same light with the church of England, that she was not in the situation to which, as part of the established religion of the country, she was entitled? The very name of the test ought alone to supersede all these arguments. If they were to say with a right honourable gentleman, to whose argument he had before alluded, that the test meant nothing but a profession, that he who took it entertained no hostile ideas against the establishment; that he was ready to communicate with either church; that he who was of the church of Scotland when out of office, might communicate with the church of England when in; let that explanation be given, by which neither religion nor politics would be much benefited.

Notwithstanding what a learned gentleman had said, with respect to the origin of the present motion, he was satisfied from what he had heard, that it had originated, as stated by the honourable baronet who moved it, in the unanimous opinion of the general assembly, that the test act, as appeared to members of the church of Scotland, was a grievance, and their unanimous vote to apply for redress. It might, for any thing he knew, be considered in Scotland as a solecism to apply to parliament, when they had reason to believe that his majesty's ministers were not inclined to favour their application: but it was not, and he trusted never would be, considered as improper or unseasonable in this country, for any subject or class of subjects, to apply to parliament for relief from a grievance, whatever might be the disposition of those in power. It had been farther observed, that the application came from the clergy of Scotland only; and it was asked, why the sense of the people had not been taken? After all they had lately heard, of alarms in the minds of the people, (vain alarms, in his opinion!) was it wise, was it politic, was it like statesmen, when a proposition came before them from a respectable body, founded on sense and reason, to set it afloat among the people, and desire them to hold public meetings, and discuss its merits for the instruction of the legislature? The history of the union afforded no rule on the subject. Both parties were afraid to come fairly to the question. The great men of that period were obliged to yield to the prejudices of the times. The House would recollect how far short of their own opinions they had been obliged to set up in relieving Roman catholics. Was it, then, to be wondered at, that eighty years ago Lord Cowper, and the statesmen with whom he acted, should have yielded to the same sort of necessity?

With regard to religion, there were few acts on the statute book which ought not to be completely expunged. Instead

of that, they busied themselves in explaining, mitigating, or suspending; and whenever the only proper remedy was mentioned, the answer was, "they are not executed;" the very worst character that could be given of them! This had been the answer to all the propositions that had been lately made. Ought not the House at last to see, that laws, unfit to be.executed, that were sometimes the instrument of partial oppression, but never of public benefit, were not fit to remain? They were well described by a learned and orthodox prelate as "dangerous weapons laid in the way, which no good man would use, and which ought not to lie there as a temptation to the bad." Mr. Fox said, that he was a complete friend to religious establishments, on the same ground that he was a friend to toleration. He thought it highly proper that a system of instruction for the improvement of morals should be provided for in every country; but highly proper also that those who dissented from that system should incur no penal ties, should suffer no disabilities on account of their dissent, because, to admit of religious instruction, whatever character it assumed, as far as it contributed to inculcate morals, was to enlarge the sphere of religion. Many eminent divines of the church of England were of this opinion. Among others, Dr. Paley, a most orthodox writer, in his chapter of Religious Establishments and of Toleration, after discussing all the branches of the subject, had concluded with approving of a church establishment, joined to a complete toleration of all dissenters. *

To get rid of a charge that was frequently put on those who argued as he did, he should wish to know precisely, whether the test was a political or a religious act. When he called it a political act, he was told that it was an act for the security of religion, and, as such, by the union was made perpetual. When he called it a religious and persecuting act, he was told that it was a mere regulation of civil government, and had nothing to do with religion. It had, indeed, nothing to do with religion in its origin. It was intended merely to keep out papists an unwise expedient, in his opinion, to attain an unwise end; and now that the object of it existed no longer, it could be considered only as an instrument of religious persecution. The church of England could never be in danger but from building her safety on intolerant principles, and making that a pretext for opposing the extension of religious freedom, This, however, was gaining ground

*See Paley's Moral Philosophy, Vol.ii. p. 344.

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in other countries, and would continue to do so. try, he hoped, would not be the last to adopt it. tion of toleration he should always be ready to meet, whenever it was fairly and properly brought forward, and the oftener, he thought, the better; for there was no question that gained more by discussion-no question, the discussion of which contributed so much to the improvement of religion, of morals, and of happiness. On this general ground, he supported the motion, as well as on the particular grounds he had already stated.

One argument that might be urged against it, Mr. Fox said, he wished yet to obviate. If it were doubtful whether the test act did apply to members of the church of Scotland, it might be said, why not try the question in the regular course of law? This might, indeed, be proper in a civil case, but could hardly be done under a penal statute. If it were doubtful whether a particular act was a capital offence, it would be rather hard to say, Do you commit the act, and whether you are hanged or acquitted, the law will be clear. If any gentleman were disposed to try this question, and the law should be explained to be against him, he would be condemned to a fine of five hundred pounds, which many gentlemen might readily pay; but the rest of the penalty, to be rendered incapable of holding any public office ever after, of being an administrator or executor, or of receiving a legacy, was rather too much for any gentleman to be expected to risk. There could be no objection to enquiring how the law stood, and the declaration of the House might be considered as a safe guide. Mr. Fox concluded with declaring that he would give his hearty support to the motion.

