PRICES of STOCKS, &c. in A UGUST,

1771.

AVERAGE PRICES of GRAIN, by the Standard WINCHESTER Bushel.

Wheat Rye.

Barley.

3. d.

s. d.

s. d.

s. d.

s. d.

8

2

6

a 18

3

3

Wheat.

1771.

H

AVING in our last concluded the great debate upon the commitment of the city magiftrates to the Tower, we now turn to the celebrated motion made by Curius Camillus (Mr. Serj. Gn) on the 6th of December, for a committee to enquire into the examination of criminal juftice in Westminster-hall; particularly in cafes relating to the constitutional power of juries.

It is true a prior queftion relative to the act of William the Third, which empowers the Attorney General to file informations ex officio, produced a long debate on the 27th of November; but as the general adminiftration of criminal justice, is of more importance than the feverity of any particular law, we are perfuaded our readers will think their information belt anfwered, by having the former first prefented to their hands.

CURIUS CAMILLUS.
Mr. Prefident, Sir,

WHEN any dangerous innovation threatens the conftitution, it is the duty of every Englishman to take the alarm, and to guard fo invaluable a poffeffion. Freedom is an inheritance left us by our forefathers, and we ought to tranfmit it undiminished to our pofterity. Not only our own happiness, but that of future ages is at ftake; and if, through indolence or timidity, we relinquish the one, we cannot abandon the other without a violence to humanity. If the charges, which I am going to ftate, are well founded, this is at prefent the cafe. The palladium of our liberties and properties is undermined, if not deftroyed; and in the midst of an imaginary fecurity August, 1771.

every thing is loft, which should be dear to a brave, to an intelligent peo ple. Unfit as the infirmities of my body make me for taking the lead in this affair, yet I could not perfuade my felf to be wanting to my country in fuch an effential caufe. If I fhould not answer her expectation, nor that of my friends, they must take the will for the deed; for, however weak the fleth may be, the fpirit is strongly inclined to their fervice.

A report is univerfally circulated, fir, that the judges of Westminsterhall have invaded the power of juries: it is not only affirmed, that they encroach upon the conftitutional right of jurors, but that they lay down falfe law, in order to mislead them in their verdict. This, if true, is a crime of the firft magnitude; becaufe, if ever the liberties of this country are loft, they must be loft in Westminster-hall. On this account we fhould be very jealous of any new practices which prevail in our courts: we ought frequently to infpect the conduct of our judges, as our ancestors wifely did, who frequently cenfured and punished the mifconduct of judges. Initances of this must crowd upon the memory of every man converfant in our hiftory. In the reign of Alfred the Great, forty of them were hanged. I do not mention the precedent indeed as an example for your imitation. All I mean is to fhew you that there is in judges no peculiar fanctity to fecure them from the frailties of other men. Their conduct therefore ought to be narrowly watched. The more important their ftation, the more alive our attention fhould be. The peculiarity of the predicament in which I ftand, will not allow me to step forth as an accufer on this occaСсс 2

fion.

fion. Nor is it fo much my intention to impeach any particular perfons, as roufe you to an enquiry, that you ay act according to the proofs which fhall appear.

If the enquiry fhould turn out in favour of the judges, my mortification at being miltaken will e fully balanced by the joy which I thall feel at feeing the nation groundlefly alarmed. But, alas! I fear that will not be the cafe. Nay, I will be bold to fay, that it cannot poffibly be the cafe. The malverfations with which they are charged are of too black a dye, and of too great authenticity, to fhare fuch a fate. They are accufed of allowing the jury only the cognifance of the fact, and of referving to themfelves the right of judging of the intention. The intention is confidered as a matter of law, which is beyond the fphere of a jury. In the cafe of a libel, for example, the jury is only permitted to determine whether it was publifhed by the culprit, and whether it is applicable to the perfon itated in the indictment, or information. Whether he defiguel to do an injury, is declared totally immaterial to them. They must bring him in guilty. The malice or innocence must be left as a matter of future confideration to the judge, who must give each its due weight, as an aggravation, or extenuation, according the nature of the cafe. Now, fir, whence is this fpecies of law derived? I am fure not from natural justice; for natural juftice informs me, that the effence of guilt confifts in the intention, and that he who kills his father undefignedly, is as innocent as a young tree that overtops its parent, and at last detroys it, by confuming all the juice and nourishment afforded by the furrounding earth. Nor does the pofitive, feem to differ from the natural law. At least the code of English jurifprudence is the fame; for robbery and murder, without intention, lofe their name, and affume that of trefpafs and manslaughter. If a father fend to his fon a letter couched in the most acrimonious expreffions, yet there is a precedent for acquitting him of a libel, if it appears that the object at which he aimed was the reforma tion of his fon; or, in other words, if it be clear that he did not write

