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charged with the only unpardonable crime officio is a very gentle expression for a very which can, at this time, be committed. I am harsh thing. 'Ex officio (ihe gentleman well accused of a libel.

explained it to you, when be boasted of bis Murder and sodomy, you know, have in conscience, and his integrity, and duty; for it these our days often found successful solicitors : and the laws agaiost popery (though unre- the means of great persecution. In truth it pealed and in full legal force) are, when re- seems a power necessary for no good purpose, sorted to, thought, by the magistrate who pre- and capable of being to a very bad one. sides bere, too rigorous to be suffered to bave For, although a man may doubt whether a their free course against a religion so destruc- grand jury in times of violent' party would tive of the civil rights of mankind, and so fa- always find a bill of indictment or present, yet vourable to absolute and arbitrary power. But there can be none but that a court of King'swbilst that has been favoured beyond tbe laws, bench would grant an loformation, wherever it nothing beyond the laws bas been thought ri-could, by any administration, be applied for gorous and severe enough against the charge with the least foundation." of libel. Murder, attended with the most ag.

And in another place he says, “ The prerogravating circumstances, has been repeatedly gative which an Attorney General assumes of pardoned; and treason, the blackest treason, filing an Information against whomsoever he against the family on the throne, and (what is pleases, is certainly a reproach to a free peoof much more consequence to us than any fa- ple; and if the regular information awarded mily) against the free constitution of this coun- upon special motion by the King's bench were try, has been not only pardoned, but taken into likewise taken away, I do not think the confavour; and the estales of convict traitors bave stitution would be injured by it: in which case been restored to them and to their families.* the old common law method of indicting for a Whilst mercy and forgiveness, gentlemen, lave libel, as a vivlation of the peace, would be the been thus flowing unnaturally in a full stream means that every body must resort to; and in over the highest mnountains of iniquity, has any my opinion a grand jury are very competent one of you ever spied the smallest rivulet de and the properest judges, whether any publiscending towards the valley of the libeller?cation be destructive to the welfare of the state Has any man charged with a libel (and what or not.” Aud for this last clause which I have bas not been charged as a libel?)— has any man cited, he refers to the valuable treatise upon so charged ever yet met with inercy ? Gentle-Grand Juries, called, · The Security of Eng. men, I do not call back again these things to lishmen's Lives,' attributed to Mr. Sommers. your remembrance in order to arraigu them; The attempt at the time of the Revolution 10 that is not my present business: I only men- take away Informations in the court of Kivg'stion them to gain from you, the only thing I bench, is noticed in the · Letter concerning wish, your attention. You will be pleased then, Libels, Warrants,' &c.; but I had not the pasgentlemen, as one motive for your attention, to sage in my recollectiou when I wrote the Note remember the nature of the crime charged. to the Case of sir William Williams, vol. 13,

Gentlemen, if the nature of the crime and p. 1369. In the case of Rex 8. Mary Jones the rancour with which it is parsued, if that and another, mentioned in that Note, the vexaaffords a strong reason for your particular cau- tious operation of the Attorney-General's Infortion and care and attention in this sort of trials, mation was, that it caused two poor Welsh a much stronger reason indeed will be afforded persons, convicted of a minor offence against the you by the nature of the prosecution. It is revenue laws, to come from the principality called an information er officio.f The term ex to the bar of the court of King's-bench at West

minster, in order to receive judgment, wbich Mr. Horne's mention of the restoration of would have been passed upon them in their own the estates of convict traitors alludes to the neighbourhood, if the proceeding against them Case of general Fraser, eldest sor of lord Lovat had been by indictment. who was executed in 1746. See the proceed- In the case of Philipps and others, Trin. ings against him, vol. 18, p. 530. See, also, 4 G. 3. 3 Burr. 1564, lord Mansfield declared, stat. 14 G. 3, c. 22; 24 G. 3, stat. 2, c. 57;ibat the Court would never grant an Informa28 G. 3, c. 63.

