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HE judgment in this case (Rex v. Brailsford and Another [1905] 2 K. B. 730; 21 T. L. R. 727) has not, perhaps, received the

attention it deserves, probably because it was delivered just before the Long Vacation. Its political or constitutional significance seems to have escaped everybody's notice except that of a small group of men who, just as the democratic sailors at Athens 'were at any time ready to attack oligarchy, real or imaginary,' are ever vigilant for liberty.

The undisputed facts are that about October, 1904, B obtained from the Foreign Office a passport for Russia for one M, who permitted a third person to use it and to sign his name on it as M 'the bearer' of it.

The passport was ultimately found on the dead body of a man who had called himself M and who had blown himself up with a bomb in St. Petersburg on February 28, 1905. B and M were undoubtedly acting in concert throughout (and it may be fairly assumed that the dead man was the person who had signed M's passport as bearer-for the bearer might be called upon at any moment to write his signature-and that he could not, with safety, have got into Russia with one in his own name).

For this they were indicted and fined £100 each. The offence alleged is undoubtedly obtaining a passport by the false representation that one of the obtainers intended to use it himself.

Now, it is not suggested here that in law they were not guilty; on the contrary, it is submitted that the existing law (probably) reached them 2. But if this is so, it makes the technical course

1 Thucyd. viii. 73.

2 i. e. the law of conspiracy, which is admittedly in a curious condition, and as to which there may be doubts even in this case. A second count charging an obtaining by false pretences (without conspiracy) was practically withdrawn. It is by no means clear why the Crown did not rely upon this count jointly indicting the defendants for obtaining property, viz. a passport, by false pretences or one charging them with conspiracy to obtain and obtaining by false pretences, &c. There is plenty of authority for holding such an instrument to be property or a chattel. In Perry's case in 1845 (1 Den. C. C. 69; cf. the similar cases: R. v. Clarke, 2 Leach 1030 in 1810; R. v. Vyse, 1 Moody C. C. R. 218 in 1829; R. v. Mead, 4 C. & P. 535 in 1831) the prisoner stole and cashed a cheque (which was afterwards assumed to be void for want of a stamp). He had been indicted not only for stealing the cheque but also in another count for stealing a piece of paper, value id. It was held unanimously by ten judges that the conviction on this latter count was good. The piece of paper makes an end of the question,' said Alderson B.; Cresswell J. thought

which was taken the more extraordinary, and it is that course only which it is proposed to examine here. Its main interest is derived from a doctrine which the Lord Chief Justice laid down-one of such moment that apart from any other professional point in the case, it deserves a separate inquiry.

He is reported1 to have said :—

'A motion was made by Sir Robert Reid for a new trial upon the ground that there was no sufficient evidence in support of the indictment, and that the jury had been misdirected, in that it had not been left to them to find that the act done might tend to public mischief. Without saying that there cannot be acts upon which an innocent construction might be put or that in some cases it might not be for the jury to find as a fact whether the act was innocent or not, we are clearly of opinion that no such argument can possibly be urged in this case. In criminal as well as in civil cases persons are responsible for the natural consequences of their acts. It was not disputed that there was abundant evidence that the defendants did combine to obtain a passport in the name of McCulloch with the intent that it should be used in Russia by some other individual and that in fact it was so used with their knowledge and consent. We are of opinion that it is for the court to direct the jury as to whether such an act may tend to the public mischief and that it is not in such a case an issue of fact upon which evidence can be given. Assuming the matter to relate to the issue of a public document by a public department of State and it is obtained by a false representation for an improper purpose-i. e. for use by a different person passing himself off as a bona fide holder-we are of opinion that it is injurious to the public and tends to bring about a public mischief. It is scarcely necessary to cite authority, but we would call attention to the reasoning of Lord Mansfield in Rex v. Vaughan (4 Burr. at p. 2499).'

