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this refpect, fhould be taken away, or at leaft afcertained; and that the Crown and the fubject should stand precifely upon a level. Mr. Fox faid, he had ftated all the matter that occurred to him as the ground for going into a Committee. If any gentleman had any additional grounds, he could with him to ftate them.

Mr. Fox proceeded to obferve, that there was, on the fubject of libels, one great and popular topic, which he had omitted, without having faid any thing upon it. He declared he had not forgotten it, but had purpofely omitted it. It was a queftion that had been much canvaffed in the world, viz. the doctrine that truth was not only not a juftification, but a libel was more a libel because it was true. With refpect to this question, he fhould not meddle with it, becaufe he conceived it to be a moft difficult queftion. To say that truth was not fometimes a juftification, would be very extraordinary indeed; and yet there certainly were cafes in which truth would not be a juftification but an aggravation. Suppofe, for inftance, a man had any perfonal defect or misfortune, any thing difagreeable about his body, or was unfortunate in any of his relations, and that any person went about expofing him on thofe accounts, for the purpose of malice, and that all thefe evils were day after day brought forward, to make a man's life unhappy to himself, and tending to hold him out as the object of undeferved contempt and ridicule to the world, which was too apt to confider individuals as contemptible for their misfortunes, rather than odious for their crimes and vices? Would any man tell him, that in cafes of that fort, the truth was not rather an aggravation? On the other hand, in queftions relating to public men; verity, with refpect to public measures, ought to be held to be a complete juftification of a libel, if it could be called a libel in that fituation. Mr. Fox faid farther, that if any man had ftated any thing that was of great importance, upon its being taken amifs by another, the truth of it, if it could be proved, was not only a mitigation, but, in his mind, a complete juftification. He would afk, therefore, how long were they to be negligent about the rights of juries? It behoved the House to be anxious to establish thofe rights, and by that means to fecure the liberty of the prefs. He conceived, that the best way would be, to permit every defendant to prove the truth of a libel, if he thought proper? and then to confider what effect that ought to have, whether it amounted to a juftification or otherwife, and to let it affect the judgement either way in proportion. He did not, however, mean to bring this forward, unless it met with the general concurrence of the House. God knew what he had ventured to bring forward was mucli beyond his ftrength,

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and he should not have brought it forward, if he had not thought it a duty which he owed to the public, and the. more particularly at this time, when it was the fashion to go into difcuffions on the theory of the conftitution for various purposes.

Mr. Fox faid, they ought to confider the main spring upon which the conftitution turned. They all knew there were two or three great fprings upon which it turned, and it was the indifpenfible duty of that Houfe, as far as it could, to keep those springs in perfect ftrength and vigour. He thought he faw, amidst all the minuter parts, the two most important of these main fprings, viz. the reprefentation of the people through the medium of that Houfe, and the juridical power of the people through the medium of juries; and it appeared to him, that even although the other parts of the fyftem fell into diforder, yet, if these main fprings were preferved in full vigour, the reft might be repaired; but if thefe two fprings gave way, all the reft muft fall completely to deftruction. Mr. Fox declared, that he had always confidered the powers and privileges of that Houfe to be that part of the conftitution which they were obliged to watch over, and obliged to maintain. Another thing of infinite importance was the right of the trial by jury. This, he said, could not be complete, unlefs, in every criminal cafe, where the law and fact were mixed, the jury were the judges; and unless the intention was to be decided by the jury, and not by men who could only judge by means of books, and many fubtleties and diftinctions, but could never find out the heart of man, and diftinguifh between his actions.

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Mr. Fox begged that he might not be told by any gentleman, you have done much right and much wrong, but on account of what is wrong you fhall not obtain what is "good." He faid, he was willing to take one half, nay ene fourth, or any thing that he could get, rather than lofe the whole. He thought he had done his duty in bringing forward the bufinefs, and he hoped there would be a majority for going into the Committee. Mr. Fox here took notice of a fimilar motion that had been brought forward in the Houfe of Commons fome years ago by that found conftitutional Lawyer, Mr. Serjeant Glynn, who had brought forward the fubject in a more mafterly and fcientific manner, than he was able to do. He confeffed he had been one of those who voted against that motion, which was rejected on account of certain doubts that were entertained concerning it, and a fear that it might weaken the authority of the Court of King's Bench, &c. but upon reflection he now thought his reafons had been weak and ill founded. In the cafe of the King against Tophamn, Mr. Fox faid, there was fome colour VOL. XXIX.

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for the Chief Juftice agreeing with him. On the prefent occafion, he was glad to grafp at any thing; and the House muft now speak out plainly, and fay whether they meant to confirm the rights of juries, or to vote against the rights of juries, and to add the weight of Parliament to the weight of the Court of King's Bench. Mr. Fox declared, before he fat down, that he had intended to bring forward this business in the courfe of the laft Parliament, but had been prevented by other bufinefs; and another confideration for his deferring it, was, the expectation and hope of his having the able affiftance of his honourable and learned friend, (Mr. Erfkine) an expectation and hope in which he had not been difappointed. His honourable and learned friend would now have an opportunity to crown the work which he had fo nobly begun, and give his fanction to an act of Parliament to insure to his country, and to pofterity, the real existence of those rights and privileges, the theory of which he had formerly defended fo eloquently, fo ably, and, in point of reason, so triumphantly, though in point of evènt, unfortunately and unfuccefsfully.

Mr. Fox concluded his fpeech with moving, "That the "Grand Committee of Courts of Juftice do fit on Tues"day next."

