queftion brought in fo early in the feffion, and which was not debated in a full house.

Nov. 28.

A new motion on the feemingly hopeless fubject of the Middlesex election having been made in the houfe of Lords by the Earl of Chatham, which tended to a declaration that the capacity of being chosen a reprefentative of the people in parliament, was under certain known restrictions and limitations of law, an inherent right of the subject, and cognizable by law, and is accordingly a matter wherein the jurifdiction of the houfe of Commons (though unappealable as to the feat of their member) is not final or conclufive, though it met with the ufual fate of those which had been propofed upon this matter, was occafionally the means of bringing out another debate, upon a new, critical, and very interesting fubject.

The nobleman we have mentioned, in the courfe of his introductory fpeech upon the motion, made a digreffion to the prefent conduct and mode of proceeding in our courts of justice, particularly the modern method of directing a jury from the bench, and giving judgment in cafes of profecution for libels. It was advanced upon this occafion, that the conftitution of this country had not only been wounded in the houfe of commons in the material right of election, but in the court of King's Bench, by the immediate difpenfers of the law; that doctrines no lefs new, than dangerous in their nature, had been inculcated in that court and that particularly, in the charge delivered to the jury on Woodfall's trial, the directions

were contrary to law, repugnant to practice, and injurious to the deareft liberties of the people.

As the noble Lord, who was the fubject of these severe reflections, was then prefent, he naturally entered into a defence and juftification of his conduct, in which he attributed the obloquy thrown upon the court at which he prefided, partly to the fpirit of party, and partly to the licentioufnefs of the people, who were become impatient of all fubmiffion to law, order, and government; the prefent charges he also attributed to the ignorance of the accufer in matters of law, and his receiving his information from fpurious printed accounts of trials. That the directions now given to juries, were no. thing novel, they had ever been the fame, nor had they been once called in question till this moment; that he had always in one uniform manner told a jury, that they were to judge of what appeared by the evidence in court, both refpecting the publication, and refpecting the juftification of any libel; where no juftification of the matter in the information was entered into, they were to find, according to their judgment, whether the inuendo's and the criminal inference in the information, were fuch as the paper deferved. That he fhould be at all times proud of changing his opinion, when it appeared to him that his judgment was improper; and had told the courts upon all trials where he prefided, that if he was wrong in his direction he would moft willingly be fet right, which might be done by an arreft of judgment; for if a direction to a jury was improper, the whole verdict was null and void, and a

new

new trial must be granted; but that in fourteen years no objection had ever been made to his conduct in this particular.

To this it was replied, that the very directions which were now avowed, correfponded with the doctrine which was publicly imputed to the court in question, viz. That the queftion of a libel, or not libel, was merely a matter of law, and was to be decided by the bench; and that the only question to be left to the jury to determine, was the fact of printing and publifhing that upon this principle, fo fubverfive of the laws, and repugnant to the constitution, it was declared from the bench, upon the trial for an imputed libel already mentioned, that if the jury, inftead of adding the word only to their verdict, had found the defendant generally guilty of printing and publishing, they would have found him guilty of the libel; fo that the criminality of the fact was not at all to be confidered, and the man might have been punished though the paper had been perfectly innocent. It was therefore urged in the strongest terms, that a day hould be appointed for an enquiry into the conduct of the judges, and that the directions in question, fhould be fully stated, and laid properly before them.

What contributed to give great weight and import to this debate, was the active and public part which the late lord-chancellor took in it. He faid that having paffed through the highest departments of the law, he was particularly interefted, and even tied down by duty, to urge the making of this enquiry; that if it fhould appear, that any doctrines had been inculcated, con•

trary to the known and established principles of the conftitution, he would expofe and point them out, and convince the authors to their faces of the errors they had been guilty of; that he could not from his profeffion, but be fenfibly con. cerned for the present difreputable ftate of our law courts and fincerely to wish that some effectual method might be taken to recover their former luftre and dignity; and that he knew of no method fo effectual as the proposed enquiry; if the fpirit of the times has fixed any unmerited ftigma upon the charac ters of the Judges, this will purify them, and restore them to the esteem and confidence of their country; but if the popular rumours have unhap pily been too well founded, we owe it to ourselves, and to pofterity, to drive them indignantly from the feats which they dishonour, and to punish them in an exemplary manner for their malverfation.