MR. Fox's LIBEL BILL. *

May 20.

So early as the 21st of February, Mr. Fox gave notice of two questions which it was his intention to bring forward in the course of the present session. He declared he had not quite

*The declaratory statute 32 Geo. III. c. 6o. (says Mr. Howell, State Trials, vol. viii. p. 36.) has fully established the right of juries in criminal prosecutions for libels, to give a general verdict of guilty or not guilty, upon the whole matter put in issue upon the indictment or information. This statute originated in the House of Commons, where the motion for the bill was made by Mr. Fox, and seconded by Mr. Erskine. Most undoubtedly the success of the bill is in a very high degree to be attributed to the inflexible constancy and unremitted zeal, with which the latter of these two great men had exerted the vast powers of his eloquence in maintenance of those rights of juries, which the statute asserts. Notwithstanding it had been declared by magistrates of the greatest learning, that the establishment of such a system would produce infinite confusion and disorder; nevertheless, so it is, that since the indisputable establishment of this system, no confusion whatever has occurred, the functions of judges and juries have been executed within their respective limits; without any competition for jurisdiction; to the advancement of justice, and to the dignity of its administration. The change which has been operated by the statute cannot be more perspicuously stated, nor can its beneficial effects be more happily illustrated, than in the following passage, which I extract from a note on the subject of the trial of the Dean of St. Asaph,' in the Speeches of the honourable Thomas Erskine' (now Lord Erskine) &c. vol. i. p. 382.

"The venerable and learned chief justice (Lord Mansfield) undoubtedly established by his argument, that the doctrine so soon afterwards condemned by the unanimous sense of the legislature, when it passed the Libel Act, did not originate with himself; and that he only pronounced the law as he found it, established by a train of modern decisions. But, supported as we now are by this judgment of parliament, we must venture to differ from so truly great an authority. The Libel Bill does not confer upon the jury any jurisdiction over the law, inconsistent with the general principle of the constitution; but, considering that the question of libel or no libel is frequently a question of fact rather than of law, and in many cases of fact and law almost inseparably blended together; it directs the judge, as in other cases, to deliver his opinion to the jury upon the whole matter, including of course the question of libel or no libel, leaving them at the same time to found their verdicts upon such whole matter, so brought before them as in all other criminal cases. The best answer to the apprehensions of the great and eminent chief justice, regarding this course of proceeding, as then contended for by Mr. Erskine, and now established by Mr. Fox's Libel Act, is the experience of seventeen years since that act passed.

"Before the statute, it was not difficult for the most abandoned and profligate libeller, guilty even of the most malignant slander upon private men, to connect his cause with the great privileges of the jury, to protect Innocence. Upon the judge directing the jury, according to the old

settled in his own mind in what form he should bring on his questions, but he had not the smallest objection to state, that one of them would be with respect to the conduct of the court of King's Bench in giving judgment and sentence upon libels, and the other relative to informations in the nature of quo warranto. As he was at present advised, he believed the proper mode would be, in one case, to move to refer the question to the consideration of their grand committee for courts of justice, and to move' the other in the House. He said, he had thus plainly stated the nature of his two objects, in order that it might not be thought that he had any intention to take the House by surprize. The 20th of May was afterwards fixed upon. On which day,

Mr. Fox rose to make his promised motion, for a grand committee on courts of justice, to enquire into some late decisions of the courts in cases of libel. He began a most able and argumentative speech, by declaring, that he was perfectly convinced, that every gentleman who heard him, was so well acquainted with the duties that belonged to the House of Commons, and its peculiar function constantly to watch with care every part of the executive government of the country, that it would be unnecessary for him to use any words in order to shew that he was not bringing under the consideration of the House, any thing that did not fall within the province of its duty. He said, he was not going to attempt "any thing like innovation, but was calling the attention of the House to one of its most constitutional and important duties,

system, to find a verdict of guilty upon the fact of publication; shutting out altogether from their consideration the quality of the matter published, ingenious counsel used to seize that occasion to shelter a guilty individual under the mask of supporting great public right; and juries, to show that they were not implicitly bound to find verdicts of Guilty upon such evidence alone, were too successfully incited to find improper verdicts of acquittal: but since the passing of Mr. Fox's Libel Act, when the whole matter has been brought under their consideration, when the quality of the matter published has been exposed when criminal, and defended when just or innocent, juries have listened to the judge with attention and reverence, without being bound in their consciences (except in matters of abstract law), to follow his opinion, and instead of that uncertainty anticipated by Lord Mansfield, the administration of justice has been in general most satisfactory, and the public authority been vindicated against unjust attacks, with much greater security, and more supported by public opinion, than when juries were instruments in the hands of the fixed magistrates; whilst at the same time, public liberty has been secured, by leaving the whole matter in all public libels to the judgment and consideration of the people. This reformed state of the law, as it regards the liberty of the press, is now so universally acknowledged, that the highest magistrates have declared in the House of Lords, that no new laws are necessary, either to support the state, or protect the people,"