struments of revenge, vexation, and extortion, it would be a greater improvement upon our juridical institutions to enact that no such indictments shall be preferred without the sanction of a responsible public officer, than that the power of filing criminal informations should be entirely abolished. * But the observations by which Thurlow defended it were most insulting to public liberty, and if now offered by a law officer of the Crown under what is called a Tory or Conservative government, would insure his being disclaimed by his leader overnight, and dismissed from his office next morning. CHAP. CLVI. 1770. But Mr. Solicitor Thurlow was so much applauded and Dec. 6. encouraged that on Serjeant Glynn's motion soon after for an inquiry into the administration of criminal justice, he con- against trial by siderably exceeded his former doings; for he not only pro- jury. posed a severe censure upon the mover, but plainly intimated an opinion that trial by jury should be abolished in all cases of libel, and that the liberty of the press should be in the exclusive guardianship of a Judge appointed by the Crown. "If," said he, "we allow every pitiful patriot thus to insult us with ridiculous accusations without making him to pay forfeit for his temerity, we shall be eternally pestered with the humming and buzzing of these stingless wasps. Though they cannot wound or poison, they will teaze and vex. They will divert our attention from the important affairs of state to their own mean antipathies, and passions, and prejudices. I hope we shall now handle them so roughly as to make this the last of such audacious attempts. They are already ridiculous and contemptible. To crown their disgrace, let us inflict upon them some exemplary punishment. In deciding the question of libel, so many circumstances are at once to During my seven years' Attorney Generalship I filed only one criminal information against Fergus O'Connor for libels in the "Northern Star," inciting the people to insurrection and plunder. There could not have been the smallest difficulty in having had an indictment found by the Grand Jury of the county of York; but I wished to take upon myself the whole responsibility of the prosecution. Cobbett (I think with some justice) complained that the Attorney General, instead of boldly prosecuting him by his own authority, had recourse to the subterfuge of an indictment, - and by this, among other topics, got an acquittal. СНАР. Jan. 23. 1770. Thurlow is made Attorney General. Mr. Attorney General Thurlow is In be kept in view, so many ponderous interests are to be weighed, so many comparisons to be made, and so many judgments formed, that the mind of an ordinary man is distracted, and confounded, and rendered incapable of coming to any satisfactory conclusion. None but a judge who has from his infancy been accustomed to determine intricate cases, is equal to such a difficult task. If we even suppose the jury sufficiently enlightened to unravel those knotty points, yet there remains an insuperable objection. In state libels their passions are frequently so much engaged, that they may be justly considered as parties concerned against the Crown. No justice can therefore be expected from them in these cases. order to preserve the balance of our constitution, let us leave to the Judge, as the most indifferent person, the right of determining the malice or innocence of the intention of the libeller. Much dust has been raised about civil and criminal actions; but to what purpose? Is not reparation to be made to the public for any injury sustained by the public as much as to an individual? Is the welfare of the nation in general of less consequence than that of a single person? Where then is the propriety of making such a bustle about the malice or innocence of the intention? The injury done is the only proper measure of the punishment to be inflicted, as well as of the damage to be assessed."* This tirade against trial by jury, and confounding of civil injuries to individuals with crimes against the state, proved so agreeable to the higher powers, that at the end of a month Thurlow was promoted to the office of Attorney General, in the room of De Grey, laid asleep on "the cushion of the Common Pleas," and the Government was thereby supposed to be greatly strengthened. When he made these speeches he was exceedingly exasperated against juries, by reason of the verdict in the case of Rex v. Miller. This was a criminal information for printing and pubhis prose lishing Junius's celebrated letter to the King. It was contrived that the Solicitor General, by reason of his supposed superior beaten in cution of 16 Parl. Hist. 1290. CHAP. CLVI. Letters. vigour, should conduct the trial on the part of the Crown. Notwithstanding his doctrine, that the jury had nothing to do with the question whether the letter was a libel or not, he the printer was at great pains in addressing them to impress them with of Junius's an opinion of its criminality. More suo he thus discoursed of the liberty of the press: -" Undoubtedly the man who has indulged the liberty of robbing upon the highway, has a very considerable portion of it allotted to him. But where is the liberty of the man who is robbed? When the law is silent, reputation is invaded, tyranny is established, and an opportunity is given to venal writers to vent their malice for money against the best characters in the country. Do not, under pretence of protecting the liberty of those who do wrong, encourage them in the destruction of all laws human and divine." He then goes over the whole letter, sentence by sentence, denouncing its atrocity, and exclaiming, "For God's sake is that no libel?" Yet he concludes by telling them, very peremptorily, that