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Comparison between Thurlow and Sir William Block■tone
This is a very fair specimen of Thurlow's manner; for he never hesitated to resort to reasoning which he must have known to be sophistical, or to make a convenient assertion, — trusting largely to the ignorance of his audience. There was no analogy between determining whether by the usage of parliament a particular office was a disqualification to sit in the House of Commons, and enacting a new disqualification by a vote. Moreover, in point of fact, there never had been any votes, such as he supposed, for or against the general right of the Attorney and Solicitor General and the Masters in Chancery to sit in the House. But he spoke in such a loud voice, and with such an air of authority, that no one ventured to contradict him, and he was considered a great acquisition by the Government.
The office of Solicitor General immediately after became vacant by the resignation of Dunning, and Thurlow was joyously appointed to it.*
726. This was a very memorable Session in our party history. During the course of it came out Dr. Johnson's "False Alarm,'' and Edmund Burke's "Causes of the present Discontents," in the worst and best styles of the respective authors.
• In a Life of Sir W. Blackstone prefixed to his " Reports," it is said that he upon this occasion declined the office of Solicitor General (vol. i. xvii.); but the offer was very faint — merely in compliance with an expectation which had been held out to him when he entered parliament, and it was accompanied with a promise of the first puisne judgeship which should become vacant. The "Doctor," as he was then called, was infinitely superior as a jurist to Thurlow, and was covered with literary glory by the recent publication of his "ComMentaries," which rescued our profession from the imputation of barbarism; and while it contained a systematic Digest of English law, was justly praised by Charles Fox for its style as a specimen of genuine Anglicism. But the Doctor being returned for Westhury at the same time as Thurlow for Tamworth, entirely failed in the House of Commons. Being called forth to defend the Government on the Middlesex election, he wrecked his reputation as a constitutional lawyer; and George Grenville, reading the book, proved that he had contended for a different doctrine in debate from that which he had laid down in his Commentaries. Having published a pamphlet in his own defence, he got into a controversy with Junius, in which he was signally worsted'; and his retreat from political life was now earnestly desired both by himself and bv bis patrons. Thurlow was their man I
The Duke of Grafton's MS. Journal, after stating that Lord North behaved ill to his Solicitor General, thus proceeds: —" Mr. Dunning was too highminded to submit to any indignity. Not long after he resigned his office, and was succeeded by Thurlow, a bold and able lawyer, and a speaker of the first rate, as well in parliament as at the bar. His principles leaned to high prerogative, and I fear his counsels brought no advantage to the King or the nation."
'See Junius to Sir W. Blackstone, 29th July, 1769, and the four following letters.
CONTINUATION OF THE LIFE OF LORD THURLOW TILL HE WAS
The new Solicitor General escaped knighthood, now con- Chap.
He did not, by any means, disappoint expectation as a par- The Soliliamentary partisan. While a representative of the people, c"°r Gene" he ever readily and zealously followed the instructions of the duct in Government, as if he had been arguing in a court of law P4rlu,mem' from his brief. He often displayed, in the debate, vigorous reasoning and manly eloquence,— and, when beaten, he could always cover his retreat with a broad assertion, a cutting sarcasm, or a threatening look.
The first occasion on which he distinguished himself, after Debate on becoming a law officer of the Crown, was in the debate on uke^'wly the motion for leave to bring in a bill to take away the lne Attorpower of filing Ex Officio Informations. This was opposed, "aPs right in a very able and temperate speech, by Sir William De J^Jjjcri" Grey, the Attorney General, who showed, by clear autho- informalities, that the power by law belonged to his office, and ar- tl0nsgued, that there could be nothing unconstitutional in his being allowed, upon his responsibility, to bring a man to trial for sedition before a jury, who would decide upon the truth of the charge. Serjeant Glynn and others followed on the opposite side, contending that the power was liable to abuse; that it had been abused; and that a jury was no pro
* George III, to keep up the respectability of the order, soon after insisted on the law officers of the Crown, as well as the Judges, submitting to it; and the same rule has since been observed, unless in the case of the sons of peers, who are " honourable" by birth.
