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Proceedings of the Court of King's Bencla in-the Case of Mi. Aikinson.481 Poll; and the said scrutiny fo granted is fully intends to proceed upon with all now pending and undetermined, and by practicable dispatch.-- In uitness whereof, reason of the premises, the said Bailiff hc, the said Thomas Corbett, Bailiff of humbly concciyes he cannot make any the said. Liberty, hath hereunto set his other return to the said precept than as hand and leal, the 17th day of May, in herein before is contained, until the faid the year of our Lord 1754. scrutiny shall be determined, which he
THO. CORBET, Bailiff.”
Proceedings in the Case of Christopher Atkinson, Esq. O A Tikinch, Brail agents having place Thursday April 29th, Christopher which Mr. Atkinson's Counsel proceeded
was this :-that, at common law, records fconded for some time, once he was con were ainendable at any time; but by fiavicted of perjury, went into the Court of fute, records of criminal proceedings could King's Bench, and voluntarily furrender- not be amended, after the term in which ed himself to the justice of his country. the records were filed. Various and apMr. Bearcroft moved an arrest of judg. posite were the cases produced in fupport ment: the grounds on which he argued of this doctrine; and the most respectable that judgment should be staycd, were two names were quoted in favour of it. But, one, that at common law, the justices on the other hand, it was denied to be of feffions had no juridiction in cates of law, and as venerablc authorities were perjury; and that where they have that quoted to prove, that in criminal as well jurisaiation now, it is given them by ex as civil matters, records were at all times press terips in statutes made on particular amendable; and consequently that they occasions, that have nothing in common might be amended in any lublequcnt term, with Mr. Atkinson's cale; which not be. as well as in that during which they were ing within any of these statutes, was con. filed. The reason why one fide inlisted fequently out of the jurisdiction of the so much that the record might be amendJuftices (The indictment was found at ed, and that the other denied it was this. Hicks's Hall.) The second ground was, On the face of the transcript of the record, that when by Cretiorari the indictment as sent up by the clerk of the peace from was brought into the Court of King's Hicks's Hall, it does not appear that there Bench, the names of the Jurors who were more than four justices on the found it, ought to have been returned Bench, when the Grand Jury was tworn, with it, that the Court might have an op, by which the bill of indi&tment was portunity to try whether they were boni et found : of thele four Justices (whose legale homines, a point of the utmost con. names were returned) three only were sequence to the subject, as without such Commissioners of Oyer and Terminer ; a return and trial, a man might be de, that is to say, the names of only three out prived of his liberty, property, or even
of the four were inserted in the commil life, by out-laws, felons, or any other fion of Over and Terminer, which comdescription of men, disqualified by law mission is issued under the authority of an from fitting in judgment on any one. act of Parliament ; from which act they The court took time to consider on the derive their jurisdiction to enquire into subject, and committed Mr. Atkinson to perjuries, &c. the fourth was fimply a the custody of the Marshal of the King's Juftice of the Peace, who could not at Bench.
common law, take cognisance of cases of On Thursday the 6th of May, he was a perjury; and who could not merely as a gain brought into Court, when the Attorney Justice of peace, take cognisance of shem General obtained a rule for Mr. Atkin- by statute : it is only by being a CommisSon's Countel to thew cause why the re fioner of Oyer and Terminer, that this cord (if imperfect) thould not be amend. can be done in the courts below, by a ed.
Justice of Peace : now one of the four On Wednesday the 12th and Thursday persons who fat on the bench at Hicks's the 13th, the matter was argued by Mr. Hall, when die bill of indi&tment was Bearcroft, Mr. Wood, and Mr. Dallas found against Mr. Atkinson, was not a on the part of Mr. Atkiofon, and the At- Commissioner of Oyer and Terminer ; torney and Solicitor Generals, Sir Thomas and consequently, as upon the face of the Davenport, Mr. Lee, and Mr. Cooper on record removed into the Court of King's the part of the Crown. The ground on Bench, it appeared that in reality there
were present only three Commiffioners of suffer through the errors of a clerk, when Oyer and Terminer (for the Justice of the record from which he makes the erPeace in this cale goes for nothing) when roneous transcript is in itself correct and the bill was found; and as by law there perfect. mut be four Commissioners to constitute The Court did not give any opinion, a court of quorum, it was insisted that but ordered that affidavits should be made the whole of the proceedings, conviction to certify to the Court, that the original and all, must fall to the ground, and that record in the Court below, is actually no judgment whatever could be pro more full and complete, than the traní. pounced upon Mr. Atkinson ; because cript from it, removed into the Court a. the very first step in the proceedings hav- bove ; for if the original record is as deing been illegal, no judgment of law fective as the transcript, it would be in could be founded upon them.
