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Her grief he regards with a laugh and ha! ha! "Tis but little you know of the matter, Mama! (Rejoin'd the young rogue ;) don't you know it was I • Sent Phrosy to earth, with your dove from the sky? 'Sweet Phrosy, that same little hufsey who stole
From Hebe her grace, the soft grace of the soul. 'Nor grieve, dear Mama, that the fugitive Eu 'Gives one grace to earth, while the skies have their two. Your dove the conceals in the heaven of her breast, ⚫ And that seat of delight he mistakes for his nest. • To London they went, I directed them there,
And all that behold fhall adore and despair. • The poet shall pray, but his pray'r shall be vain, (He never knew pleasure who never knew pain,) To-morrow he dies; and I'll barb ev'ry thorn With the stings of her pride, and the points of her scorn; • In Laura's lov'd person strike home to his heart, • And EUPHROSYNE's self fhall determine the dart.'
A MODERN BELLE'S CONFESSION.
You may talk of soft passion, and love's potent dart,
Ye soldiers so brisk, and ye courtiers so gay,
Your beauty it is not, nor eyes darting fire,
We laugh in our sleeve at the am'rous gallant,
An equipage grand is the joy of our life.
ON THE PRIVILEGE AND POWER OF JURIES.
The King v. Robertson and Berry.
THIS cause is of importance, chiefly because of the peculiarity of the verdict returned by the jury, and the discussions to which that has given rise. The case was briefly as follows:
James Robertson and Walter Berry were indicted by the lord advocate for Scotland, of having been guilty, the said James Robertson of printing and publishing, and the said Walter Berry of publishing, with a wicked and malevolent intention, some time in the month of June last, a treasonable and seditious pamphlet entitled the Political Progrefs of Britain. Being brought before an afsize, the pannels pleaded not guilty of the charge; and the whole facts and circumstances being submitted to a jury, the gentlemen of the jury, after mature deliberation, returned a verdict all in one voice, "finding it proven, that the said James Robertson did print and publish, and the said Walter Berry did publish only, the pamphlet libelled on."
When this verdict was returned to the court, the counsel for the pannels contended, that from the nature of the verdict given, it became necefsary for the court to absolve the pannels, and dismiss them from the bar, on this footing, that the jury had not found any part of the indictment proven, that could imply the smallest fhare of guilt. They neither had found that the pamphlet libelled was of a treasonable or seditious tendency, nor that the pannels had printed or published it with a wicked or malevolent intention, but simply, that they had printed VOL. XIV.
and published the pamphlet libelled on; but there surely could be no harm in printing and publishing any writing which was not found to be of a dangerous tendency. The counsel even contended, if the jury had found the pamphlet libelled on was of that dangerous nature, could the pannels be declared guilty of a crime that inferred a severe punishment, since, for any thing that appeared, it might have been done with an innocent and harmless intention? The court demurred; ordered memorials to be given in to them before sentence fhould be pronounced, and postponed deciding upon it to a future day. When that day arrived, they again, without any cause afsigned, postponed it till another, and another, and another day; which gave reason to believe, that the court had met with difficulties it could not easily get over, hich excited the public attention in a high decree.
On Monday the 18th March, the court met for the fourth time upon this cause, and the judges separately delivered their opinions on this subject at great length; of which the following, it is hoped, will be found to be a fair abstract.
It seemed to be in general the opinion of the court, that since the jury had not thought proper to give a clear and decisive verdict, finding the whole matter li belled either proven or not proven, or finding the pannels guilty or not guilty; but had chosen to return a special verdict to the effect above stated: that therefore the court considered it in the same light as if the jury, declining to exercise the functions of jury men, had thus legally divested themselves of that character, and had devolved it upon the court, which was now called upon to step into the place of the jury, and to exercise the same functions in this case as the jury themselves were entitled to exercise, while they continued to act in that character,
*793• law intelligence. 287 Hence the learned judges thought it came within their province to examine all the facts and circumstances that could tend to enlighten their judgements and direct their consciences, in the same manner as a jury might, and ought to do, in the ordinary exercise of their legal powers.
On this principle, the learned judges entered upon a wide field of discussion, some of them occupying one ground, and some another, as the circumstances struck their fancy, so as to produce a considerable diversity of opinions. One of the learned lords could not find in the Scots law any statute, nor in the records of the Scotch courts any decisions, tending to fhow that the publishing a treasonable or seditious book was, either by statute or common law, punishable in Scotland. This he regretted as a defect in the Scotch law, which he wished to see corrected, either by a new law enacted by the legislature, or by a new law made by that court. Another of the learned judges strongly reprobated the idea of that court making any new law, (the former judge explained, he only meant they should give a decision that might serve as a rule to their succefsors,) but adduced no examples to prove that any statute existed, or that any former decision of that court could be adduced to show that they were authorised, by the common law of Scotland, to pronounce a definitive sentence of punishment in this case. Others of the learned lords, leaving this point out of view, proceeded to give their opinions as to the comparative degree of criminality that existed between the printing and the publishing any paper that was of a reprehensible nature. Some of them were of opi nion that the publishing of such a paper was a crime, if a crime at all, of a much lefs reprehensible nature than the printing of it; and therefore proposed that Mr Berry
fhould be freed from all punishment; but that Mr Robertson fhould be subjected to the pains of law; while others, on the contrary, represented the mere printing as an act of no criminality at all, but the publishing, as 2 crime of the greatest enormity *. Upon the whole, it appeared that the court in general were disposed to be more lenient to Mr Berry than to Mr Robertson.
When at length it came to the turn of the learned president of that court to speak, he said, that the great
* It deserves to be noted, that in the course of the reasoning, where the learned judges afsumed the province of jurymen, one cir. cumstance that seems to be of considerable importance in this cause never was brought into view, viz. the difficulty that may have occurred to the pannels, even if they should have attempted to judge of the criminality of the publication. The jury had not said there was any thing criminal in it; and there were no doubt many persons in the court, even at the time of the decision, who, if the pamphlet had been submitted to their judgement, would not have found any thing criminal in it. We all know that every man in this kingdom is fully authorised to point out, and to reprobate in the severest terms, abuses in the administration of government, wherever these exist; and they might have conceived that nothing else was contained in it. If the criminality of the pamphlet had been very obvious, it was not to be sup posed that the persons whose business it is to watch over the public tranquillity, could have required six months time to deliberate upon it before they could determine whether it could be reckoned of a dangerous tendency or not,-for so long at least the pamphlet had been published before any notice was taken of it. But if men whe, ex officio, are bound to watch over the public tranquillity, and whose business it is to understand things of this nature, were so much diffi culted in this case, can we be surprised that men, acting in the ordinary course of business, could see nothing improper in this publication? It is the business of jurymen to take into their view every circumstance that can tend to aggravate or to alleviate the criminality of the deed libelled; especially in such cases where the animus alone constitutes the criminality; and more particularly in regard to those cases where no discriminate line can be drawn to ascertain the precise bounds between praise worthy and guilty actions.