I intend to pay my respects to your lordship once every month "till the meeting of the Parliament, when our betters may consider of these matters, and therefore will not trouble you with any more on this subject at present. But conclude, most heartily praying----
That from depending upon the will of a judge, who may be corrupted or swayed by his own pa.s.sions, interests, or the impulse of such as support him and may advance him to greater honours, the G.o.d of mercy and of justice deliver this nation.
I am, my lord, Your lordship"s most obedient humble servant, N.N.
Dec. the First 1724.
Dublin: Printed in the Year 1724.
A SECOND LETTER FROM A FRIEND TO THE RIGHT HONOURABLE ------
My Lord,
I think the best service men employed by His Majesty can do for him and this country, is to shew such prudence and temper in their behaviours as may convince every man they are not intrusted with any power but what is necessary and will always be exercised for the advantage and security of His Majesty"s subjects.
For my own part I hold it the duty of every man though he has not the honour of serving His Majesty in public employment, not only, not to misrepresent the actions of his servants, but in matters of small concern, to wink at their follies and mistakes; I know the Jacobites and Papists our irreconcilable enemies are too watchful to lay hold of every occasion to misrepresent His Majesty and turn the faults of ambitious and self-interested servants upon the best of kings.
I hear some men say, that in my last to your lordship, there appears more of the satirist, than becomes a man engaged merely in the defence of liberty and justice; But I am satisfied I can with charity affirm, they are either such as have no knowledge of the several steps [that]
have been taken to bring this poor country into ruin and disgrace, or they are of the number of those who have had a share in the actings and contrivances against it; for my lord, he must rather be an insensible stoic than an angry cynic, who can survey the measures of some men without horror and indignation--To see men act as if they had never taken an oath of fidelity to their king, whose interest is inseparable from that of his people, but had sworn to support the ruinous projects of abandoned men (of whatever faction) must rouse the most lethargic, if honest, soul.
I who have always professed myself a Whig do confess it has mine.
I beg leave in this place to explain what I intended in my last by the words, "unless by leave or order of the court," lest whilst I plead for justice I should do an injury to your lordship.
I do declare I never heard that story of your lordship, and I hope no man did believe it of you. My intention was by that hint to remember you of Judge U--p--n and a certain a.s.sizes held at Wicklow, as I believe your lordship understood it, and as I now desire all the world may.
Having learned from your lordship and other lawyers of undoubted abilities, that no judge ought by threats or circ.u.mvention to make a grand-juryman discover the king"s counsel his fellows" or his own I should not at present say anything in support of that position. But that I find a most ridiculous and false explanation seem to mislead some men in that point: Say they, by the word counsel is understood, such bills as are before the grand jury and the evidence the prosecutors for the crown have to support the charge against the subject--Lest that being known the party indictable may fly from justice, or he may procure false witnesses to discredit the evidence for the king, or he may by bribes and other indirect measures take off the witnesses for the crown.
I confess _I_ take that to be the meaning of the word counsel, but I am certain that is not _all_ that is meant by it, that is what must be understood when it is called the king"s counsel, _id est_, the counsel or reasons for which the king by his servants, his attorney-general or coroner, has drawn and sent to the grand jury a charge against a subject.
But the counsel of a juror is a different thing, it is the evidence, the motives and reasons that induce him or his fellow-jurors to say _billa vera_ or _ignoramus_, and the opinion he or they happen to be of when the question is put by the foreman for finding or not finding: This counsel every man is sworn to keep secret, that so their opinion and advice may not be of prejudice to them hereafter, That as they are sworn to act without favour or affection, so may they also act without FEAR. Whereas, were it otherwise the spirit of revenge is so universal, there are but few cases wherein a juror could act with safety to himself; either the prosecuted, as where the bill is found, or the prosecutor, where it is returned _ignoramus_, may contrive to defame the jurors who differ from them in opinion: As I am told has happened to some very honest citizens who are represented to be Jacobites since their opinions were know to be against ----. And sometimes revenge or ambition may prompt men to carry it further, as in the case of Mr. Wilmer, who in King Charles 2d"s time was very severely handled for being one of an _ignoramus_ jury.---- "Tis not necessary to say whom he disobliged by being so.----But if I remember right his case was this.
