even the imputation of a crime. --If they have this right to examine into and feparate the guilt and the intention, and to judge of both, in cafes of manslaughter, upon what principles of law, or eftablished precedents in practice, are they to be deprived of it, in other criminal cafes of lefs moment?――That there is, indeed, one of the most remarkable precedents in our history, which comes full to the point in question, and operates totally against this doctrine; which is the celebrated cafe of the feven bishops in the arbitrary reign of James II. where the jury could have acquitted them upon no other principle than that of their right to judge of the intention; that the bishops acknowledged the publication, and the application which was alledged in the information; and therefore, that if the intention was not fubmitted to the jury, there was no fubject for their determination: but the jury, finding the intention to be good, acquitted them upon that principle, and upon that principle only, to their own lafting honour, the joy of all good men, and the great advantage of the nation: that this was done in the worft of times, in the face of the most violent and arbitrary power, and of the most daring, profligate, and corrupt judges, who yet had not courage to overthrow this eftablished right.

The fecond allegation referred to the cafe of Almon the book feller, who was pronounced to be by law guilty, though he was not in his houfe, when the copies of the libel, for which he was profecuted, were brought to his fhop; though they were fold without his

knowledge; his name printed on the title-page without his privity or confent; and though, upon his return, he fent back the remaining copies, and complained of the li berty which had been taken with his name.

It was faid, that the judgment, by which this man was found guilty, had blended and confounded civil and criminal actions in the most extraordinary manner, and would if established as a precedent, introduce an irremediable confufion in the law; that though it was admitted, that, in civil actions, the fufferer ought to recover damages, even from the involuntary author of any injury he fuftained; it was infifted upon to be quite otherwife in criminal cafes, and that it was contrary to all ideas of juftice, that fuch an unlucky or foolish trefpaffer as the prefent fhould be, profecuted as a bad man, and an enemy to fociety, and punifhed as a public delinquent.

Among the collateral allegations were the following--That juries had been villified from the bench, and reprefented as unworthy of their trust ;———that they had been taught to pay no regard to the quality or fortune of the parties, in affeffing damages, and to make no greater reparation to the first peer of the realm than to the meanest peafant.That a juryman had been rejected, without any challenge from the parties, who are alone invefted with that right by the law. That a great judge had made it a kind of settled maxim, to inform the jury, that they are judges of fact only, and not of law.And that, upon a trial for murder, the jury were fent back, after they had brought in

their verdict, Guilty, and were peremptorily ordered by the judge to bring in a verdict, Manslaughter. It was faid, that thefe tranfactions had not only excited a moft general, contempt of the courts of law, but have also most unhappily leffened that esteem and reverence with

which the people of this country ufed at all times to look up to the laws themselves;--that the last, in particular, had excited a great and general alarm, as they artribute it to that extreme partiality which has of late manifefted itself upon every occafion in favour of the military, and has fupported and encouraged them in the commiffion of acts of the greatest vio. lence and mott barbarous outrage upon their fellow-fubjects; that they cannot conceive, how any thing less than the immediate interpofition of minifterial influence, could have induced a judge to controul the judgment of a jury in a plain matter of fact, of which they were as well qualified to judge as the most acute and fubtil fplitter of cafes in all the courts. It is not then without reafon that the' ple are now alarmed, and think that, if judges are allowed fuch dictatorial authority, juries will become, instead of bulwarks to the conftitution, mere engines to cloak the oppreffion of magiftrates. It was therefore moved, that the particular conduct of the judge in. queftion, who was fpecifically named, should be added to the enquiry.

peo

our judges fhould be kept facred;, not only from principles of justice to themselves as men; but principles of true policy, as members of the greatest importance to the state.

That no fpecific charge was laid; the motion was only made for a vague enquiry, which might as well have been extended to any other man, or body of men, in the kingdom, that, however, the defign of it was evidently the condemnation, or at least the afperfion, of one or two particular perfons; and by this method of conducting it, it was to imply guilt in ten more.—— -That the noble lord, who was particularly pointed at, could undoubtedly juftify his conduct with the greatest ease; as he had always made law, reafon, and juftice, the rules by which he guided it; and that his fame was as far fuperior to the fruitless efforts of malevolence, as he was himself in ability, and knowledge of the law, to thofe who prefumed to cenfure him.

Some gentlemen however entered into a vindication (and thereby feemed to admit the charge) of thofe doctrines which had been attributed to the lord chief juftice of the King's-bench.-They faid, that they contained nothing new; that they were the fame tenets which the judges had maintained in all times;--that, to prove this, they would not go back to Scroggs or Jefferies; they would bring their evidence from the most unexceptionable authority, that of lord chief juftice Raymond;--the opinion of this judge, in the cafe of Franklyn for publifhing the Craftsman, was accordingly cited and read from the 9th vol. of the State Trials, which appeared in general

to

to coincide with the late practice of the courts, and the doctrine which was the present subject of cenfure and defence.

no

The principal ftrefs of the argument was however refted upon the wantof fpecification of the charge in the motion, with which the charges made in the debate had no relation;the general implication of guilt which would attend fuch an enquiry, when there was reason to think that even the smalleft cenfure was incurred; and the injustice, as well as imprudence, of raifing a general clamour againít all the judges, when it appears, that even the breath of fufpicion falls only upon two.