Thus it is clearly laid down that the question of 'public mischief' or no public mischief is for the Court to decide and not for the jury. It is easy to see the immense political importance of this doctrineif ever certain moments in our history should repeat themselves.

that as it would be larceny to steal a blank cheque it would be no better if it were filled up. In Clarke's case the judges said: "These stamped papers... were, indeed, only of value to [the] owners; but it is enough that they were of value to them... The judges, therefore, are of opinion that to the extent of the price of the paper, the printing and the stamps they were valuable property belonging to the prosecutors.' The false pretence alleged would be the representation that M intended to go to Russia, whereas he had no such intention. Since the Queen v. Gordon in 1889 (23 Q. B. D. 354 in C. C. R.) no difficulty has been felt about the statement of the present existence of a state of mind being an allegation of an existing fact.

It could not have been said that the law had been strained, if such a count had been used in this case, for a fraud had undoubtedly been practised on the Foreign Office. It is only when the forms of law are employed where there is no substance of wrong that the public conscience revolts.

1 Rex v. Brailsford and Another [1905] 2 K. B. 746; 21 T. L. R. 730. The other members of the Court were Lawrance and Ridley JJ.

We are at once confronted with this dilemma: if 'public mischief' is a material averment in the indictment, how can it be withdrawn from the jury? if it is not, why this solemn argument whether it is for the jury or not? 1

The phrase in question, it must be observed, is brought on the scene in the indictment-probably one of the most ingenious ever framed and necessarily unique-which concluded 2:

'To the evil example of all others in the like case offending in contempt of our said Lord the King and his laws in fraud of the said regulations issued by and with the authority of the said Principal Secretary of State for Foreign Affairs to the injury, prejudice and disturbance of the lawful, free and customary intercourse existing between the liege subjects of our said Lord the King and the subjects of the said Tsar, to the public mischief of the said liege subjects and to the endangerment of the continuance of the peaceful relations between our said Lord the King and the said Tsar of Russia and their subjects respectively, and against the peace of our said Lord the King, his Crown and dignity.'

The various evils apprehended by the draftsman are conveniently summed up in 'public mischief.'

The Lord Chief Justice gives no authority whatever for the proposition that the question of 'public mischief' or not is not for the jury (though in the argument he is reported as saying, 'I should have thought that according to the authorities, the question of tendency was for the judge and not for the jury,' 21 T. L. R. 729). The reference to Vaughan's case has, apparently, got out of its place in the report, for there is not a syllable in it about a jury (and could not be, as it was a motion for a rule for an information); but it is very much in point on another part of the case, viz. whether any misdemeanour in law had been committed-as it deals with an attempt, in 1769, to bribe the First Lord of the Treasury (the Duke of Grafton) with £5,000 to procure an office-and it was to this that the Lord Chief Justice was certainly referring.

His lordship, it will be observed, lays down no general rule. He distinctly says that his opinion only touches this case; 'it is not in such a case an issue of fact,' can only mean in such a case as this. Moreover he expressly admits that 'in some cases' there is an issue of fact-of innocence or guilt-for the jury. What, then, distinguishes this case from other cases where public mischief is alleged? This case is novel (though, by the way, there must have been many other instances of passports fraudulently obtained);

1 It may be suggested with diffidence that in view of the abuse of the law of conspiracy in the past and the uncertainty of some of it in the present the Lord Chief Justice wanted the issue fought out on a broad ground visible to laymen as well as to lawyers. But the primary question here is unaffected by this point. 2 Ibid., at pp. 736-7 and 727-8 respectively.

there can, therefore, be no authority on the precise point. If there is no authority, except that of the Lord Chief Justice, for his precise proposition, is there any bearing on the point by analogy or implication or otherwise? Yes, there is the historic precedent in the law of libel and it is dead in the teeth of his lordship's theory.

'Before Fox's Libel Act [1792],' says Dr. Blake Odgers, 'it had come to be the rule that in a criminal case the judge and not the jury should decide whether or no the publication was a libel. On proof of publication of the innuendoes and of the other necessary averments, the judge would direct the jury to find the defendant guilty. . . . But that Act declares and enacts that on the trial of an indictment or information for libel the jury may give a general verdict of guilty or not guilty upon the whole matter put in issue before them1.'

