64 
judge; but the ablest judges have 
been’ sometimes decidedly of an 
opinion which has, upon farther 
investigation, been discovered to 
be erroneous; and it is to be con- 
sidered, that the effect of such a 
direction or recommendation would 
be unnecessarily to exclude all far- 
ther discussion of the matter of 
law in the court from which the 
record of Nist Prius was sent, in 
courts of error, and before your 
Lordships in the dernier resort. 
Very clear indeed, therefore, ought 
to bethe case in which such a di- 
rection or recommendation shall be 
given. In a criminal case which 
may in any degree be doubtful, it 
must be a very great relief to a 
judge and jury, and a great ease 
to them in the administration of 
criminal justice, to have the means 
of obtaining a better and fuller in- 
vestigation of the doubt, upon the 
solution of which a right verdict 
or a right judgment is to depend, 
A special verdict would, in many 
cases, be the only means where 
the offence is described by some 
one or two technical terms compre- 
hending the whole effence, the 
law and-the fact combined: such 
as the words ‘“ feloniously did 
steal.” The combination must be 
decomposed by a special verdict, 
separating the facts from the legal 
qualities ascribed to them, and pre- 
senting them in detail to the eye 
of the judge, to enable him to de- 
clare whether the legal quality 
ascribed to them, be well ascribed 
to them or not. There may 
be a special verdict in all cases 
where doubts arise on the matter 
of law; but it is not necessary 
in all cases. In some criminal pro- 
ceedings (the proceedings in libel, 
and the publication of forged pa- 
APPENDIX: TO 
pers, for instance) some of the’ 
facts are detailed in the indictment; 
and if the doubt in Jaw should 
happen to arise out of the fact so 
detailed, we say it is upon the re- 
cord, The question might have 
been discussed upon Demurrer, 
withont going to a jury at all; and 
after verdict it may be discussed on 
a motion in arrest of judgment. 
In such cases a special verdict is 
not necessary: the verdict Guilty, 
will have the effect of a special 
verdict without the expence and 
delay of it, establishing all the facts, 
and leaving the question of law 
open to discussion. There are 
three situations in which a defend- 
ant, charged with a libel, may 
stand before a judge and jury in 
a court of Nisz Prius. First, the 
matter of Jaw may be doubtful ; 
in that case there ought to be a 
special verdict, or a verdict which 
shall operate as a special verdict. 
Secondly, the case may, in the 
opinion of the judge, be clear a- 
gainst the defendant. If the ver- 
dict is special in form or in effect, 
he has no reason to complain: his 
case comes before the court from 
which the record is sent, without 
the prejudice of an authority a- 
gainst him.—The third situation is, 
that the opinion of the judge may 
be clear in favour of the defendant. 
In that case, whenever it. shail 
happen, we have offered it as our 
opinion, that it will be competent 
and legal for the judge to direct an 
acquittal. 
Your Lordships’ fourth question 
is, ‘‘ Is a witness produced before 
a jury ina trial, as above, by the 
plaintiff, for the purpose of proving 
the criminal intentions of the wri- 
ter; or by the defendant, to rebut 
the imputation, admissible to be 
heard 