VOL. V. K K
CHAP, tection, on account of the fashionable doctrine now acted
'_ upon by Lord Mansfield and other Judges, that "the jury
had nothing to do with the question of libel or no libel; the criminality or innocence of the writing charged to be libellous being a pure question of law for the determination of the Court."— Thus answered Mr. Solicitor, in that rude, bantering, turbulent, impressive style of oratory which characterised all his parliamentary harangues, and which gained him such a Thurlow's reputation with his contemporaries: "Sir, however much a against the representative may be bound to express the voice of his contiw'Yesjf 8titueDts, I cannot greatly approve of that patriotism which prompts any member to adopt every popular rumour, and to assert the rumour as a fact, on his own authority. We ought to make a discreet selection, to distinguish between truth and falsehood, and not to swallow every vulgar prejudice. Therefore, I cannot applaud those oblique reflections which, in imitation of pamphleteers and newsmongers, some honourable members seem so fond of casting on this House. Such strokes may serve as stilts to raise the authors up to the notice of the mob, but will not, I am persuaded, add to their character in this assembly. The artifice is too gross to deceive. There is no lawyer, nor any other sensible person, within these walls who will not allow all the prosecutions lately carried on by the Attorney General were extremely proper, if not necessary. Why, then, should we, when no real danger, no late encroachment, presses, sally forth, like a band of Quixotes, to attack this windmill of a giant, this imaginary magician, who keeps none of our rights, none of our privileges, under the power of his enchantments? Not a single wight, not a single damsel, has he injured. All who pretend to dread him walk at large, ay, more at large, I suspect, than they ought. Our booksellers and printers have no reason to complain of being held in trammels. They are allowed every reasonable indulgence, and they carry it to its utmost limits. Shall we give licentiousness an ample range? For my own part, I cannot help considering the project as a crazy conceit, solely intended for gaining a little popularity; for men, however helpless, will 'spread the thin oar and catch the driving gale,' — the popular Chap. breeze, whose murmur is so soothing to certain ears. But CLVIthe wisdom and gravity of this House must perceive that the power at present lodged in the Attorney General is necessary, as well for speedily punishing as preventing daring libels. If no other process is left but the common one of bringing the affair before a grand jury, the delinquent may in the meanwhile escape. No offender can be brought to justice. What is the consequence? The licentiousness of the press will increase. Crimes will multiply. Nothing will be published but libels and lampoons. The press will teem with scurrility and falsehood. The minds of the people will be misled and perverted by scandalous misrepresentations. The many-headed beast will swallow the poison, and the land will consequently be one scene of anarchy and confusion." He next applied himself to a recent conviction of a bookseller for the unauthorised act of a servant, and according to the report (which is scarcely credible) he worked himself up to say, — "In civil cases, the master is confessedly answerable for the faults of his servants. How comes he in criminal cases not to be subject to the same rule? The culprit was justly condemned, and will be justly punished." * He then comes to handle the rights of juries in cases of libel (be it remembered) after they had been solemnly vindicated by Lord Camden, who had recently resigned the office of Chancellor, having held it for several years with general applause: — " Sir, the He denies other charge is equally groundless and absurd. The con- fhe. "&ht of
struction of libels belongs by law and precedent to the Judge consider and not to the jury, because it is a point of law which they |;16nq"fe1^)e| are not competent to decide. If any other rule prevailed, — or no libel, if the matter were left to the jury, — there would be nothing fixed and permanent in the law. It would not only vary in different counties and cities, according to their different in
* This case is expressly provided for by a bill I had the honour to introduce into parliament, commonly called " Lord Campbell's Libel Act," 6 & 7 Vic. c. 96. s. 7., saving the master from criminal responsibility for the unauthorised act of V the servant.
CHAP, terests and passions, but also in the minds of the same indiCLVI- viduals, as they should happen at different times to be agitated by different humours and caprices. God forbid that the laws of England should ever be reduced to this uncertainty I All our dictionaries of decisions, all our reports, and Coke upon Littleton itself, would then be useless. Our young students, instead of coming to learn the law in the Temple and in Westminster Hall, would be obliged to seek it in the wisdom of petty juries, country assizes, and untutored mechanics. Adieu to precision, adieu to consistency, adieu to decorum! All would be perplexity, contradiction, and confusion. The law would be like Joseph's coat, become nothing but a ridiculous patchwork of many shreds and many colours, — a mere sick man's dream, without coherence, without meaning, — a wild chaos of jarring and heterogeneous principles, which would deviate farther and farther from harmony. Yet the prevention of this state is the crime with which our Judges are charged! O tempora! O mores 1 to what are we at last come ?" *
It does seem astounding to us that such a speech should be delivered, and tolerated, and applauded by the ministers of the Crown after the Revolution, and in the latter end of the eighteenth century. It ought to be recorded as showing the progress of public opinion and the improvements of the constitution in recent times. The matter in dispute—the Attorney General's power to file criminal informations for libel, is very immaterial. He might safely be permitted, in all cases as public prosecutor, to put parties accused on their trial, and the institution of grand juries will be preserved in this country for its collateral benefits rather than as a safeguard to innocence against unjust accusation. There is no longer any disposition in Attorney Generals to persecute the press, and if there were, no difficulty is ever experienced in inducing grand juries to find bills of indictment in any cases, however frivolous. Looking to the manner in which indictments for perjury and for conspiracy are used as in
* 16 Pari. Hist. 1144.