vain for the Court to order the transcript On the other hand it was asserted that to be amended. though the record did not give the names On Friday the 21st Mr. Atkinson was of more than three Commissioners of the again brought into Court, when on readPeace, who were present at the time the ing the affidavit, and hearing Mr. Bear. bill of indictment was found, there were croft and Mr. Wood in behalf of Mr. in fact nine or ten Commissioners present, Atkinson, Lord Mansfield in a speech and consequently such a number as the that did him infinite honour, declared the law required. Upon this fact the Coun. unanimous opinion of the Court, that the sel for the Crown rested the merits of record should be amended as prayed. their cause ; and it was for the purpose Lord Mansfield concluded his address in of enquiring into this fact, that they de- words to this effect :Sired to have a new certiorari issued for “ There is a certain principle which I amending the record. They then pro “ have laid down in this, as well as other ceeded to prove that the Court might or “ places, which was never more properly der the record to be amended; and they “ applicable than in the present instance, distinguished between two kinds of errors « That no fi&tion of law, shall ever to in records; the one ministerial, the other " far prevail againft the real truth of the judicial; the judicial error they stated to “ fa&t, as to prevent the execution of be an error made by the court itself, and
" justice." which they acknowledged could not be a By consent of the Attorney General, mended, after the term in which the re the judgment of the Court against Mr. words were filed. Ministerial errors, they Atkinson, was postponed till the next faced to be those made by clerks, or ofc term, in order that his Counsel may inficers of the Courts, and which, by a spect the record when amended; they beparticular statute, relative to misprision of ing still entitled to make any further obclerks, are amendable at all times; and ječtion that may yet appear on the face of the reason of the statute was this, that it the record. would be hard indeed, that parties should
Copy of an original Letter from the celebrated David Hume. I AM not surprised to find by your let- who knew him to be a good fcholar
, and ter, that Mr. Gray should have enter a tained suspicions with regard to the ad- cited ; and asked whether he had ever thenticity of these Fragments of our High- translated any of them. Mr. Macpherland poetry. The first time I was thewn fon replied, that he never had attempted the copies of some of them in manuscript, any such thing; and doubted whether it by our friend John Home, I was inclined was possible to transfuse such beauties into be a little incredulous on that head ; to our language : but for Mr. Home's but Mr. Hoine removed my scruples, by fatisfaction, and in order to give him a informing me of the manner in which he general notion of the ftrain of that wild procured them from Mr. Macpherson, the poetry, he would endeavour to turn one translator. These two gentlemen were of them into English. He accordingly drinking the waters together at Moffat last brought him one next day; which our autumn; when their conversation fell friend was so much pleased with, that he upon Highland poetry, wliich Mr. Mac never ceafed foliciting Mr. Macpherson pherton extolled very highly. Our friend,
till he insensibly produced that small vo or two guineas a-piece, in order to enable lume which has been published.
him to quit that family, and undertake After this volume was in every body's a miffion into the Highlands, where he hands, and universally admired, we heard hopes to recover more of these fragments. every day new reasons, which put the au- There is, in particular, a country lurthenticity, not the great antiquity, which geon somewhere in Lochaber, who, he the translator ascribes to them, beyond all lays, can recite a great number of them, question : for their antiquity is a point but never committed them to writing; as which must be ascertain'd by reasoning; indeed the orthography of the Highland though the arguments he employs seem language is not fixed, and the natives very probable and convincing. But cer- have always employed more the sword tain it is, that these poems are in every than the pen. This surgeon has by heart body's mouth in the Highlands, bave been the epic poem menrion'd by Mr. Macbanded down from father to son, and are pherson in his preface; and as he is someof an age beyond all memory and tradi- what old, and is the only person living tion.