It was replied in answer to thefe arguments, that the gentleman who made the motion, as well as thofe who fupported it, had been actuated by more equitable and generous motives, and had proceeded upon more liberal principles, than to put themselves in the place of informers, and by specifying and applying their charges to individuals, to incur the cenfure of a mean and malicious perfonality. They went upon wider ground, and a more extenfive plan. The caufes of complaint were too numerous, and the enormities too great, to be reached or implied by a fpecific charge; that no injury would be done, no character deftroyed, no particular perfon ruined, unless it appeared by the refult that his conduct merited punishment. That the causes, which had already been fhewn within doors, were fufficient motives for the enquiry, and that the general difcontent without, and the public cenfure of the courts, which both in words and in writing had spread VOL. XIV.

throughout the nation, made it abfolutely neceffary: that if any thing further need be urged in favour of it, the character and weight of those refpectable names which now required it, whether confidered as members of that houfe, or of the community at large, fhould in itself be a caufe fully fufficient.

That though the enquiry had been propofed upon that enlarged and liberal plan, feveral fpecific charges were made;--that the character of the judges, and the reverence due to our courts of juftice, particularly demanded it; that if the cenfure and obloquy thrown upon them fhould appear to be illfounded, nothing could fo effectually put a stop to it, or redound fo much to their honour; and that, therefore, all those who were real friends to the judges, and who believed them innocent, should promote the enquiry; if they were guilty, who would avow a wish to protect or to fereen them? That, in the former cafe, no mischief or danger can be apprehended to them; if their doctrines are conftitutional, every imputation will fly off, and they will meet with the greatest applaufe; if they are legal, though not conftitutional, it will produce neither condemnation nor cenfure to them, and a remedy can be fought for the difeafe, by making the laws and the conftitution agree.

That they had heard from the mouth of one of their own members, that attempts had been made to corrupt the venerable fages of the law; and that a late judge, equally celebrated for his knowledge and integrity, had been tampered with by administration, and [C]

folicited

folicited to favour the crown in certain trials which were then depending between it and the fubject. That though this, as a death bed declaration, could not be eftablished in fuch a manner as to amount to a legal proof; yet the furmise of the bare poffibility of fuch an attempt was a matter of the most alarming nature, which called upon all their care and attention, and demanded the most ftrict inquifition into the conduct of the courts.

The precedent, quoted from the 9th vol. of the State-Trials, was rejected, as the authority from which it was taken was faid to be of no value; but fuppofing it for a moment to be admitted, what confequence is to follow? It is the opinion of a fingle judge, and it is drawn into precedent; the history of our law is full of the different opinions of different great lawyers, and unfortunately, few cafes could be put, that may not be fupported by the fanction of fome time-ferving precedent; the only juft inference is, that our laws, particularly those which are the fubject of the prefent debate,

ftand as much in need of a revifion as our courts of justice, and that it is in the highest degree neceffary to both. That this revision is the more urgent, as, from the doctrines laid down of late, the office of a juryman appears to be fo involved in intricacies, so immerfed and inveloped in law, that no two of the greatest fages, who have made the laws the study of their lives, can agree in their definition of it.--Let this rubbish then be removed, and the line drawn with fuch precision that this controverted doctrine may be eftablished on clear, determined principles, fo that any fenfible juryman (without being a lawyer) may know his own rights and privileges; and a judge, without daring to encroach on those privileges may reft fatisfied with the authority he is invefted with.

Such were a few of the arguments made ufe of on both fides, in the course of this important debate. The motion was rejected, upon a divifion, by a majority of more than two to one, there being 184 against, and only 76 for, the enquiry.

HIS fecond attack upon the

courts, conducted with great abi

lity, and fupported by several geneminence in the law, attended be.

fides, with fevere and pointed charges against one in particular, could not fail of being fenfibly felt by the noble lord who prefided in it, and whofe name had been directly mentioned. Though it had failed in the execution, the attempt in fo aweful an affembly was alarming; and as nothing of the kind had happened of late years, the novelty made it more fo; and though most of the charges were obliqué, their intended direction was evident, and they were urged with a boldness and an appearance of determination which made them ferious; all which was increased by the peculiar delicacy of that high ftation, which will not admit even of the breath of imputation. Lord M. according ly gave notice the next day for a call of the houfe of lords on the following Monday, on a matter of importance which he had to communicate to them.

All perfons were now big with expectation, that thofe matters which had been the caufe of fo much doubt, jealoufy, and uneafinefs, in the nation, would have been fully and finally difcuffed; and many thought, that the great judge in queftion had, with the fagacity peculiar to him, feized the prefent critical and golden opportunity of placing and establishing his character, in even a more exalted point of view than it had been before; and that, after hay, ing feemed perfonally to decline the combat on his own ground, and having fuffered his friends and the miniftry to prevent it elfe. where, he would now, fecure in the consciousness of his own rectitude, bring it on voluntarily, and acquire redoubled luftre by the conflict.

It would feem that this was the original intention; but, whatever the motives were that afterwards prevailed on his lordship and his adverfaries (for the spirit visibly declined on both fides) it was not the iffue. Upon the day appointed the noble lord acquainted the house, that he had left a paper with the clerk, which contained the unanimous judgment of the court of King's Bench, in the cafe of the King against Woodfall; and that their lordships might read it, and take copies of it if they pleased.

A queftion was then propofed, whether it was meant, that this paper fhould be entered upon the journals of the House? which was anfwered in the negative, and that it was only intended to be left in the hands of the clerk. It was obferved upon this mode of proceeding, that the paper, in its prefent fituation, could answer no other purpose than that of merely grati fying the curiofity of fuch as chofe to look at it; that, with refpect to that Houfe, it was a matter as foreign to it, by being left in the hands of the clerk as if it had been left in any other hands, and in any other houfe or part of the town, or as any other indifferent paper might be; and that no perfon, as a lord of parliament, could in this ftate make any motion, or proceed in any manner upon it.

This conclufion indeed feemed to be admitted; and though no motion was grounded upon the paper by the noble perfon immediately concerned, it was not even infinuated that the Houfe, in its publick capacity, could take any notice of it.

The late lord chancellor, who had before pledged himself upon [C] 2

this