BOSWELL. In the second edition, published five years after Goldsmith's death, the story remains. In a foot-note the editor says, that 'he has been credibly informed that the professor had not the defect here mentioned.' The story is not quite as Boswell tells it. 'Maclaurin,' writes Goldsmith (ii. 91), 'was very subject to have his jaw dislocated; so that when he opened his mouth wider than ordinary, or when he yawned, he could not shut it again. In the midst of his harangues, therefore, if any of his pupils began to be tired of his lecture, he had only to gape or yawn, and the professor instantly caught the sympathetic affection; so that he thus continued to stand speechless, with his mouth wide open, till his servant, from the next room, was called in to set his jaw again.'
[46] Dr. Shebbeare (post, April 18, 1778) was tried for writing a libellous pamphlet. Horace Walpole says:--'The bitterest parts of the work were a satire on William III and George I. The most remarkable part of this trial was the Chief Justice Mansfield laying down for law that satires even on dead Kings were punishable. Adieu! veracity and history, if the King's bench is to appreciate your expressions!' Memoirs of the Reign of George II, iii. 153.
[47] What Dr. Johnson has here said, is undoubtedly good sense; yet I am afraid that law, though defined by Lord Coke 'the perfection of reason,' is not altogether with him; for it is held in the books, that an attack on the reputation even of a dead man, may be punished as a libel, because tending to a breach of the peace. There is, however, I believe, no modern decided case to that effect. In the King's Bench, Trinity Term, 1790, the question occurred on occasion of an indictment, The King v. Topham, who, as a proprietor of a news-paper entitled The World, was found guilty of a libel against Earl Cowper, deceased, because certain injurious charges against his Lordship were published in that paper. An arrest of Judgment having been moved for, the case was afterwards solemnly argued. My friend Mr. Const, whom I delight in having an opportunity to praise, not only for his abilities but his manners; a gentleman whose ancient German blood has been mellowed in England, and who may be truely said to unite the Baron and the Barrister, was one of the Counsel for Mr. Topham. He displayed much learning and ingenuity upon the general question; which, however, was not decided, as the Court granted an arrest chiefly on the informality of the indictment. No man has a higher reverence for the law of England than I have; but, with all deference I cannot help thinking, that prosecution by indictment, if a defendant is never to be allowed to justify, must often be very oppressive, unless Juries, whom I am more and more confirmed in holding to be judges of law as well as of fact, resolutely interpose. Of late an act of Parliament has passed declaratory of their full right to one as well as the other, in matter of libel; and the bill having been brought in by a popular gentleman, many of his party have in most extravagant terms declaimed on the wonderful acquisition to the liberty of the press. For my own part I ever was clearly of opinion that this right was inherent in the very constitution of a Jury, and indeed in sense and reason inseparable from their important function. To establish it, therefore, by Statute, is, I think, narrowing its foundation, which is the broad and deep basis of Common Law. Would it not rather weaken the right of primo-geniture, or any other old and universally-acknowledged right, should the legislature pass an act in favour of it? In my Letter to the People of Scotland, against diminishing the number of the Lords of Session, published in 1785, there is the following passage, which, as a concise, and I hope a fair and rational state of the matter, I presume to quote: 'The Juries of England are Judges of law as well as of fact, in many civil, and in all criminals trials. That my principles of resistance may not be misapprehended and more than my principles of submission, I protest that I should be the last man in the world to encourage Juries to contradict rashly, wantonly, or perversely, the opinion of the Judges. On the contrary, I would have them listen respectfully to the advise they receive from the Bench, by which they may be often well directed in forming their own opinion; which, "and not anothers," is the opinion they are to return upon their oaths. But where, after due attention to all that the judge has said, they are decidedly of a different opinion from him, they have not only a power and a right, but they are bound in conscience to bring in a verdict accordingly.' BOWELL. The World is described by Gifford in his Baviad and Marviad, as a paper set up by 'a knot of fantastic coxcombs to direct the taste of the town.' Lowndes (Bibl. Man. ed. 1871, p. 2994) confounds it with The World mentioned ante, i. 257. The 'popular gentleman' was Fox, whose Libel Bill passed the House of Lords in June 1792. Parl. Hist. xxix. 1537.