that has it entire, we are in more hafte to In the family of every Highland chief- recover a monument, which will certainly. tain there was anciently retained a bard, be regarded as a curiosity in the republic whose office was the same with that of the of letters. Greek rhapsodifts; and the general sub I own, that my first and chief objection ject of the poems which they recited, was to the authenticity of these fragments, was. the wars of Fingal; an epoch no less cele, not on account of the noble and even brated among them, than the wars of tender strokes which they contain ; for Troy among the Greek poets. This cul- these are the offspring of genius and paltom is not yet altogether abolished; the fion in all countries; I was only surprised bard and piper are esteemid the most ho at the regular plan which appears in Tome nourable offices in a chieftain's family, of these pieces, and which seems to be and these two characters are frequently the work of a more cultivated age. None united in the same person. Adam Smith, of the specimens of barbarous poetry the celebrated professor in Glasgow, told known to us, the Hebrew, Arabian, or me, that the piper of the Argyleshire mi- any other, contained this species of beaulitia repeated to him all those poems ty; and if a regular epic poem, or cven which Mr. Macpherson had translated, any thing of that kind, nearly regular, and many more of equal beauty.-Major hould allo come from that rough climate, Mackay, lord Rae's brother, also told or uncivilized people, it would appear to me, that he remembers them perfectly; me a phenomenon altogether unaccountas likewise did the laird of Macfarlane, able. the greatest antiquarian whom we have in I remember, Mr. Macherson told me, this country, and who infifts fo ftrongly that the heroes of this Highland epic were on the historical truth, as well as on the not only like Homer's lieroes, their own poetical beauty of these productions. I butchers, bakers, and cooks, but also could add the laird and lady Macleod to their own shoemakers, carpenters, and these authorities, with many more, if smiths. He mentioned an incident, which these were not sufficient; as they live in put this matter in a remarkable light.-A different parts of the Higilauds, very re- warrior has the head of his spear ftruck mote from each other, and they could off in battle; upon which he immedately only be acquainted with poems that had retires behind the army, where a forge becoine in a manner national works, and was erected; makes a new one; hurries had gradually spread themselves into eve, back to the action; pierces his enemy, ry mouth, and imprinted on every me. while the iron, which was yet red-hot, mory.
hifles in the wound. This imagery you Every body in Edinburgh is so con will allow to be fingular, and so well vinced of this truth, that we have en imagined, that it would have been adoptdeavoured to put Mr. Macpherson on a ed by Homer, had the manners of the way of procuring us more of these wild Greeks allowed him to have employed flowers. "He is a modest tensible young it. man, not settled in any living, but em I forgot to mention, as another proof ployed as a private tutor in Mr. Graham of the authenticity of these poems, and of Balgowan's family, a way of life een of the reality of the adventurers which he is not fond of. We have there contained in them, that the names of the fore set about a subscription of a guinea, heroes, Fingal, Oscur, Ofur, Oscan, Der
484 Resolutions respecting the Colours of the three Scots Regiments
. mid, are still given in the Highlands to Gray, that we may judge of the juftness large mastiffs, in the same manner as we of it. There appeared to me many verfes affix to them the names of Cæfar, Pom- in his profe, and all of them in the same pey, Hector ; or the French that of Marl- measure with Mr. Shenstone's famous borough.
ballad. It gives me pleasure to find, that a per Ye thepherds, so carelefs and free, son of fo fine a tatte as Mr. Gray approves
Whole flocks never carelessly roam, &c. of these fragments, as it may convince us, Pray ask Mr. Gray whether he made the that our fondness of them is not altoge- fame remark, and whether he thinks it a ther founded on national prepossessions, blemish : which, however, you know to be a litele
Your's, most fincerely strong. The translation is elegant ; but
DAVID HUME. I made an objection to the author, which Elinburgh, I wish you would communicate to Mr. Aug. 16, 1760.
Resolutions of the States General on the Demand made by the Court of Great Britain for restoring the Colours of the three Scots Regiments.
Monday March 29, 1784. “ High Mightinesses; the said ambassa"M.
TORCK, of Rosendael, and “ dors intreating, that in consequence of
the other deputies of their “ this application, some resolution might High Mightinelles for military affairs, re “ be taken relative to the said affair as portod:
“ soon as poslible, that they might be “ That they had, in obedience to a “ enabled to give some answer to his commission from their High Mightinesses, * Grace." of the 13th of April, 1783, jointly with “ That also by virtue of a commission some members of the Council of State, from their High 'Mightinesses, dřed the examined dispatches received from Meffis. 22d of March, 1784, they had examined Lestevenon de Berkenrode and Brantzen, another letter froin the above named amthe Ambassadors of their High Mighti. bassadors, dated at Paris the nth of Fenesses at the Court of France, dated the bruary last, and addressed to Mr. Fagel, roth of March, 1783, bearing “ That bearing “ that Mr. Ayles, Secretary to “ two days before they had received a “ the embassy of the Court of London, " letter from Mr. Fitzherbert, his Bri “ informed them that he had received or• tannick Majesty's Plenipotentiary, in “ ders from the British Ministry to en“ which he begged them to employ their “ quire of them if their High Mighti“ good offices to dispose their High Migh “ netics had yet come to any conclusion “ tinelles to restore to his Britannic Ma 16 relative to the demand made of the re“ jesty the colours of the three Scots re “ ftitution of the colours of the late “ giments which their High Mightinesses “ Scots brigade; and if not, to instruct “ had made national; adding that in cafe “ the above named ambassadors to make " their High Mightinelles contented to “ fresh instances with their High Mighti“ this restitution, Mr. Cunningham, late “ nesses for the terinination of that affair, “ Lieutenant Colonel in the said Brigade “ which was of itself of little conse" was properly authorised to receive quence, but which had been left fo * them.”