it with a malicious intention. But it may be alledged, that though reafon and the general principles of juftice are on our fide, precedents declare against us. I will take upon me to fay, that there are none of good authority, or indeed of any authority at all, that militate against me. The general tenor of our decifions allows juries the right of judging on the intention. Were not this the fact, upon what grounds could the feven bishops have been acquitted? they acknowledged the publication, they acknowledged the application alledged in the information. What then could be left to the cognifance of the jury? nothing but the intention with which they publifhed and applied. That intention the jury found to be good, and therefore they acquitted the bishops to the great joy of all good men, and to the advantage of the whole nation. Nor does it appear, that the judges ever inftructed juries to confine their inquiry folely to the fact of publica tion and the truth of the inuendoes. Juries, therefore, would have been ufelefs, if they had nothing to examine but what was confeffed. I allow indeed that there was one judge, who feemed to give a colour to this doctrine; but then his violent and unconftitutional proceedings deprive him of all authority. Because a juryman would not agree to a verdict, which his eleven affeffors were willing to find, he threw him into a prifon. The rest of his conduct was of a piece. What inference then can be drawn from his behaviour? I would as foon feek for a precedent in the Star-chamber as in his practice. Judge Powel too, and his coadjutors, are fuppofed to have countenanced this innovation. But that fuppofition will, upon examination, be found to be groundless. But let the practice have every precedent which defpotifm can with, no precedent can change the invariable property of things; what is bad inuft be bad, though fupported by a thoufand authorities; and what is right fhould be done, however it may carry the appearance of novelty or innovation. But the grievance here pointed out, Mr. President, is not the only fource of complaint. A mafter is adjudged to be refponfible, in criminal cafes for the misdemean

ors

ors of his fervant. A bookfeiler is pronounced to be by law guilty, though he was in the country when the copies of the libel, for which he was profecuted, were brought to his hop; though they were fold without his knowledge; though his name had been printed on the title-page without his privity or confent; though upon his return, he fent back the remaining copies, and complained of the liberty which had been taken with his name. Now, though I confels that in a civil action, the fufferer ought to recover damages, even from the involuntary author of any injury, yet I think it contrary to all ideas of juftice, that fuch an unlucky or foolish trefpaffer fhould be profecuted as a bad man, and a public delinquent.

This is blending civil and criminal actions, and introducing irremediable confufion into the law. If fuch conduct be unconftitutional and unjuft, how can the culprit be found guilty? The cafe exceeds my comprehenfion. The nation is justly alarmed with it; nor will their alarm be removed but by a thorough and an honest enquiry. This you will be the more difpofed to believe, when I affure you that I will prove all my allegations by refpectable witneffes, who are willing, when called upon, to appear at your bar. In confidence of their support, and of your approbation, I move, that a committee be appointed to enquire into the administration of criminal juftice, and the proceedings of the judges in Westminster-hall, particularly in cafes relating to the liberty of the prefs, and the conftitutional power and duty of juries.

Curius Camillus ending here, was thus feconded by Labienus Luper (Mr. Alderman O. r) in the following speech:

Mr. Prefident, Sir,

AS the reprefentative of a great city, in which the charges made by my honourable friend, have been and are ftill the topicks of general converfation, I must say, an univerfal opinion prevails that our courts of justice are not always regulated in their decifions either by the principles of law or the fpirit of the conftitution. My conftituents think that they have feen and felt the baneful effects of court influence and tory doctrines. In their appre