Libel is not, indeed, fraud, but there is a clear analogy between the abolished practice of the bench in the former and the recent practice in the latter. Prove, said the judges before 1792, that the defendant said (and published) so-and-so and meant thereby so-andso and I will tell you whether he is guilty of libel or not. Prove, says the Lord Chief Justice in 1905, that the defendants did certain acts and I will tell you whether they tend to or constitute a public mischief and so whether your verdict should be guilty or not guilty. The reasons which led in libel to a clear restatement of the law-not in accordance with the judicial view-may be found · to apply to fraud.

It is, therefore, perhaps worth while to read the old classic discussion a little closely.


The controversy came to a head in the Dean of St. Asaph's case in 1784. The Dean was indicted for a seditious libel in that he had reprinted a 'Dialogue' (by the great Sir William Jones). Mr. Justice Buller-to put it very shortly-told the jury that the only questions for them were (1) did the defendant publish the pamphlet? (2) were they satisfied 'as to the truth of the innuendoes 3'? These, alleged in the indictment, were that in the Dialogue 'G.' meant Gentleman, ‘F.' Farmer, 'the King' the King of Great Britain, and 'the Parliament' the Parliament of Great Britain. If they were satisfied of these two points you ought to find him guilty.' But Erskine, who defended, had anticipated that the judge's view of the law would be the chief force against him, and had striven with all his eloquence to make the jury believe

1 On Libel, 4th ed., p. 680.

2 21 State Trials, 847.

3 The report adds in point of law'-a clear verbal inaccuracy, for the whole point of the judge's contention is that the jury have nothing to do with any question of law.

that they were the masters of the whole situation and could say finally Libel or no Libel. Their verdict was a moment' in our legal annals: they found the defendant 'guilty of publishing,' and after a long wrangle their verdict was entered 'guilty of publishing but whether a libel or not the jury do not find.' Erskine obtained a rule for a new trial on the ground of misdirection.

His famous speech in support of the rule might, mutatis mutandis, be read as an argument for the duty of the judge in the present case as contended for by the defendants' counsel; where Erskine speaks of the tendency of a publication to sedition, substitute that of certain acts to public mischief, and his reasoning might be transferred hither bodily. The rule was discharged. He thereupon moved in arrest of judgment, explaining to the Court that the only reason he had taken the other step in procedure first was 'the importance of the principle which it involved and the danger of the precedent it established—and was successful, upon grounds not relevant here.


'So,' says Lord Campbell, 'ended this famous prosecution. It seemed to establish for ever the fatal doctrine that libel or no libel was a pure question of law for the exclusive determination of Judges appointed by the Crown. But it led to the subversion of that doctrine, and the establishment of the liberty of the press, under the guardianship of English juries. The public mind was so alarmed by the consequences of this decision that Mr. Fox's libel bill was called for, which declared the rights of jurors in cases of libel; and I rejoice always to think that it passed as a declaratory act, although all the judges unanimously gave an opinion, in the House of Lords, that it was inconsistent with the common law.' Note the statement of a Lord Chancellor-that the Libel Act was only declaratory, i. e. all the time the common law was, so to say, on the side of juries. The principles which underlie it must surely apply here. We may try to educe some of them.

In 1670 occurred the trial 2 of Penn and Mead for Tumultuous Assembly.' They were acquitted to the great disgust of the Recorder of London, who fined each juryman 40 marks and sent him to Newgate till he paid. One, Edward Bushell, sued out a writ of habeas corpus and was promptly liberated (with his fellows) by the Common Pleas, over which Vaughan C.J. presided. In a great judgment, reported by himself, there is the following



'We come now to the next part of the Return, viz.: That the jury acquitted those indicted against the direction of the Court in matter of Law, openly given and declared to them in Court.

1 Lives of the Chancellors, Erskine, c. 178, p. 435. 26 State Trials, 951.

3 Vaughan's Reports, p. 135, at 143.

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