even of a dead man, may be punished as a libel, because tending to a breach of the peace. There is, however, I believe, no modern decided case to that effect. In the King’s Bench, Trinity Term, 1790, the question occurred on occasion of an indictment, The King v. Topham, who, as a proprietor of a news-paper entitled The World, was found guilty of a libel against Earl Cowper, deceased, because certain injurious charges against his Lordship were published in that paper. An arrest of Judgement having been moved for, the case was afterwards solemnly argued. My friend Mr. Const, whom I delight in having an opportunity to praise, not only for his abilities but his manners; a gentleman whose ancient German blood has been mellowed in England, and who may be truely said to unite the Baron and the Barrister, was one of the Counsel for Mr. Topham. He displayed much learning and ingenuity upon the general question; which, however, was not decided, as the Court granted an arrest chiefly on the informality of the indictment. No man has a higher reverence for the law of England than I have; but, with all deference I cannot help thinking, that prosecution by indictment, if a defendant is never to be allowed to justify, must often be very oppressive, unless Juries, whom I am more and more confirmed in holding to be judges of law as well as of fact, resolutely interpose. Of late an act of Parliament has passed declaratory of their full right to one as well as the other, in matter of libel; and the bill having been brought in by a popular gentleman,585 many of his party have in most extravagant terms declaimed on the wonderful acquisition to the liberty of the press. For my own part I ever was clearly of opinion that this right was inherent in the very constitution of a Jury, and indeed in sense and reason inseparable from their important function. To establish it, therefore, by Statute, is, I think, narrowing its foundation, which is the broad and deep basis of Common Law. Would it not rather weaken the right of primogeniture, or any other old and universally-acknowledged right, should the legislature pass an act in favour of it? In my Letter to the People of Scotland, against diminishing the number of the Lords of Session, published in 1785, there is the following passage, which, as a concise, and I hope a fair and rational state of the matter, I presume to quote: ‘The Juries of England are Judges of law as well as of fact, in many civil, and in all criminal trials. That my principles of resistance may not be misapprehended any more than my principles of submission, I protest that I should be the last man in the world to encourage Juries to contradict rashly, wantonly, or perversely, the opinion of the Judges. On the contrary, I would have them listen respectfully to the advice they receive from the Bench, by which they may be often well directed in forming their own opinion; which, “and not another’s,” is the opinion they are to return upon their oaths. But where, after due attention to all that the Judge has said, they are decidedly of a different opinion from him, they have not only a power and a right, but they are bound in conscience to bring in a verdict accordingly.’
a A gentleman, who from his extraordinary stores of knowledge, has been stiled omniscient. Johnson, I think very properly, altered it to all-knowing, as it is a verbum solenne,587 appropriated to the Supreme Being.
a This Mr. Ellis was, I believe, the last of that profession called Scriveners, which is one of the London companies, but of which the business is no longer carried on separately, but is transacted by attornies and others. He was a man of literature and talents. He was the authour of a Hudibrastick version of Maphaeus’s Canto, in addition to the ALneid; of some poems in Dodsley’s Collections; and various other small pieces; but being a very modest man, never put his name to anything. He shewed me a translation which he had made of Ovid’s Epistles, very prettily done. There is a good engraved portrait of him by Pether, from a picture by Fry, which