tion upon the application of the Attorney Ge+ In the celebrated • Letter,' which has been neral, in cases prosecuted by the crowo; beascribed to Lord Chancellor Camden, and also cause the Attorney-General has a right himto Mr. Solicitor General Duoning, concerning self ex officio to exhibit one: and in the same Libels, Warrants, the Seizure of Papers, and case he said, “the Attoniey. General may, if Sureties for the Peace or Behaviour, &c. by he thinks proper, summon the parties to shew the Father of Candor,' are alleged with great canse, why an Information should not be exability many objections against the Attorney bibited, before he signs it." General's loformation er officio, of which the And in the case of the King o. William autbor says, “ It is a power, in my apprehen- Davis Phillips, esq. Pascb. 7 G. 3. 4 Burrow, sion, very alarming; and a thinking man can- 2089, De Grey, Aitorney-General, baving on not refrain from surprise, that a free people the part of the crown) moved for a rule upod should suffer so odious a prerogative to exist. the defendant to shew cause, why an InformaIt has been, aud may most certainly be again, tion should not be granted against him, the is certainly so)-ex officio means, that which, verdict against me, because he is a man of bohe dors from a sense of duty. If in this you nour, an uncorrupi man, a pure man of inte. consider only just wbat meets the ear, there is grity, and would not charge me, if he did not no harm in it; it is a good thing: duty is a ibiok me guilty. Let him think what be gond thing. But if you examine the real force pleases; if you do not think me guilty, I care and consequences of the term, as here applied, very liule what he professes to think. I know you will find it to contain every thing that can thai he is manly enough ; and I honour that be inagiord illegal, unjust, wicked, and op- part of his character. He bears a man's beart pressive. For my own part, I an astonished in bis bosom, and (though bis office has made that any mav, at ibis time of day, exercising bim hold the language he does) I defy him not such powers as are not according to law, and to respect me. I know he does. I am sure are much less according to reason, should talk of it. to you, with an open face, of integrity, of bo- Gentlemen, I said that ex officio contained nour, of duty, of conscience ; and that, instead every thing that was illegal, unjust, wicked, of aggravating and shewing you in what the and oppressive ; and I will prove it to you. Es charge which he has brought against me, in officio-(a little specimen of it you have seen) what my crime consists, he has employed half er officio means a power to dispense with all his barangne in boasting of his own character. the forms and proceedings of the courts of jusIf any map in the court who had not knowo tice, with all those wise precautions which our that I was the defendant had come in at the laws have taken to prevent the innocent from time ibat that gentleman was talking of bis in being oppressed by exorbitant and unjust tegrity, bis conscience, and his duty ; I ask, powerwould he not immediately have concluded that Gentlemen, I was thrown off my guard. I Mr. Attorney General was the defendant then own I was. I bad prepared an argument; making his defence ? He must. Let the gen-wlrich I believe his lordship perceived: he tlemau's integrity and hopour be as great as be therefore granted me what l'intended to have tells you it is; wbat has that to do with me? inforced ; and, baving granted it to me, that What has that to do with the charge which lie grant was made use of to prevent me froin has brought against me? except indeed this; gaiving any argument in answer, of any kind. that, baving nothing really to charge me withi, You must have taken notice of it; it is your he sets up his own great, immaculate character duty to take notice. Juries bave been too in opposition to mine; that you may give a much considered as men out of court; and

when an application has been made to the motion was rejected, upon the ground, that if judge to determine upon a point of law, the the Attorney-General thought it right, that an jury has been considered as having norbing to Information should be granted, he might grant do with the matter. No more they have, init himself; if he did not think so, he could not deed, to decide it. But the jury has this to do expect the Court to do it: and lord Mansfield with the matter: they are to inake a true desaid, “ If the Attorney-General should bave liverance; and they will see and will judge auy doubt about the propriety of it, he might whether the defendant has justice done hiin send to the person complained against, to shew or not, even in the practice of the court. I bim cause why be should not grant it." know polbing of the law: I am not sorry for

