect the question whether, after the statutory publication, it might or might not be competent to others to republish these reports, with or without reasonable comments."

that the bona fide publication for that purpose of his speech in the house is protected. And the practice in this country [* 460] appears to proceed on this idea; the speeches and proceedings in Congress being fully reported by the press, and the exemption of the member from being called to account for his speech being apparently supposed to extend to its publication also. When complete publicity is thus practised, perhaps every speech published should be regarded as addressed bona fide by the representative, not only to the house, but also to his constituents. But whether that view be taken or not, if publication is provided for by law, as in the case of Congressional debates, the publishing must be considered as privileged.

The Jury as Judges of the Law.

In a considerable number of the State constitutions it is provided that, in prosecutions for libel, the jury shall have a right to determine the law and the fact. In some it is added, "as in other cases;" in others, "under the direction of the court." For the necessity of these provisions we must recur to the rulings of the English judges in the latter half of the last century, and the memorable contest in the courts and in Parliament, resulting at last in the passage of Mr. Fox's Libel Act, declaratory of the rights of juries in prosecutions for libel.

In the year 1770, Woodfall, the printer of the " Morning Advertiser," was tried before Lord Mansfield for having published in his paper what was alleged to be a libel on the king; and his lordship told the jury that all they had to consider was, whether the defendant had published the paper set out in the information, and whether the innuendoes, imputing a particular meaning to particular words were true, as that "the K" meant his Majesty King George III.; but that they were not to consider whether the publication was, as alleged in the information, false and malicious, those being mere formal words; and that whether the letter was libellous or innocent was a pure question of law, upon which the opinion of the court might be taken by a demurrer, or a motion in arrest of judgment. His charge obviously required the jury, if

1 Lives of Chief Justices, by Lord Campbell, Vol. III. p. 167; Davison v. Duncan, 7 El. & Bl. 229, 233.

satisfied the publication was made, and had the meaning attributed to it, to render a verdict of guilty, whether they believed the publication false and malicious or not; in other words, to convict the party of guilt, notwithstanding they might believe the essential element of criminality to be wanting. The jury, dissatisfied with these instructions, and unwilling to make their verdict

cover * matters upon which they were not at liberty to [* 461] exercise their judgment, returned a verdict of "guilty of printing and publishing only," but this the court afterwards rejected as ambiguous, and ordered a new trial.1

In Miller's case, which was tried the same year, Lord Mansfield instructed the jury as follows: "The direction I am going to give you is with a full conviction and confidence that it is the language of the law. If you by your verdict find the defendant not guilty, the fact established by that verdict is, he did not publish a paper of that meaning; that fact is established, and there is an end of the prosecution. You are to try the fact, because your verdict establishes that fact, that he did not publish it. If you find that, according to your judgment, your verdict is final, and if you find it otherwise, it is between God and your consciences, for that is the basis upon which all verdicts ought to be founded; then the fact finally established by your verdict, if you find him guilty, is, that he printed and published a paper of the tenor and of the meaning set forth in the information; that is the only fact finally established by your verdict; and whatever fact is finally established never can be controverted in any shape whatever. But you do not by that verdict give an opinion, or establish whether it is or not lawful to print or publish a paper of the tenor and meaning in the information; for, supposing the defendant is found guilty, and the paper is such a paper as by the law of the land may be printed and published, the defendant has a right to have judgment respited, and to have it carried to the highest court of judicature." 2

Whether these instructions were really in accordance with the law of England, it would be of little importance now to inquire. They were assailed as not only destructive to the liberty of the

120 State Trials, 895.

220 State Trials, 870. For an account of the raising of the same question in Pennsylvania, so early as 1692, see The Forum, by David Paul Brown, Vol. I. p. 280.

press, but as taking from the jury that right to cover by their verdict all the matter charged and constituting the alleged offence, as it was conceded was their right in all other cases. In no other case could the jury be required to find a criminal intent which they did not believe to exist. In the House of Lords they were assailed by Lord Chatham; and Lord Camden, the Chief Justice of the Common Pleas, in direct contradiction to Lord Mansfield, declared * Never

[* 462] his instructions not to be the law of England.

theless, with the judges generally the view of Lord Mansfield prevailed, and it continued to be enforced for more than twenty years, so far as juries would suffer themselves to be controlled by the directions of the courts.

The act known as Mr. Fox's Libel Act was passed in 1792, against the protest of Lord Thurlow and five other lords, who predicted from it "the confusion and destruction of the law of England." It was entitled "An act to remove doubts respecting the functions of juries in cases of libel," and it declared and enacted that the jury might give a general verdict of guilty or not guilty, upon the whole matter put in issue upon the indictment or information, and should not be required or directed by the court or judge before whom it should be tried to find the defendant guilty, merely on the proof of the publication of the paper charged to be a libel, and of the sense ascribed to the same in the indictment or information: Provided, that on every such trial the court or judge before whom it should be tried should, according to their discretion, give their opinion and direction to the jury on the matter in issue, in like manner as in other criminal cases: Provided also, that nothing therein contained should prevent the jury from finding a special verdict in their discretion, as in other criminal cases: Provided also, that in case the jury should find the defendant guilty, he might move in arrest of judgment on such ground and in such manner as by law he might have done before the passing of the act.

Whether this statute made the jury the rightful judges of the law as well as of the facts in libel cases, or whether, on the other hand, it only placed these cases on the same footing as other criminal prosecutions, leaving it the duty of the jury to accept and follow the instructions of the judge upon the criminal character of the publication, are questions upon which there are still differences

of opinion. Its friends have placed the former construction upon it, while others adopt the opposite view.1

In the United States the disposition of the early judges was to adopt the view of Lord Mansfield as a correct exposition of the respective functions of court and jury in cases of libel; and on the memorable trial of Callendar, which led to the impeachment of Judge Chase, of the United States Supreme Court, the right of the jury to judge of the law was the point in [* 463] dispute upon which that judge first delivered his opinion, and afterwards invited argument. The charge there was of libel upon President Adams, and was prosecuted under the Sedition Law so called, which expressly provided that the jury should have the right to determine the law and the fact, under the direction of the court, as in other cases. The defence insisted that the Sedition Law was unconstitutional and void, and proposed to argue that question to the jury, but were stopped by the court. The question of the constitutionality of a statute, it was said by Judge Chase, was a judicial question, and could only be passed upon by the court; the jury might determine the law applicable to the case under the statute, but they could not inquire into the validity of the statute by which that right was given.2

Whatever may be the true import of Mr. Fox's Libel Act, it would seem clear that a constitutional provision which allows the jury to determine the law refers the questions of law to them for their rightful decision. Wherever such provisions exist, the jury, we think, are the judges of the law; and the argument of counsel upon it is rightfully addressed to both the court and the jury. Nor can the distinction be maintained which was taken by Judge Chase, and which forbids the jury considering questions affecting the constitutional validity of statutes. When the question before them is, what is the law of the case, the highest and paramount law of the case cannot be shut from view. Nevertheless, we conceive it to be proper, and indeed the duty of the judge, to instruct the jury upon the law in these cases, and it is to be expected that they will generally adopt and follow his opinion.

Where, however, the constitution provides that they shall be judges of the law "as in other cases," or may determine the law

1 Compare Forsyth on Trial by Jury, c. 12, with May's Constitutional History of England, c. 9.

2 Wharton's State Trials, 688.