The gauntlet being thus thrown down between the two great fages. of the law, accompanied with charges of the most interefting nature, and with circumstances, which were fufficiently provoking, no doubt was made but that it would have been immediately taken up, and that a day being appointed for the enquiry, the difcuffion would have proved as replete with the molt confummate learning and knowledge of the law, as the matter was of weight and importance to the public. This however was not the cafe; and the original matter of the motion having been recurred to, the queftion of adjournment was propofed and carried.

A motion had been made in the Houfe of Commons, the day before this debate happened, to bring

in a bill, to explain amend, and render more effectual an act of the 4th and 5th of William and Mary, to prevent malicious informations in the court of King's Bench, and for the more easy reverfal of outlawries in that court.

The intention of the propofed amendment was to reftrain certain powers lodged in the hands of the attorney-general, which enabled him to file informations, and carry on profecutions ex officio, without the interference of a grand jury, or going through the ufual and eftablifhed forms obferved by the courts in all other cafes. Some late inftances of the exercise of this power, in the carrying on of profecutions for libels, had been the caufe of much popular complaint and difcuffion without doors, and were undoubtedly the caufes of the prefent motion.

It was faid, that this power was fcarcely lefs compatible with a free government, than that of the ftarchamber, to which it is nearly allied, and partakes of the fame nature; that as the attorney-general is an officer removeable at pleafure, and in the of way great emolument and promotion, fo dangerous a power fhould not be lodged in his hands, which muft at best, in fuch circumítances, be odious and fufpicious, and is in reality to himfelf a trap laid for his virtue, by which he may be frequently reduced to the fevere neceflity, of either facrificing his confcience and his duty, or of lofing his place, and along with it the flattering profpects of future advancement in life.That we are not to expect, much lefs to depend upon, extraordinary virtues in mankind, and we are therefore to fuppofe, that

an officer, whofe existence depends totally upon the breath of a minifter, must act immediately under his orders.

That, in thefe circumstances, the attorney-general can, by his own mere motion, or in obedience to the arbitrary mandate of a minister, give any name and import to any paper he pleases; call it an infamous, a feditious, or a treasonable libel: after this arbitrary conftruction, this difcretionary name, he files an information, and commences a profecution, without any other affidavit, without hearing any evidence, without examining any witnefs, or making the least previous enquiry. If the culprit, fhould, in the courfe of the trial, be able to juftify his conduct; or if the attorney, defpairing of fuccefs, fhould enter a noli prosequi; yet he will probably be ruined by the expence. Thus any perfon, obnoxious to a minifter, or to an attorney-general, is liable by this process, however unjustly, or without even the fhadow of a crime, to be oppreffed or ruined at will; and the attorney-general is, in the first inftance, abfolute master of the perfon and property of the most. innocent man in the kingdom; he may file an information against him, he may get him apprehended, and he may ruin him with cofts.

It was argued, that this inftitution, whether equitable or not, conftitutional or otherwife, does not anfwer the end for which it is intended, which is the speedy punishment of libellers; on the contrary, experience fhews, that before the attorney-general can get half through the neceffary process by information, he might have got

the

Former inftances were brought of an improper exertion of this authority; and of an attorneygeneral, whofe conduct was fo flagitious, that it occafioned his being brought to the bar of that houfe, where he had no other method of exculpating himself, but by fhewing that he was merely a paffive instrument in the hands of others; and that he had received the information which was filed in his name, literally as it ftood, from the fecretary of state. Some exertions of this power in the late profecutions were alfo brought in queftion; and it was defcribed to be a badge of flavery upon the people, and infifted, that if the true definition of a free-man, is a man fubject to known and invariable laws, no man in England could be called free, while it exifted in any form.