He was a merchant, (and as I said, an _ignoramus_ juryman) had covenanted with a servant boy to serve him in the West Indies, and accordingly sent him beyond sea: Upon suggestion and affidavit by which any person might have it, a writ _de homine replegiando_ was granted against Mr. Wilmer; the sheriffs would have returned on the writ the agreement and the boy"s consent, but the court (in the case of this Wilmer) Easter 34, Cha. 2. [_i.e.,_ Charles the Second] in B.R. ruled they must return _replegiari fecimus_ or _elongavit_, that is, they had replevy"d the boy, or that Wilmer had carried him away where they could not find him, in which last case Mr. Wilmer, though an innocent person must have gone to gaol until he brought the boy into court or he must have been outlawed--Shower"s Rep. 2 Part.
I do not say this that I think the same thing will be practised again, or anything like it, though I know that very homely proverb, "More ways of killing a dog than hanging him."--But I instance it to shew, the counsels of every grand juryman should be kept secret, that he may act freely and without apprehensions of resentment from the prosecuted or prosecutor.
My resolution when I writ to you last, was, not to have said anything in this concerning the power of dissolving or dispensing, but as I have been forced to say something of the dispensing, for the same reason I must of the dissolving power.--A power undoubtedly in effect including that of returning, which makes me wish two men of great interest in this kingdom, differing in every other thing, had not undertaken to defend it, or they had better reasons for it than I have yet heard.
"Tis said, "This power is in the court as a right of resistance is in the people, as the people have a power superior to the prerogative of the prince, though no written or express law for it; so of necessity though no statute directs it, and it may seem to overturn the greatest security men have for their liberties, yet the court has a power of dissolving grand juries, if they refuse to find or present as the court shall direct."
Pray let us consider how well this concludes.
The people may do anything in defence of their lives, their religion and liberties, and consequently resistance is lawful, therefore an inferior court a _bene placito_ judge may----Monstrous absurdity.
Another, I am sorry I can"t say more modest argument to support it is this.--
"Considering," say they, "grand juries, it is but reasonable a discretionary power of dissolving them should be lodged in the judges."
By the words "considering grand juries," I must understand considering their understandings, their fortunes or their integrity, for from a want of one or more of those qualifications must arise the reason of such a discretionary power in the judges.
Though I shall not urge it as far as I could, I will venture to say the argument is at least as strong the other way--considering the judges.--
First as to their understandings, it must be confessed the benches are infinitely superior to the lower professors of the law: Yet surely it can"t give offence to say the gentlemen of the several counties have understandings sufficient to discharge the duty of grand jurymen--If want of fortune be an objection to grand jurymen, _a pari ratione_, it is an objection to some other men.--Besides, that the fact is not true, for in their circuits, no judge goes into any county where he does not meet at least a dozen gentlemen returned upon every grand jury, every one of whom have better estates than he himself has--And these not during pleasure, which last consideration, saves me the trouble of shewing the weakness of the objection in the third qualification.
"Ay. But it was a necessary expedient to keep out Wood"s bra.s.s."
Are the properties of the commons of this kingdom better secured by the knight-errantry of that day? In the name of common sense, what are we to believe? Has the undaunted spirit, the tremendous voice of ------ frightened Wood and his accomplices from any further attempts? Or rather has not the ready compliance of ------ encouraged them to further trials? The officers and attendants of his court may tremble when he frowns, but who else regards it more than they do one of Wood"s farthings.
"There is no comparison," says another, "between the affair of Sir W.
Scroggs and this of ------. Sir W. discharged a grand jury because they were about to present the Duke of York for being a Papist, but ------ discharged the grand jury for not presenting a paper he recommended to them to present as scandalous, (and in which, I say, he was a party reflected on.)"
I agree there is a mighty difference, but whom does it make for?
A grand jury of a hundred (part of a county) take upon them to present a no less considerable person than the king"s brother and heir presumptive of the crown, the chief-justice thinks this a matter of too much moment for men of such sort to meddle in, but a matter more proper for the consideration of Parliament: I would not be understood to condemn the jury; I think they acted as became honest Englishmen and lovers of their country; But I say if judges could in any case be allowed to proceed by rules of policy, surely here was a sufficient excuse. However the commons impeached him.
The determinations of ignorant or wicked judges as they are precedents of little weight, so they are but of little danger, and therefore it will become the commons at all times to animadvert most carefully upon the actions of the most knowing men in that profession.
I say, my lord, _at all times_, because I hear former merit is pleaded to screen this action from any inquiry.