With respect to an Attorney-General send that: this is not a question of law; and '1 am ing to a person to sbew cause why an lofor bappy to bave Mr. Attorney-General's authomation should not be filed against him, see rity to say, that it is "the plainest, the simwhat was said in parliament upon tlie conduct plest question ; and that it was too obvious for of the Attorney-General of Ireland in the case him to foresee a difficulty in it.” He said, it was of Fitzpatrick, A. D. 1812, 23 Parl. Deb. pp. "ibe plainest of all the plain and simple mat996. 998. 1081. 1086, 1087. 1111, et seq. ters that were ever laid before a court;" and

For more concerning the Information er being so, you are the best judges of it. And officio, see the Case of sir William Williams, indeed the nature of a libel always makes a vol. 13, p. 1369. See, also, 16 New Parl. Hist. jury the best judges of it; for a libel (if it be pp. 40. 1127. 1175.

so) is intended for mischief: it must therefore Mr. Hargrave bas, more extensively than has be intelligibie to the people, or no mischief yet appeared in print, investigated the subject could be produced by it. 'If a man writes a of the Luforination ex officio, as well as that of libel that a common jury could not understand, the examinableness of commitments by a House (and you are a special jury, gentlemen) he of Parliament or Court of Justice, for conteinpt must fail in his design. Observe then, gentleor breach of privilege. It is to be hoped that men, this advertisement is the plainest and the result of his investigations may be made simplest of all the matters that were ever laid public.

before a court in wbich the Attorney-General See, also, distinctions as to the rights of the was concerned: and in these two years and a Attorney-General in matters of practice, when quarter that he has had to bring it to trial, he he proceeds for the crown as formal prose. has not been able to see a difficulty in it; and cutor; and when he proceeds for the crown as yet he has had a special jury to determine it: actual prosecutor, in 2 Stra. 216, (cit, vol. 17, a common jury could not be left to determine p. 911), and 4 Burr, 2458.

it, and that I will explain to you hereafter, I

calise,

know very well, that not only juries, but many stop the cause without coming to a decision, other persons wbo apply even to the practice of but thinks he shall get a verdict in bis own the law, never trouble their beads to take into favour, and therefore suffers the cause to go coosideration altogether tbe enormous wicked- on ; if he loses the verdict, he suffers nope of ness of the powers claimed in this sort of pro- those displeasing consequences which other secution. It shall be my business therefore to men must suffer; for the crown pays no costsexplain it to you. You sball julge of the ho- none at all:- he can prosecute as often as he nour, and integrity, and conscience of the gen. pleases, and whom he pleases, and pays no tlemen who use them and enjoy them.

costs! But that is not all. Suppose be bas And, first of all, an information means no convicted six, seven, or eight men for the same more than an accusation. Appeal, indictinent, offence, he exercises the sovereigo power of information, are, as I take it (and I shall be pardon; he calls to judgment which of them corrected if I am wrong; it will be well cor- he pleases, and lets go by which of them be rected both by the Attorney-General and the pleases. It bas bappened in the prosecution Judye)-I take it they mead no more than ac- for this very paper :-out of several convicts, cusation ; and they have a different specific but three have been called up to judgment. name because of the different manner in which That in some part 1 sball explain to you. But that accusation is brought forwards. Then, that is not all: the map or the men whom he gentlemen, This is an accusation by duty; out calls up to judgment, be, the prosecutor, agof duty: and by this means, by this his duty, gravates their punishment as he pleases; and the Attorney-General is enabled, contrary to that I will prove to you. Jo that, I think, I the laws of the land, to accuse whom he pleases, shall not be cooıradicted, because I have the and what he pleases, and when he pleases authority of the judge who is now trying this Aud (it be pleases) he only accuses them, and never brings it to trial: he goes on harassing So that in every stage of the business you the subject with information upon information, will find that there is an unjust, an illegal, a if he pleases, and never brings the man to wicked, and an oppressive advantage. And trial. "If, however, out of bis mercy, or out of that you may not think that I am declaiming his resentiment, he does chuse at last to bring without any proofs, I will so far trespass upon it to a trial; why, gentlemen, he, in general