they have only to consider whether the defendant printed and published the letter, and by cautioning them not to imitate the conduct of the infamous author who had become the accuser of his King, and attacking all mankind, had not the courage to show his face, or to tell his name. The clearest evidence was given that the defendant had printed and published the letter; but after a reply from Mr. Solicitor, more furious than his opening, the jury thought fit to find a verdict of NOT GUILTY to the unspeakable delight of the assembled crowds, who rent the air with their acclamations. What added to his mortification was, that another prosecution against Woodfall for printing and publishing the same letter was conducted by Sir William de Grey, the Attorney General himself, who, displaying much more moderation and mildness, prevailed upon the jury to find a verdict of "Guilty of printing and publishing," although they added the world "only," on which account a new trial was granted.† CHAP. 1771. Case of Brass Crosby and Alderman Oliver for the messen Thurlow's first appearance in the House of Commons as Attorney General, was on the memorable occasion when March 28. Crosby the Lord Mayor, and Oliver an Alderman of London, were brought to the bar, having discharged a printer, arrested by order of the House for publishing debates,—and having committed to custody the officer of the House who executed the arrest. Alderman Oliver, instead of making any committing apology, said "he owned and gloried in the fact laid to his charge; he knew that whatever punishment was intended, nothing he could say would avert it; as for himself he was perfectly unconcerned; and as he expected little from their justice he defied their power." A motion being then made to send him to the Tower, which was resisted by Sir George Savile and Serjeant Glynn, Mr. Attorney Thurlow, resorting to the genus dicendi interrogans, of which he was particularly Thurlow's fond, exclaimed, "Shall it be said, sir, that this House is ger of the House of Commons. furious speech against them. He is chastised by Dunning. dishonoured in maintaining its confirmed privileges? Is not the generosity, is not the pride of the House, alarmed by so degrading a competition? Have not the members of this House as conscientious a veneration for oaths as the Mayor of London? Or are they afraid to punish his licentiousness, when he is not afraid to insult their authority? All that's man, all that's Briton in me, is firing in my bosom while I ask these simple questions! Well may our enemies say that we have sacrificed the dearest ties that bound us to our constituents, if we now suffer the whole body of the English Commons to be trod upon by the instruments of a despicable faction. Have we so long defended our privileges against the tyranny of kings, to fall at last before the turbulence of a seditious city-magistrate? Or has the constitution given us sufficient title to guard against the encroachments of the Crown, without means of crushing the ambition of an Alderman?" Mr. Attorney received a very severe chastisement from Dunning, who used language consistent with the just preservation of parliamentary privileges, and to be for ever had in remembrance as a caution against the abuse of it. people will naturally inquire how we, their representatives, 66 have executed our trust, and will as naturally execrate our names, If once we vilely turn that very power To sap the bulwarks of the public freedom.' Sir, the people have already opposed us by their magistrates, and they will oppose us farther by their juries; - though were we, in fact, as much respected as we are already despised, - as much esteemed as we are universally detested, — the establishment of tyranny in ourselves, who are appointed for no purpose but to repel it in others, would expose us to the abhorrence of every good Englishman. Let us, therefore, stop where we are; let us not justify oppression by oppression, nor forget our posterity if we are regardless of our country. Let even the abject principle of self which actuates, I fear, too many of my auditors, for once operate in the cause of virtue." Alderman Oliver was sent to the Tower by a majority of 170 to 38, and Crosby, the Lord Mayor, by a majority of 202 to 39 *; but by this struggle, the right of publishing parliamentary debates was substantially established, and it is therefore to be reckoned a remarkable æra in our constitutional history. † СНАР, CLVI, In the following session the Minister was much puzzled in May, 1773. meeting General Burgoyne's motion to censure the proceedings of Lord Clive in the East Indies, by which a new empire was added to the Crown of England. The considerate were aware that this extraordinary man deserved to have statues erected to him, but there was a public clamour against him which the Government was afraid to face, It was, there 17 Parl. Hist. 58-163. †The right never has been questioned since. There is still a foolish standing order of both Houses against publishing debates; but this is a mere dead letter, and the minister who would try to enforce it would be like Canute on his throne forbidding the flowing of the tide. Indeed, there are very few members who would now speak if their speeches were not to be reported; and after a division, proceedings are suspended till the reporters' gallery is re-opened.-The effectual protection of the press and of the public would require an enactment that no one should be liable to an action or indictment for publishing a fair and bona fide report of the proceedings of either House. I introduced a clause to this effect into my Libel Bill; but though it was warmly supported by Lord Denman, it was opposed by Lord Brougham, and I could not carry it. |