In oppofition to the motion, the antiquity of the office was much infifted upon. That the attorneygeneral neither claimed nor exercifed any power at prefent, but what was always appendant to his office; that it was a part of the common law of the land, which

and the bafis of our popular liberty. That if its being liable to be abufed was a fufficient reafon for its being abolished, the fame reafon mult militate againft all power, of what nature foever; as all power was liable to abufe.-The danger of making innovations in an cient eftablishment, and of fubftituting the hafty and crude acts of the imagination, for the long experience of ages, was pointed out; that our conftitution was now the admiration of the world, and it behoved us to take care that we did not, by tampering too much with the foundations, loofen them in fuch a manner, as to draw the whole edifice down upon our heads.

That the inftance which had been given, of an attorney-general's being cognizable to that houfe, and liable to its contreul, ' was the ftrongest proof that the power in his hands could not be dangerous, and would never be permitted to become an inftrument in the hands of government for the oppreffion of the people.That the attorney-general, like every other crown officer, is refponfible for his conduct, and if he acts contrary to law, is amenable to juftice; and that in cafes of official information he reprefents the grand jury, and undertakes the profecution at his peril.--That profecutions were now in hand, which were undertaken at the request of the Houfe; and it was a ftrange measure to require that they should annihilate a power, at the very inftant that they found it neceffary to make ufe of it. It was further afferted, that the taking away this power would be expensive and mifchievous to the parties under pro

fecution,

fecution, as a motion for an information by a rule of court lay much heavier in point of coft, and in all probable cafes would be granted without difficulty.

It was faid, that these powers were granted in much more tem. perate times than the prefent; and hat now, when every degree of centioufnefs feemed arrived at its ultimate extreme, instead of giving them fresh energy, it was propofed to take them totally away: that they were at present infufficient to punish the guilty, much less to opprefs the innocent; and that they could not preferve the most facred characters from the most outrageous abufe, nor procure the fmalleft compenfation for the injury.

In the course of these debates, an enquiry was propofed into the conduct of the judges, and the administration of justice in the fuperior courts; though this produced a good deal of animadverfion, as it did not originate with the fubject in debate, it was paffed over for the prefent, and the question being at length put upon the motion, it was rejected by a great majority. It was however evident, from the temper that appeared upon this occafion, that the enquiry was a matter refolved upon by some perfons in the oppofition, and would foon be brought on in form.

A motion was accordDec. 6th. ingly made a few days after, for a committee to enquire into the adminiftration of criminal justice, and the proceedings of the judges in Weftminster-hall, particularly in cafes relating to the liberty of the prefs, and the conftitutional power and duty of juries. The gentleman who feconded this motion, avowed its particular al

lufion to a great law lord, whom he fpecified by name, and pledged himself to arraign him, if the enquiry was granted.

Though the motion was only for an enquiry, and seemed founded upon a public report, which had gained general credit, that the judges of Westminster-hall were unfriendly to juries, and had laid down falfe law to mislead them in their verdict; yet, befides a great number of others, which were collaterally introduced in the course of the debate, the two following' fpecific charges were brought by the gentleman who made the motion, in fupport of it, and which he offered to prove by refpectable witneffes, who were ready to ap-. pear at the bar of the House for that purpose-viz, of allowing the jury to judge only of the fact, and of referving to themselves the right of judging of the intention

-And that a master had been adjudged to be responsible in criminal cafes for the misdemeanor of his fervant.

It was obferved, as to the first of thefe allegations, that no doctrine could be laid down in the law, of a more dangerous tendency; and that it was equally repugnant to the principles of the conftitution, and to the established practice of the courts. That this appears manifeftly in the cafe of manflaughter: a fon kills his father; the matter of fact is proved and acknowledged, and is, fo far a murder of the blackest die: the jury however examine into the circumftances, and find that it was an accidental misfortune, in which the intention had no fhare, and judging folely from thence, acquit the culprit from