, your time as to come a little more to parti. tries it by whom he pleases. Gentlemen, when culars, it comes to trial, he tries it in wbat inanner he And first, gentlemen, for the beginning of pleases, be takes what advantages he pleases, such prosecution. He brings it on as be and no reason will be given for those advan- pleases ; be bas no resort to a grand jury, or tages. Gentlemen, during the course and pro- ibe ccuntry to accuse; but, contrary to express gress of the trial, it

, notwithstanding those ad- law, and what is much stronger, contrary to vantages he has already taken, he sees some the strongest and the very fundamental reason reason to suspect ibat the verdict is likely to go of that law, he has no recourse at all to a grand against him, he claims a right to stop it if he jury; and ibat because it is the pretended suit pleases, without any decision ; for he claims a of the crown. Now, gentlemen, if we want right to withdraw a juror, as it is called ; that to enquire (which is not often done, i know, is to say, You shall not come on to a verdict. in courts of justice) why any grand jury? why The Attorney-General must not deny it, unless a grand jury at all? It is not owing to tbe indeed the practice of the Court is changed in nature of the offence; grand juries are in that particular.

capital offences and in small offences. Why The practice of the Court we see does some- are a grand jury to find the accusation ? for times change: for I have it now from the you must not be led away by technical terias. Judge, that in all cases the prosecutor has a Ioformation, appeal, indictment, all mean one right to reply; which truly I did not before and the same thing; accusation brought by think to be the practice: but, however, the Bar different persons, that is the only reason of will take notice now; for they will soon have their different appellations. If that is not the cases in which they may enjoy that benefit and reason of the difference of the names, I shall privilege, if it be one: the prosecutor has a be correcteil. right to reply, even though no evidence is Then why a grand jury ? I would tell you called for the defendant. I shall see some in my own words, if I had not tbe worrls of more new methods of proceeding in trials; I a person more to be relied upon. Sir John have seen a good many. I thiok there must Hawles says—these are his words—"The true be somewhere or other in the court a gentle- reason of a graod jury-" man with spirit enough, --some gentleman or But, gentlemen, I shall just obviate an obother-many I hope ibere are, who will (upon jection first, because I shall not have an opsome trial where they may be prosecutors), who portunity after it is made. It may be objected, will take that advaniage that has been allowed that I have taken this from the State Trials; to-day, and will offer to reply where no evi- and I bave heard from the bench that the State dence is called. There were some ball words Trials are no authority. I have also beard I know dropped about matter of law, but I from an officer very high in the law, and of hope that will be made plain.

very great acknowledged abilities, who sits by Wells but if the Attorney-General does not the side of the Attorney-General, that they aro • a much better authority (I speak it because If. gentlemen, there are other reasons for a I heard him say so) that they are a much grand jury than these, if there are others, you 'better authority than the scrawl of a name will have them; and though it will not be perJess Reporter.' But I will tell you why the mitted to me to do (what with the utmost 'exState Trials in certain cases are the best au- tent of my ignorance of the law, which is very thority; and that is, for this reason: because great, I am still sure I could do by common they are equally good authority, whether wbat sense and reason-1 mean, refute those other they relate is trae or false. li is a strange as- reasons ;) I say, though I shall not be persertion, but their authority is equally good for mitted to do tbat bere, you and all the world the purpose for which they are brought, whe- will be able, at your cooler bours, to determine ther the things they tell are true or false. I opon the force of those reasons that shall be have heard them called from the bench (and given, from whatever authority they may called so for very good reasons) “ libels upon come. And in this respect I shall be happy' the judges.”_** The State Trials are so far for I shall have the bonesty and the underfrom being an authority, that they are libels standing of the public at large to judge of those upon the judges.”-Are they so ? Then they { doctrines which my imbecility miglit pot perare still better authority than if they were true; mit me sufficiently to refute. that is, authority for the purposes for wbich Gentlemen, it is true that the court of King's they are brought ; that is, for the condemna- bench bas also assumed a power of accusing tion of the wicked doctrines which they expose. men. They say they may safely be trusted For are they libels upon the judges ? Was the with it. I believe their claim illegal; but I intention of those who wrote them to blacken have nothing to do with it: and I ackuowledge their characters ? Would the libellers then at that it is much safer there, than in the bands that time of day (some a bundred, two, or three of an Attorney General, who is wbipped in and hundred years back, or according to the length whipped out just as the minister, whose friend of time) would an enemy have put into the be is, goes in or out. judges' mouths doctrines wbich were honour. But that is uot all. The court of King'sable ? No; if he intended to libel them, he has bench cannot grant au information without an falsely made them the propagators of those affidavit, without an accusation upon oath ; no doctrines which their souls abhorred. Can one of the judges of the court of King's-bench there then be a stronger evidence about the can do it; and yet they are a little more inopinion which men had formerly concerning dependent (they have fewer hopes, and therethese doctrines? If there cannot, then there fore fewer fears) than the Attorney-General; can be no stronger authority against the doc- yet no one of ihe judges of the court can actrines exposed by the State Trials. True or cuse a man. It must be the whole court, and false, the State Trials are the best authority they must do it in consequence of an oath. If which can be had ; and better if they are false I am wrong, you will bave the pleasure of conthan if true.

