of law indeed, whether, if there be a publication proved, it be a libel.

Gentlemen, upon the point of the publication, I have summed up all the evidence to you; and if you believe that the petition which these lords presented to the king was this petition, truly, I think, that is a publication sufficient: if you do not believe it was this petition, then my lords the bishops are not guilty of what is laid to their charge in this information, and consequently there needs no inquiry whether they are guilty of a libel? but if you do believe that this was the petition they presented to the king, then we must come to inquire whether this be a libel.

Now, gentlemen, any thing that shall disturb the government, or make mischief and a stir among the people, is certainly within the case of "Libellis Famosis"; and I must in short give you my opinion, I do take it to be a libel. Now, this being a point of law, if my brothers have anything to say to it, I suppose they will deliver their opinions.

Just. Holloway. Look you, gentlemen, it is not usual for any person to say anything after the Chief Justice has summed up the evidence; it is not according to the course of the court: but this is a case of an extraordinary nature, and there being a point of law in it, it is very fit that everybody should deliver their own opinion. The question is, whether this petition of my lords the bishops be a libel or no. Gentlemen, the end and intention of every action is to be considered, and likewise, in this case, we are to consider the nature of the offence that these noble persons are charged with; it is for delivering a petition, which, according as they have made their defence, was with all the humility and decency that could be so that if there was no ill intent, and they were not (as it is not, nor can be pretended they were) men of evil lives, or the like, to deliver a petition cannot be a fault, it being the right of every subject to petition. If you are satisfied there was an ill intention of sedition, or the like, you ought to find them guilty: but if there be nothing in the case that you find, but only that they did deliver a petition to save themselves harmless, and to free themselves from blame, by shewing the reason of their disobedience to the king's command, which they apprehended to be a grievance to them, and which they could not in conscience give obedience to, I cannot think it is a libel: it is left to you, gentlemen, but that is my opinion.

L. C. J. Look you, by the way, brother, I did not ask you to sum up the evidence (for that is not usual) but only to deliver your opinion, whether it be a libel or no.

Just. Powell. Truly, I cannot see, for my part, any thing of sedition, or any other crime, fixed upon these reverend fathers, my lords the bishops.

For, gentlemen, to make it a libel, it must be false, it must be malicious, and it must tend to sedition. As to the falsehood, I see nothing that is offered by the king's counsel, nor any thing as to the malice: It was presented with all humility and decency that became the king's subjects to approach their prince with.

Now, gentlemen, the matter of it is before you; you are to consider of it, and it is worth your consideration. They tell his majesty, it is not out of averseness to pay all due obedience to the king, nor out of a want of tenderness to their dissenting fellow subjects, that made them not perform the command imposed upon them; but they say because they do conceive that the thing that was commanded them was against the law of the land, therefore they do desire his majesty, that he would be pleased to forbear to insist upon it, that they should perform that which they take to be illegal.

Gentlemen, we must consider what they say is illegal in it. They say, they apprehend the declaration is illegal, because it is founded upon a dispensing power, which the king claims, to dispense with the laws concerning ecclesiastical affairs.

Gentlemen, I do not remember in any case in all our law (and I have taken some pains upon this occasion to look into it), that there is any such power in the king, and the case must turn upon that. In short, if there be no such dispensing power in the king, then that can be no libel which they presented to the king, which says, that the declaration, being founded upon such a pretended power, is illegal.

Now, gentlemen, this is a dispensation with a witness: it amounts to an abrogation, an utter repeal of all the laws; for I can see no difference, nor know of none in law, between the king's power to dispense with laws ecclesiastical, and his power to dispense with any other laws whatever. If this be once allowed of, there will need no parliament; all the legislature will be in the king, which is a thing worth considering, and I leave the issue to God and your consciences.

Just. Allybone. The single question that falls to my share is, to give my sense of this petition, whether it shall be in construction of law a libel in itself, or a thing of great innocence. I shall endeavour to express myself in as plain terms as I can, and as much as I can, by way of proposition.

And I think, in the first place, that no man can take upon him to write against the actual exercise of the government, unless he have

leave from the government, but he makes a libel, be what he writes true or false; for if once we come to impeach the government by way of argument, it is the argument that makes it the government or not the government. So that I lay down that, in the first place, the government ought not to be impeached by argument, nor the exercise of the government shaken by argument, because I can manage a proposition in itself doubtful, with a better pen than another man: this, say I, is a libel.

Then I lay down this for my next position, that no private man can take upon him to write concerning the government at all; for what has any private man to do with the government, if his interest be not stirred or shaken? It is the business of the government to manage affairs relating to the government, it is the business of subjects to mind only their own properties and interests. If my interest is not shaken, what have I to do with matters of government? They are not within my sphere. If the government does come to shake my particular interest, the law is open for me, and I may redress myself by law and when I intrude myself into other men's business that does not concern my particular interest, I am a libeller.