Mr. Erskine, in rifing to fecond Mr. Fox's motion, deErskine, clared his inability fully to exprefs the gratitude which he, as one of the public, felt to the right honourable gentleman who had juft fat down, for this inftance of the many endeavours which he had made to establish the principles of the conftitution upon their true bafis, and to promote the best interefts of the country. The panegyric which had been made on the arguments that he had brought forward on a former occafion, muft indeed lofe much of its force, when thofe were compared with the arguments which had now been advanced, in a fpeech, not more to be admired for the fplendour of its eloquence, than for the wonderful order and arrangement of its parts, the ftrong proof of accurate memory that it evinced, the forcible manner in which the found conftitutional principles it contained, had been stated, and impreffed on the minds of all who heard it. Having premised this, Mr. Erfkine obferved that the objects of the prefent motion were two: first, the practice of the Courts with regard to libels; and fecondly, the information by quo warranto. The motion, Ire trufted, would be unanimously adopted, from the declaration of his right honourable friend, that whatever might be the opinion of gentlemen, with regard to a particular profecution, he trufted it would not interfere with their fenfe of the neceffity of attending to the great and general object. Nothing was fo well calculated to prove

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how much this unanimity might be expected, as the circumstance, that, though he differed with his right honourable friend with regard to the particular prosecution, he now rose to fecond his motion. He meant, however, likewife, to differ in his mode of treating the fubject. His right honourable friend had taken it analytically; he meant to take it the other way, and inftead of reafoning from any particular cafe to the original caufes, to begin from the origin, and then trace it in its effects. The pofitions with which he would fet out were,

ift, That the law of libels was repugnant to the principles, and inconfiftent with the practice, of criminal ju tice.

2dly. That it cramped the liberty of the prefs, promoted its licentioufnefs, and brought our most valuable privilege of juries into continual danger.

3dly, That the evil was in its prefent ftage incurable.

Lastly, that the fubject was too complicated for any indiidual to bring in a bill which should fully anfwer the purpofes propofed, and required immediately the interference of the House.

Mr. Erfkine faid, he fhould beg to enter his proteft, in what he was going to fay, against any idea of conveying blame or cenfure on the conduct of any of the Judges. So far was he from entertaining any intention of this fort, that he was convinced, that if his Majefty fhould place him in the fame fituation, he could not, confiftently with the conAitution, adopt any other line of conduct, than that which was pursued by them.

Libels, he obferved, might be divided into three claffes. ift, Those which were fubjects of civil action, as thofe which affected lives, property, liberty, or which occafioned any actual damage. 2dly, Those which were punishable by indictment; which included all that might any way difturb the public peace. The third clafs took in thofe libels which were of most important confideration, particularly all those which had a tendency to fow fedition. The law of libels, by civil actions, he faid, was as ancient as the law itself. Reputation ought to be fecured by law. A good name was a property not lefs valuable than an eftate; and which, in cafe of any injury, ought equally to admit the means of redrefs. The Judges, no doubt, were the depofitaries of law in matters of property. But what had a tendency to undermine and utterly deftroy the conftitution, was the circumftance of confounding crimes with civil actions. It was this circumstance, Mr. Erfkine obferved, which brought into hazard our most invaluable privilege of juries, a part of the

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conftitution which ought to be looked on with the most peculiar reverence. The jury he regarded as the Commons Houfe of the judicial fyftem, as affording that fafeguard to the people, which excluded the encroachments of power, and the injuries of oppreffion. Government, it was well known, was now to be fupported upon the foundation of reafon. It derived its facred nature from the advantages which it produced to its fubjects, and maintained its authority from the bleffings which were enjoyed under its administration. The monarchy of Great Britain, faid Mr. Erfkine, for which no man could entertain a higher refpect than he did, would not exift one hour, if the fpirit of the enquiry of his right honourable friend was not adopted. Yet this monarchy he would wifh to be immortal. It poffeffed all the fpeedy execution of the moft abfolute monarchy, while the freedom of the moft perfect democracy was fecured by the reprefentation of the people in the Houfe of Commons, and the trial by juries, The grand and petty juries were placed as a protection be tween the Crown and the people; and were it not for the intermediate fecurity which they afforded, the power of the Crown would crumble into duft the liberties of the people. Yet he could prove, that the trial by jury did not exist in those cases which affected the liberty of the prefs; by which opinions were communicated, information extended, and effects produced, of the greatest inagnitude, in any season of national alarm and danger. The conftitution, continued he, made a difference between civil and criminal cafes. But here was the mifery of that practice, which he was now to ftate, A learned Judge had alledged, that they were entitled to apply the fame rules in both cafes. But in order to fhow the power that was given to the Judges in a civil cafe, it was entered upon the record; and they afterwards were entitled, if it fhould not meet with their approbation, to set aside the verdict of the jury. But in a criminal cafe though it was ftated upon the record, it was neceflary to afk leave of the people, and the jury, if they pleafed, might throw out the bill. The difference was, that in the one inftance it came from the authority of the Court, and in the other from the authority of the people. To diminish the privileges of juries, Mr Erfkine faid, was to throw away the only fecurity which the people at prefent poffeffed from the prerogative of the Crown. In civil cates, not only the authority of the Judges was established to judge of the law, but likewife to prevent. the jury from interfering with what in this refpect fell immediately under their province. Law and fact were kept as much afunder by the principle of our conftitution, as night and day by the established fyftem of nature: matters of property were wifely deemed too intricate for the decifion of

a jury.

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