tradicting it (iurning to ibe Attorney General). Then, gentlemen, I will proceed to my au- But the Attorney-General accuses iep neither thority: * The true reason of a grand jury is upon the oath of others, nor yet upon his own the vast inequality of the plaintiff and defen- oath. If he believes the matter of the accusadant; and therefore the law has given this pri- tion true, it is but the belief of one man, and vilege to the defendant on purpuse, if it were he a prejudiced man, and the most improper possible, to make them equal in the prosecution man in the kingdom for bis authority to be and defence, that equal justice may be done taken in such a case. But, gentlemen, what between boih. It considers that the judges, is much worse, it frequently happens that no the witnesses, and the jury, are more likely to man whatever avows the accusation, or believes be influenced by the king than by the defen- it; no, not the Attorney-General himself wbo dant: the judges, as having been made by him, tiles the information. I will prove it by.and. and as it is in bis power to prefer or reward by, even in the case of the Attorney-General them bigher : and though there are no just who filed this declaration. Gentlemen, I shall causes for them to strain the law, yet there are desire by-and-by, for your satisfaction and such causes which, in all ages, have taken mine, to find out wheiber there is one man in place, and probably always will. Nor was it, the country that believes me guilty of the nor is it, possible but that the great power of crime laid to my charge; a crime of that na. enricbiog, honouring, and rewarding, lodged in ture that is to have a punishment which is the king, always bad and yet must bave an called by the law a temporary death, an exclujofluence on the witnesses and jury; and there- sion from society, imprison nent. The appafore it is that the law has ordered that at the rent object of this prosecution is to take what king's prosecution no man shall be criininally little noney out of my pocket I may have questioned" (this is a criminal question) “no there, and to imprison me, and so exclude me man shall be criminally questioned unless a from that society of which I have rendered granil jury, upon their own knowledge, or upon myself unworthy. However, I have the plea• the evidence given them, shall give a verdict that sure to see that there sits a gentleman by the they really believe the accusation is true."* judge who is now trying me, who, as well as

myself, bas charged the king's troops with See rol, 8, p. 838.