long in fufpence and occafioned much 6 That they had also, by virtue of a expence by retaining at the Hague Co. commisfion froin their High Mightinesses, " lonel Cunningham, who had been audated the 26th of November last, examin “ thorized by the King to receive them. ed another letter from the above mention “ That they the said Amballadors had ed Mertrs. Lettevenon de Berkenrode and “ pledged themtelves to give immediate Brentzen, dated Fountainebleau, the 20th “ communication of this to their High of October last, and addresled to M. Fagel, “ Mightinesses, beseeching that deliberaGreffier to their High Mightinesses, hear «« tions thould be held on this subject; ing “ That his Grace the Duke of “ and that they should be enabled to " Manchester had applicd to them on the “ make some answer to this further de« subject of a conclusion of the affair re
" mand." “ garding the above mentioned colours, “ Their High Mightineffes having de" and had begged of them to be pleased liberated on the above report, and taken
to recommend it to the attention of their into consideration the very wife opinion of
his Serenc Highness, refolved to request High Mightinesses have not yet taken any his Highness to give the necessary orders formal resolution on this subject, but hare that the colours in question should be in the mean time provisionally taken the brought to the Hague, and deposited in above precautions, and that if their High the magazine of the generality, and kept Mightinesses do determine to grant the for the disposal of their High Mightinesses. request in question, they will, at the fame Rcfolved also, that this relolution be com time take the necessary measures for fende municated to the Amballadors of their ing the colours directly to England, in a High Mightinesses, and that they he in- decent and suitable manner, their High formed at the same time that their High Mightinesses not being inclined to employ Mightinelles authorise them to give for the above named Lieur. Col. Cunningham anliver to his Grace'the Duke of Dorset, for that service, whose residence here and in his absence to Mr.
Ayles, Secre- therefore for that purpose is entirely usstary to the English embaffy, that their less.
Jubilee in Commemoration of Handel. entertainments began on Wed to the height of forty feet from the ground minster Abbey. The Directors were, of the side aisles, and from the admirableDIRECTORS
ness of its construction, as well as judici. Earl of Exeter. Earl of Sandwich. ous disposition of the performers, Mr. Earl of Uxbridge Sir W.W.Wynne, Bt. Bates, who plays the organ, will be placed Sir Richard Jebb, Bart.
so as to see and be diftinctly seen by the ASSISTANT DIRECTORS.
whole of the numerous band. The inDr. Benjamin Cooke Mr. John Jones termediate space is filled up with level Dr. Samuel Arnold Mr. Theo. Aylward benches, and appropriated to the subRed. Simpson, Esq. Mr. Wm. Parsons fcribers who have taken tickets before the T. S. Dupuis, Esq. Mr. Edward Ayrton first of May. The side aisles are formed
CONDUCTOR, Joah Bates, Esq. into long galleries ranging with the orBy seven o'clock in the morning the se.. cheftra, and ascending, so as to contain a veral door ways of the Abbey were dozen rovs on each side; the fronts of thronged with subscribers of both' sexes, which project before the pillars, and are who thought no facrifice of time too great ornamented with festoons of crimfon mo. for a priority of situation at a concert so rine. grand and novel, and by half after ten At the upper end of the orchestra the every gallery was full. Thete early visi. organ appears, which, we understand, was tants found Icirure before the commence built by Mr. Green for Canterbury Cament of the entertainment to contemplate thedral, but kept back at the request of the architectural arrangement of the new the Directors for the celebrity. On each buildings, erected in the Abbey for the side of the organ, close to the window, occasion.
are the kettle drums, a pair of which was The building is comprized within the made of unulual dimenlions, on parpose welt aille, and contains accommoda- for this occasion, for Mr. A hbridge at tions for at least four thousand persons. his own expence; and another pair of The foor is raised about seven feet equal fame with the circumstance which from the ground, and most substan- they are now produced to celebrate: they ally supported. At the end of the aille were brought from the Tower by permit. adjoining the organ, a throne is created fon of his Grace the Duke of Richmond, in the Gothic stile, and a center box fitted being a part of the ordnance stores and the up for the reception of the Royal Family; inftruinents taken from the French at the one side of which is a box for the Bishops batile of Malplaquet, by the Great Duke and Prebends of Westminster; on the o of Marlborough. The choral bands were ther for the foreign Ambassadors; and principally situated on the elevated seats immediately below the King's box is ano in each of the side ailles; and the rest of ther for the directors: behind the throne the orchestra, to the amount of near som are fears for their Majesties attendants. pcrfons, distributed with peculiar discernThe orchestra is built at the opposite ex. ment, elegancy, and convenience, each tremity, ascending regularly from the insirumental performer having a perfpicuheight of above feven feet from the floor, ous view of the leader. The principis VOL. VI. May 174.