I am sensible much is due to the man who has always preferred the public interest to his private advantages as -------- has done. When a man has signalized himself, when he has suffered for that principle, he deserves universal respect. Yet men should act agreeably to the motive of that respect, and not ruin the liberty of their country to shew their grat.i.tude, and so, my lord, where a man has the least pretence to that character, I think "tis best to pa.s.s over small offences, but never such as will entail danger and dishonour upon us and our posterity.
The Romans, my lord, when a question was in the senate, whether they should ransom fifteen thousand citizens who had merited much by their former victories, but losing one battle were taken prisoners; were determined by the advice of that n.o.ble Roman Attilius Regulus not to redeem them as men unworthy their further care, though probably it was their misfortunes not their faults lost that day.
Flagitio additis d.a.m.num: neque amissos colores Luna refert medicata fuco
He thought they were not worthy to be trusted again:----
To shew them pity, in his mind, would betray the Romans to perpetual danger: _Et exemplo trahenti_
Perniciem veniens in aevum, Si non periret immiserabilis Captiva p.u.b.es
I hear some precedents have been lately found out to justify that memorable action; but if precedents must control reason and justice, if a man may swear he will keep his counsels secret, and yet by precedents may be forced to divulge them, I would advise gentlemen very seriously to consider, the danger we are in; and examine what precedents there are on each side of the question, for my part I think the commons of England are not a worse precedent than the judges of England.
Besides it must be remembered that precedents in some cases will not excuse a judge, even where they are according to the undoubted law of the land, as for instance,
Suppose a man says what is true, not knowing it to be true, though it be logically a truth as it is distinguished, yet it is morally false; and so, suppose a judge give judgment according to law, not knowing it to be so, as if he did not know the reason of it at that time, but bethought himself of a reason or precedent for it afterwards, though the judgment be legal and according to precedent, yet the p.r.o.nouncing of it is unjust; and the judge shall be condemned in the opinions of all men: As happened to the Lord Chief Justice Popham a person of great learning and parts, who upon the trial of Sir Walter Raleigh; when Sir Walter objected to reading or giving in evidence, Lord Cobham"s affidavit, taken in his absence, without producing the lord face to face, the lord being then forthcoming: The chief justice overruled the objection, and was of opinion it should be given in evidence against Sir Walter, and summing up the evidence to the jury the chief justice said, "Just then it came into his mind why the accuser should not come face to face to the prisoner, because, &c." Now if any judge has since found precedents, or has since picked up the opinion of lawyers, I fear he will come within the case I have put.
I foresee, if ever this question happens to be debated, _you know where_, gentlemen will be divided; Some will be desirous to do their country justice and free us from all future danger of this kind; Others upon motives not quite so laudable, will strive to screen, and with others private friendship will prevail: But I would recommend to your friends, who really love their country, to consider the several circ.u.mstances concurring in your lordship which probably may not in your successor: Let them suppose a person were to fill your place, from whose manifest ignorance in the law, we may reasonably conclude, his only merit is an inveteracy and hatred to this country. I say how could your best friends excuse themselves, if in regard to your lordship they should suffer such a precedent to be handed down to such a man un.o.bserved or uncensured?
_Invenit etiam aemulos infaelix nequitia_--Ambitious men have not always been deterred by the unhappy fate of their predecessors, _Quid si floreat vigeatque?_ But what lengths will they run if injustice and corruption shall ride triumphant?
Had somebody received a reprimand upon his knees in a proper place, for treating a printer"s jury like men convict of perjury, forcing them to find a special verdict, I dare to say he had not been quite so hardy as to have discharged the grand jury or treated them in the manner he did, because they had not an implicit faith in the court; nor had he dared not to receive a presentment made by the second grand jury against Wood"s farthings upon pretence it was informal, which I mention because the worthy Drapier has mistaken the fact.
Some of your lordship"s screens I hear advise you to shew great humility and contrition for what"s past, as the only means to appease the just indignation all sorts of men have conceived against you.----Were I well secured you will not recommend this letter to the next grand jury to be presented, I could give you more _seasonable advice_, but happen as it may I will venture to give you a little.
Fawning and cajoling will have but little effect on those who have had the honour of your acquaintance these ten years past, for Caligula who used to hide his head if he heard the thunder, would p.i.s.s upon the statues of the G.o.ds when he thought the danger over--A better expedient is this,----