murder; a charge which at that time excited

1

great abhorrence and detestation against him... for there is an expence attending it. The genThe judge and that gentleman have been tleman, I suppose, would not be thought to be laughing all the time of this trial; they have unnecessarily lavish of the income of the crown, enjoyed each other's company exceedingly [a which has lutely been found so deficient: he great laugh for some minutes of the wbole au- surely would not voluntarily throw it away. dience]. Well, gentlemen, (turning towards And yet a man that came from Brentford (my Juru Mansfield and Mr. Wilkes) I have caused clerk formerly) had two guineas for bis exanother laugh between the gentlemen ; but it pences. He is a very honest man; it was a gives me pleasure to think, that if ever I am to very lucky matter for bim: I wish, for bis come out of prison again if you are so kiad as sake, that he might be called a witness against to put me there). I tou may have the honour (if me once a week upon such a prosecution. it be ope) of sitting cheek by cheek with the Now if the ground of the charge bappens to judge, and laughing at some other libeller. 1 be, as this is, “ of all plain and simple matters said, if I come out agaio–because if it is pos- that ever were laid before a couri the most sible that I should be put there for this charge, simple;" it is a very strange circumstance that I believe that will never happen. I will never the Attorney General should chuse to have a cease repeating the charge I have made, till special jury to try a thing in which there is those men are legally tried and acquitted who nothing special! Special juries were never in-, are guilty of what I call murder. I will not tended or appointed for that purpose. They be contented with one, nor with two, nor with were inteniled to examine into merchants actwenty juries. I will repeat the charge of counts, or any critical or nice matter; for you murder upon the troops every day, if this doc. know we are told that you have nothing to do trine gets so far even as to a doubt; and I call with the law: you do not therefore want any upon the Attorney-General now, if he may, if legal education; and yet special juries are alhe can, if he will venture without the per- ways made use of in matters of libel. And inmission of those ministers whose humble ser- deed why should they not? It costs the At-. vant alone be is; if he may venture, I call torney-General notbing. In the case of any upon him to pledge himself to bring an infor- other prosecutor, it would be at his expence; mation for a seditious libel against the king. but the crown pays this, that is, the people pay and the government every time I charge the it against themselves. However, that is no troops with murder. I promise him I will give objection to Mr. Attorney-General ; for if you bim business enough, and I hope he will (if he look at the law-expences in the civil list of the may venture to do it) promise to file an infor- last year 1776, as they are delivered in to parmalind every time I charge them with murderliament, you will find that they amount to the wben they commit it.

little insignificant sum of 60,0001. A defendant But, gentlemen, I have wandered; though, against the crown is in a blessed situation! Bute if I am to be shut up so soon, a few excursions as the expence is no reason against the Attorbefore it rnay be excused me.

ney-General chusing to try it by a special jury, The Attorney-General does not apply then he has a very strong reason for chusing a speto the grand jury, and there is no person whose cial jury; and that is, because, by that means, accusation upon oath it is.

be tries it by almost whom he pleases: 1 do When he has filed his information, be pro- not mean by the particular individuals whom ceeds or not upou it as he pleases; be files he pleases, but generally by that description of fresh informations if he pleases, when he men that he pleases. Now this, gentlemen, is pleases, as often as he pleases; he uses it if particularly unfortunate in my case; for the be pleases as a vexatious method which may Attorney General said (I heard him say it upon barass and ruin and destroy the greatest for the first trial for this advertisement) that ninetune in this couptry. It bas been used vexa- tenths of the people approved of all the mealiously. I do not say by the present Attorney-sures of the ministry relative to America. The General; 1 do absolutely acquit him of that; method of striking a special jury seems at first he never, that I koow of, has been guilty of sight fair enough. Forty-eight men are struck that practice: but I do know Attorney-Ge- from a book. The defendant and the proseperals who have: but that I may not seem to cutor each strikes off twelve. That seems very Jibel all the world, I will not mention them nor fair and just; but it is very far from being so the case.* When the Attorney General has fair; for if nine-tenths of the people (which he brought his accusation, and renewed and de- himself acknowledged) are of that way of thinklayed it as much as he pleases, if he chuses to ing (a way of thinking contrary to what I may try it, I said, he tries it by almost whom he well seem to be) you will observe that the Ais pleases. It may seem perbaps a strange thing torney-General strikes off iwo-lenths and half for me to say to a jury who are trying my a tenih out of the forty-eight; so that he will cause ; but it is a fact; for be is always sure be sure not to have one man of my way of to have a special jury for the trial of this sort of thinking concerning America: I mean, it will charge. Libel is always tried by a special be so, if at least they know what they are about: jury. Now this seems a very comical thing; so that you see there is sure to be a little pre

juq.ce against the defendant in the minds of the This allusion was I believe designed to juny. li is true, indeed, that the opinion of the apply to sir Dudley Ryder.

jury concerning the measures relative to Ame?

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