a jury. But, crimes, whofe guilt confifted in their intention, were peculiarly fitted for their confideration, and could only properly be afcertained by their verdict. In cafes of property a new trial might be moved for. But if the jury fhould acquit a criminal, not even the King could afterwards attaint him. In the one cafe, the business originated from the Court, in the other from the people. In the one cafe, the verdict might be thrown out, but in the other could not.

Mr. Erskine flated, that by the prefent fyftem of things, by merely entering the word literatim, upon the record, a man might be hanged by the Attorney General for high treafon. In fuch an exercife of authority as this, Mr. Erfkine faid, there was an end of the protection of juries. In the prefent way of treating libels, the Judge fays to the jury,“ lf "If you find the publication, you are bound to find him guilty; if we find him not guilty of a libel, there "may then be an arreft of judgement." But fhould he, he faid, as counfel for the defendant, move an arreft of judgement, upon the plea that there was no libel, the Judges would anfwer, "That the jury had already found

the malicious intention." In fo enlightened an age, the abfurdity of the cafe was indeed aftonishing. In the inftance of a duel, where the alternative was either that the individual fhould be banished from fociety, or expofe himself to the hazard of taking away the life of another, at an equal rifque of his own, the crime was murder; yet during the course of his experience, in fuch an inftance, murder had never been found. It was however in the power of the Attorney General to render it murder, by putting literatim upon the record. If the defendant fhall appear guilty of all thofe facts, by the verdict, he must be found guilty; but if there should afterwards be difcovered to have exifted no malicious inten-. tion, judgement might be arrested.

He thould now, Mr. Erfkine continued, taking an oppofite courfe from his right honourable friend, enquire how the evil began. He thought that the Judge ought to ftate his opinion in libels, as in all other cafes, and truft the decifion to the good fenfe and equity of the jurors, which he feldom knew to fail. Upon the revival of letters, printing foon difcovered the influence which it poffeffed over the ftate, and employed itself in political and theological difcuffion. The Star Chamber was then inftituted in order to exclude the interference of juries to punish any attempt that might be made to detect the mifconduct of a bad Government, and the errors of a false religion. In wishing to abolish this most tyrannical, unjuft, and oppreffive engine of power, the StarChamber, it was certainly the wifh of the people to unite the.

harmo

harmonious fyftem of Judge and jury; the one communicating light from the fources of law, the other investigating the nature of facts, and cooperating in the impartial execution of juftice. After the abolition of the Star Chamber, there had taken place, before the recorder, the trial of Penn and Mead, who had been accused of feditious preaching in Grace Church. The jury found only a verdict, guilty of speaking to fo many people; and though the Judge fent them back, yet as they would bring no other verdict, he fined each of them a few marks. One of thofe jurors, a fecond Hampden, refifted this unjust fentence, not on account of the fum required to be paid, which was trifling, but because, if he fhould pay a farthing, he fhould regard himself as fubmitting to a humiliation dangerous to the liberties of his country, and becoming a flave by his own act. He faid, he would here quote a respectable authority, that there never could be a question of law unmixed. There must first, he observed, be proved the facts from which the law was to be raised. If the Judge told the jury, that unless they acted fo and fe, they would be tranfgreffing their duty, it was putting them under a reftriction more grievous than the penalty of imprifonment; it was an imprifonment of the mind. There was no fine to which he would not rather submit than fuch a restriction; of a fine, he knew the extent, and he might confole himself under it with the reflection of the benefit that would acerve to the country from his verdict: but this was wounding him on the fide of confcience; it was ftraitening him in the road of duty. If the Judge and jury, continued he, inftead of respecting in one another the knowledge and abilities of which both were poffeffed, instead of co-operating in the fame great end, the impartial adminiftration of justice, bitterly oppofed one another, what confequences could be expected to follow? Lord Raymond, upon the publishing of the Craftsman, had faid, that certain perfons had taken up a notion that it was the bufinefs of the Judges to explain to the jury the law; but no fuch practice really exifted. Yet, ftrange it was, that he fhould have faid this in the teeth of the decifion in the trial of the feven Bishops. The Judges there, though under the corrupt influence of the Crown, falfely gave it as their opinion, that the petition was a libel, yet referred it to the decifion of the jury. The jury gave as their verdict, that it was no libel; and notwithftanding the confequences of this verdict, and the complexion of the times, they incurred no penalty, nor even blame. The Judges had given their opinion in order to please the King, but they had not attempted to exercife authority, a fare indication of their confcioufnefs that they did not poffefs it. In the cafe of the Dean of St. Afaph, in which he was

con

concerned, the conduct of the oppofite Counfel had been highly honourable. Though he ftood with a brief for the Crown, he would not furrender the privileges of the people; yet what was conceded him by the adverfe Counfel was not granted him by the Court. In the cafe of the King and Franklin, it was diverting enough to confider the only argument that had been advanced, and with no fmall importance, on the other fide. A precedent, it feemed, had occurred during the time of Sir P. Yorke, in which a decifion had taken place for the people. A fong, called Packington's Pound, was composed on the occafion, the writer of which, it was faid, exulted, as if the Judges had been outwitted, and the victory fnatched from them by the jury. As a ftrong proof of this, a line, fpeaking of the jury, had been quoted,

"Were Judges of fact, but not of law.”

Unhappily, however, this line, on which so much stress had been laid, which had been produced as confirmation ftrong as proofs of holy writ," had been quoted from an erroneous copy; the line literally stood thus,

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"Were Judges alike of the fact and the law."