henfion maxims of jurifprudence, which fap the foundation of our free govern ment, have been countenanced and propagated by thofe very men, who ought to preferve the purity of our laws, and to check every innovation upon the rights of the people. But how, you will afk, do I know this to be the general belief of the citizens? Not only by converfation, which I think would be a fufficient authority, but by their public acts. A great part of their laft remonftrance, is a brief narrative of the injuries fuftained from the judges? They there complain of the encroachments made by them upon the jurifdiction of juries? They there complain that juries are not allowed to go into the general iffue, but are confined to the fimple fact and appli cation? What more can you defire to authenticate my affertion? What mone can you defire to prove, that the fame opinion prevails over the whole realm ? London is not only the centre of trade and commerce, but of news and politics. Its opinion of ftate affairs foon circulates round the island, and be comes that of the country. And, let me tell you, it is not without reafon, that the reft of the empire is fo ready to adopt its fentiments. The citizens are at the very fource of intelligence, and nothing of confequence can escape their knowledge. The generality of them are free and independent, because they neither have, nor expect, places or penfions, or contracts, or lucrative jobs. Hence they are not misled by mifreprefentation nor warped by intereft. No wonder, then, if their correfpondents, who are as numerous as they are widely extended, give ready and entire credit to their reports; efpecially fince men are naturally dif pofed to believe thofe, whofe veracity they have experienced on other occafions. Their strict adherence to truth, in mercantile affairs, gives in political tranfactions, a currency to their opinion, which cannot be expected to accompany that of the courtiers, except within the verge of the court. May I then take it for granted, that the bad opinion conceived of our courts of justice is, if not quite univerfal, pretty general over the kingdom? I think this conclufion is naturally deducible from what I have now advan ced. If I am right in this particular,

is it not evident that the committee of enquiry propofed by the learned ferjeant is indifpenfibly neceffary? I am convinced that no other scheme will remove the prefent doubts and jealouhes of the people. The grievances in question are of too great magnitude, and have too juft a foundation to yield to any weaker power. For my own part, I am fo fully convinced of this truth, and of the mal-administration of juftice, that I am willing to arraign not only measures, but men. My conftituents were once on the point of taking this step. I fhould, therefore, but ill perform the duty, which I owe them, if I did not adopt their fentiments. For this reafon, it is my defire, that the committee fhould have for a particular object of its enquiry, the conduct of the chief delinquent, whom I believe to be L-d C-f J-e M-sf-d. The enquiry propofed may do much good and cannot poffibly produce the leaft harm-If the judges are corrupt, they ought to be punished in an exemplary manner; if they are otherwife, the proof of their innocence will re-establish them effectually in the good opinion of the people.

Labienus Luper was immediately followed by Portius Porcus (Sir J. M.) who delivered himself to the following effect:

Mr. Prefident, Sir,

COMING from a county in which the conduct of a judge has made great noife, and given occafion to much uneasiness, I think it incumbent upon me to take up the affair in this affembly, which is the grand inqueft of the nation, and ought therefore to examine even into imputed grievances. The affair which I mean, is the trial of the Scotch ferjeant, at Guildford, for the murder of Smith, an innkeeper. The judge in that cafe acted, it would feem, in a manner ftill more dangerous and unconftitutional, than the King's-bench in their doctrine concerning libels. After the jury had found the ferjeant guilty of murder, the merciful judge affirmed that they miftook the nature of the cafe, and infifted upon their being guilty of a mifnomer in chriftening with the name of murder an act, which only amounted to man-flaughter. In fhort,

he obliged them to go back, and to find the culprit guilty only of manflaughter. Such is the voice of common fame; fuch is the voice of all our publications, of our news-papers, magazines, and pamphlets. if it fpeaks truth, ought not the delin. quent to be punished? At any rate we should enquire into the tranfac tion. For the people are not without fufpicions that a partiality for the military, a predilection for thofe gentlemen who difcovered fuch alacrity in executing the commands of the miniftry, on the memorable day, that faw fo many of his majefty's innocent fubjects perish in St. George's fields, contributed to produce this righteous judgment. Without fuppofing the interpofition of the miniftry, they cannot fee how a judge could be induced to controul the judgment of a jury in a plain matter of fact, of which they were as well qualified to judge, as the ableft fplitter of caufes in Weftminter-hall. They begin to fear, that if judges are allowed to affume fuch dictatorial authority, juries will become, inftead of bulwarks of the conftitution, mere engines to cloak the oppreffion of magistrates. thefe reafons, I wish that the committee may be directed to enquire, not only into the conduct of Lord M-d, but likewife into that of Sir Sy S- -d S-th.

For

After Portius Porcus had delivered his fentiments, Hoftilius Numa (Mr. Alderman Se) rofe up to fpeak, but being taken fuddenly ill, he was obliged to difcontinue his fpeech in favour of the motion, upon which Metellus Mummius (Mr. C—s J-n, fpoke against it, to this purport:

Mr. Prefident, Sir,

SINCE I first had the honour of fitting in this affembly, I never faw the houfe difgraced with fo irregular, fo unprecedented, and abfurd a mo tion as this, which now lies before you. Never do I recollect an occafion, on which I either was, or had reason to be shocked with fuch an unparlia mentary, fuch an uncandid, fuch an unfair proceeding : I am not therefore furprized at the befitation, embarraffment, and confufion of fame mentbers. Though the movers of the

question