Introduction to

Criminal Libel and the Duty of Juries

by Jon Roland

I was delighted to discover on a library shelf a facsimile reprint of the three essays, two by Joseph Towers, from 1764 and 1784, and one by Francis Maseres, from 1792, on the duty of juries in criminal libel trials, but this small collection lacked a proper title, any indication of an editor, or an introduction, so I felt the need to provide these when I rendered the collection for publication online.

For the most part these essays speak for themselves, and present what might be termed the Camdenian doctrine of jury process, named for Lord Camden, as opposed to the Mansfieldian doctrine, named for Lord Mansfield. At the time of the American Founding, the prevailing doctrine in the United States was Camdenian, and that is the doctrine of interpretation that must therefore be considered authoritative in interpreting the Constitution of 1787 and the Bill of Rights of 1792 with regard to juries and due process.

In the United States today we do not have laws making "libel" a crime, and higher standards for proving libel when the plaintiff is a public official or other public person, but the history of the United States does not lack for other ways of attempting to do the same thing. Beginning with the Sedition Acts of 1798, through those of 1917, to those which are still on the books today, to charges of "conspiracy", "terrorism", or simply "contempt of court" for failing to disclose sources of journalistic investigators, in the Age of the Internet when arguably everybody is a journalist, raise the same general kinds of issues discussed in these essays by Towers and Maseres. The names change but the issues endure.

One point that is sometimes missed in historical analysis of due process, and that is only obliquely suggested in these essays, is that in this period arguments of law were, in general, made in the presence of the jury in jury trials. The later practice of filing written briefs for the judge to read outside the presence of the jury had not yet emerged. Legal argument was generally oral, and delivered to the full court, including the jury, who, even if they were instructed by some English judges to ignore the legal arguments and only decide the facts, at least had the benefit of having heard the legal arguments, and being informed about what they were instructed to ignore. In the United States, it was not then considered proper due process to give such instructions to the jury when a general verdict, such as "guilty" or "not guilty", was sought.

This line of historical analysis therefore raises the question of whether a defendant in a criminal jury trial is being accorded his due process rights if all issues of law are not argued in the presence of the jury. It also reminds us that the jury system was established because judges and prosecutors can't be trusted.

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Original date: 2002 February 16 — Updated: 2002 February 16