The jury had not said “not guilty.” Neither had they declared the Reverend William Davies Shipley guilty of libel. At Shrewsbury, on the sixth of August 1784, the jurors had chosen a narrower formula: guilty of publishing. In this cause, the manner in which a few words of the jury were set down would weigh far heavier than reams of polemical dispute.
Shipley was Dean of St Asaph. He was charged with having caused to be printed and circulated a dialogue by Sir William Jones, then a judge of the Supreme Court of Bengal, entitled Principles of Government, in a Dialogue between a Gentleman and a Farmer. The tract staged an encounter between two interlocutors, a gentleman and a yeoman, discoursing upon government and political rights. The Crown represented it as seditious; the defence was to maintain that a critique of the administration of public affairs did not, of itself, constitute a criminal libel.
The trial came on before Mr Justice Buller at the Shrewsbury Assizes. The jury was called upon to consider several questions which the debates would presently sunder: had the tract been published by Shipley? Did the incriminated passages bear the meaning imputed to them by the prosecution? And, above all, was the verdict to determine whether the writing was legally a libel? The boundary between the fact of publication and its legal character might appear narrow; it was nevertheless to govern what the court could ultimately make of the verdict.
In the course of the trial, the jurors heard the defence offered by Erskine. Borrow’s narrative reconstructs this contest fought upon the frontier between political critique and seditious attack. The prosecution contended that the dialogue was aimed at the reigning King and the present Government, tending directly to incite sedition. Erskine brought his auditors back to the very terms of the text, denying that every imputation of injustice could be transmuted into proof of libel. The dispute turned, therefore, not merely upon the words of the farmer and the gentleman, but upon the authority of those who sat in judgment to fix their criminal import.
Buller gave his directions to the jury. He dismissed at the outset those witnesses brought forward to portray Shipley as a peaceable man: his general character was no answer to the issue before the court. The judge conceded to Erskine that “where the law ends, tyranny begins,” and then divided the inquiry into three distinct branches: the fact of publication, the truth of the innuendoes on the record, and the point of law—namely, whether the text was a libel. The first two alone lay within the province of the jurors; the last remained reserved for the court upon examination of the record. Law and fact were not to be confounded. Yet when the men returned, their verdict left the matter open. They declared Shipley “guilty of publishing only.”
The word only instantly provoked a colloquy. Buller inquired of the jurors whether they accepted the innuendoes laid in the indictment: that “G.” denoted the gentleman, “F.” the farmer, and that the references to the King and Parliament meant the King and Parliament of Great Britain. They answered that they did. Erskine reiterated that they found Shipley guilty of publication only. A juror intervened to state that they did not judge whether the pamphlet was a libel. Buller explained that a finding confined to publication left the question of law open, whereas the word only might render their verdict imperfect. The jurors insisted: they did not determine the question of libel, but left it to the court.
The dispute grew so sharp as to reach a command of silence. Erskine demanded that the word remain on the record; Buller ordered him to take his seat, warning that otherwise he must proceed in another manner. Counsel replied that he might proceed as he pleased. Borrow records this passage without rhetorical embellishment: the threat of the magistrate and the defiance of the advocate suffice. Amid their contention, the jurors still sought to define what they had intended to express. One of them shifted the term: guilty only of publishing, and not guilty of publishing only. Buller rejoined that it was one and the same thing.
Erskine, however, had not exhausted his objection. Supposing the court should refuse to arrest judgment, would he still be permitted, when addressing the question of punishment, to maintain that Shipley had published without a seditious intention? Might not the verdict, shorn of its qualification, shut him out from that defence? The jury repeated that they pronounced neither one way nor the other upon the sedition. They did not say the pamphlet was innocent; they declined to decide the point. It was these limits, rather than the contested particle, that the clerk ultimately inscribed: “Guilty of publishing; but whether it is a libel or not, the jury do not say.” Thus the hearing closed, leaving two antagonists defending each his own fidelity: Buller to the partition of law and fact, Erskine to the words actually uttered by the jurors.
In November, Erskine returned before the court. On the fifteenth, he moved for a new trial. He contended that the directions delivered to the jury had been erroneous, and that no evidence of sedition had been laid before them. Lord Mansfield answered that the jury decided the facts and the judge the law, a separation he affirmed had been maintained by the courts since the Revolution; the verdict had not confounded them. The application was discharged on the following day. The other judges concurred with Mansfield. Willes insisted upon the distinct functions of judge and jury. Ashurst addressed the question of intention: how was it to be known except through outward acts? A soothing declaration could not, in his view, suffice to undo the import of a course of conduct. The testimony that had described Shipley as a peaceable subject had not, therefore, disposed of the criminal issue. Erskine had sought an error in the instructions to the jury; the court discovered therein only its established doctrine, and refused to try the cause anew.
There remained yet another course: to move the court in arrest of judgment—that is, to rule that no legal penalty could follow upon the verdict as it stood upon the record.
On the twenty-second of November, Erskine moved in arrest of judgment upon two grounds: that the verdict was insufficient to warrant a conviction, and that the publication was not a punishable libel. The clerk read the record; the terms enrolled were not those Erskine affirmed he had heard. Mansfield nevertheless held the entry to be correct, the jurors having intended to reserve the point of law for the bench. He distinguished a pamphlet not defamatory of the King or an individual from a writing he deemed seditious, and even bordering upon treason. To his mind, the piece incited the subject to petition for parliamentary reform and to take up arms should the petition be rejected. Yet he observed that the indictment did not connect these passages to the political condition of the time by the necessary averments. The application of the text to the present age, he held, must appear upon the face of the indictment itself; though understood by all, the connection could not be supplied after the fact. Willes, Ashurst, and Buller himself concurred in this opinion, and judgment was arrested. The very judge who had resisted Erskine over the entry of the verdict thus conceded that this other objection barred the penalty. For Shipley, the distinction between the two modes of defence had become the difference between losing a motion and walking free from the prosecution. Borrow concludes that the whole of the proceedings against the Dean were quashed. The Dean escaped punishment; the debate over the prerogatives of the jury remained open.