Thus, by the literal quotation, was the argument reversed, and all the ingenious fyftem that had been built on it, overturned.

Mr. Erfkine faid, he would now ftate a point that, from his own experience he was enabled to do, what had been the effects of this fyftem. He had now been engaged thirteen years at the bar, during the courfe of which he had occafion to fee and be acquainted with much practice. The officers of the Crown, in the discharge of their duty, he had found always to behave with mildness and moderation. But ftill he was of opinion that the matter ought to be left entirely to the jury. He would pledge himself, that in this event, they would do their duty. To them it belonged, and to them it fhould be entrusted to decide, whether what was accufed as a libel was in itself innocent, meritorious, or malicious. confequence of adopting the oppofite fyftem, was a perverfion of justice; it was impoffible to punifh the criminal. In the present circumftances, every man was regarded by the jury as a victim, whom they were folicitous to fave. The advice which he should give to any friend, applying to him in the cafe of a libel on his character, or deareft connexions, would be, not to profecute; fince by fo doing, he would only confirm the flander, and leave his adverfary to enjoy the triumph of impunity. Mr. Erskine wifhed, for the fake of

The

that

that unanimity which was fo defirable on the present queftion, that his right honourable friend would put afide the matter with which he had commenced. He indeed could not help taking notice of it, fince it was this which had first fet to work the vaft engine of his mind. He wifhed, in order that nothing might be introduced in this bufinefs which fhould at all interrupt the harmony with which it might be renewed, that every thing fhould be avoided which should feem to lean either to one fide or other, and that it might merely be made the inftrument to establifh the conftitution upon its true principles. There was no doubt, Mr. Erskine faid, of an inquifitorial power of this House over the Judges; it was the great key-ftone of the conftitution; but this power ought to be very cautiously and sparingly exercised; it ought to be kept in thofe receffes of the conftitution, from which it fhould only be produced on occafions of the greatest emergency. It was not even defirable to speak hastily of the conduct of the Judges, in that Houfe, as what was faid there might be liable to mifreprefentation.

He fhould mention, he faid, one inftance more of the oppreffion of the prefent fyftem. An infinuation had appeared in one of the papers, that the Ruffian Ambaffador was merely a spy. He fhould not even mention the name of his client, who had been accufed with this infinuation as a libel; he was unwilling to renew any unpleafing remembrance. He had been fentenced to the pillory; yet he had produced in Court an atteftation of a Phyfician, that at the time at which this paragraph appeared, his client had been delirious. As the counfel along with him, in the fame caufe, was a right honourable gentleman, on the other fide the Houfe, who was now high in the administration of the country, he had then travelled over pretty nearly the ground, and he trufted that he had fince feen no occafion to alter his opinion, though he fhould not wish to be thought now to bind him in his conduct, by what he had then faid of informations by que warranto; he would briefly ftate, that they had been a fource of accumulated abfurdity.

Mr. Erskine ftated different cafes of quo warrantos, to prove, that Lord Mansfield, and the very fame Judges who formed the Court, that laid down a doctrine refpecting their limitation in one year, and at no greater diftance than two years had held another directly the reverfe: an evident proof how much they were preffed by the uncertainty of a matter, which from its nature ought not to be left to their difcretion; and which the lefs it was fo left, would be the more eafy for them, and the more fafe for the fubject. Mr. Erskine concluded his fpeech with returning thanks to the

I

Houfe

House for their indulgence, and declaring, that he flattered himself that night the motion for the Committee would be carried unanimously.

The Attorney General agreed with Mr. Erskine, as to his Attorney general argument, but differed from him, and the right ho- General nourable mover of the queftion, in regard to the mode of proceeding that had been propofed. He perfectly agreed that the Judges in their conduct had done nothing but what, whoever examined the ftream of precedents flowing down for a long feries of years, would find had been the uniform practice of their predecefors, and what confequently called for no fort of blame whatever. Neither the conduct of that venerable and most refpectable Earl who had prefided in the Court of King's Bench for fo many years, nor that of his fucceffor, Lord Kenyon, who was not only eminently qualified by his great legal knowledge to fit at the head of his Court, but by his daily decifions had proved himself to be a truly honeft man, were reafonably to be questioned. However, he allowed, every man muft agree, that there was fomething in the practice of the law of libels that called for amendinent and explanation; but as his honourable and learned friend had faid, (and judiciously, properly, and wifely had it had been faid), great delicacy ought to be exercised in interfering with any fubject of the nature with the prefent, left the public fhould take the alarm, and be impreffed with an opinion that there had been fomething wrong in the conduct of our Judges, or of our Courts of Judicature. With that view of the cafe it was, Mr. Attorney faid, that he thought the moving for a Committee of Courts of Juftice altogether unneceffary. The province of that Committee had been to receive and to enquire into complaints of improper conduct in the Judges; the moving, therefore, for fuch a Committee would create alarms and apprehenfions in the minds of the public, who would naturally conclude that fome part of the conduct of the Judges was complained of, and that clearly and avowedly not being the cafe, the Committee ought to be moved for, and the more especially as the object could be attained without having any fuch Committee revived. The Committee had not, he faid, fat above two or three times fince the reftoration.

Here the Attorney General went into a technical history of the mode of trial in cafes of libel ever fince they had been fnatched out of the Star Chamber, and in what particulars the Judge directed the Jury, and where the law arofe out of the facts that came out in evidence. Having very fully explained this, and reasoned on it at fome length, he afferted that a bill might be brought in to provide a proper regula. VOL. XXIX.

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tion