These I have laid down for plain propositions; now then, let us consider further, whether, if I will take upon me to contradict the government, any specious pretence that I shall put upon it shall dress it up in another form, and give it a better denomination? And truly I think it is the worse, because it comes in a better dress; for by that rule, every man that can put on a good vizard, may be as mischievous as he will to the government at the bottom: so that whether it be in the form of a supplication, or an address, or a petition, if it be what it ought not to be, let us call it by its true name, and give it its right denomination-it is a libel.

Then, gentlemen, consider what this petition is: this is a petition relating to something that was done and ordered by the government. Whether the reasons of the petition be true or false, I will not examine that now, nor will I examine the prerogative of the crown, but only take notice that this relates to the act of the government. The government here has published such a declaration as this that has been read, relating to matters of government; and shall, or ought anybody to come and impeach that as illegal, which the government has done? Truly, in my opinion, I do not think he should, or ought; for by this rule may every act of the government be shaken, when there is not a parliament de facto sitting.

I do agree, that every man may petition the government, or the king, in a matter that relates to his own private interest, but to

meddle with a matter that relates to the government, I do not think my lords the bishops had any power to do more than any others.

When the house of lords and commons are in being, it is a proper way of applying to the king: there is all that openness in the world for those that are members of parliament, to make what addresses they please to the government, for the rectifying, altering, regulating, and making of what law they please; but if every private man shall come and interpose his advice, I think there can never be an end of advising the government. I think there was an instance of this in king James' time, when by a solemn resolution it was declared to be a high misdemeanour, and next to treason, to petition the king to put the penal laws in execution.

Just. Powell. Brother, I think you do mistake a little.

Just. Allybone. Brother, I dare rely upon it that I am right: it was so declared by all the judges.

Sol. Gen. The Puritans presented a petition to that purpose, and in it they said, if it would not be granted, they would come with a great number.

Just. Powell. Aye, there it is.

Just. Allybone. I tell you, Mr. Solicitor, the resolution of the judges is, That such a petition is next door to treason, a very great misdemeanour.

Just. Powell. They accompanying it with threats of the people's being discontented.

Just. Allybone. As I remember, it is in the second part of the folio 35, or 37, where the resolution of the judges is, That to frame a petition to the king, to put the penal laws in execution, is next to treason; for, say they, no man ought to intermeddle with matters of government without leave of the government.

Serj. Pemberton. That was a petition against the penal laws.
Just. Allybone. Then I am quite mistaken indeed, in case it be so.
Serj. Trinder. That is not material at all which it was.

Mr. Pollexfen. They there threatened, unless their request were granted, several thousands of the king's subjects would be discontented.

Just. Powell. That is the reason of that judgment, I affirm it. Just. Allybone. But then I'll tell you, brother, again, what is said in that case that you hinted at, and put Mr. Solicitor in mind of; for any man to raise a report that the king will or will not permit a toleration, if either of these be disagreeable to the people, whether he may or may not, it is against law; for we are not to measure things from any truth they have in themselves, but from that aspect

they have upon the government; for there may be every tittle of a libel true, and yet it may be a libel still so that I put no stress upon that objection, that the matter of it is not false; and for sedition, it is that which every libel carries in itself; and as every trespass implies vi and armis, so every libel against the government carries. in it sedition, and all the other epithets that are in the information. This is my opinion as to the law in general. I will not debate the prerogatives of the king, nor the privileges of the subject; but as this fact is, I think these venerable bishops did meddle with that which did not belong to them: they took upon them in a petitionary, to contradict the actual exercise of the government, which I think no particular persons, or singular body, may do.

(S.T. xii. 183-433.)

X

THE CASE OF JOHN TUTCHIN

3 Anne, 1704.

[John Tutchin was tried for writing and publishing "false, malicious and seditious libels." The passages on which the indictment was based complained of mismanagement and peculation in the navy, and accused certain government officials of being bribed by France. The jury found him guilty of "composing and publishing," but not of "writing" the alleged libel. On appeal in arrest of judgment the verdict was quashed on technical grounds, but "it was never afterwards thought proper to try him again." Chief Justice Holt's charge to the jury has a historic and constitutional interest as showing the interpretation of the law of libel by a judge whose defence of popular liberties in Ashby v. White proved his courage and independence. See Broom, C.L. 517; Odgers, L. and S. 410422; Stephen, H.C.L. ii. 298-396; Hallam, C.H. iii. 166; S.T. xiv. 10951199.]

Gentlemen of the jury, this is an information that is preferred by the queen's attorney general against Mr. Tutchin for writing and composing, and publishing, or causing to be writ, composed or published, several libels against the queen and her government . . . So that now you have heard this evidence, you are to consider whether you are satisfied that Mr. Tutchin is guilty of writing, composing and publishing these libels. They say they are innocent papers, and no libels, and they say nothing is a libel but what reflects upon some particular person. But this is a very strange doctrine, to say, it is not a libel reflecting on the government, endeavouring to possess