inland, the detaining of the garrifon, was an exprefs violation of treaty, by which, in the cafe even of an open rupture, fix months are allowed to the fubjects of each nation, to remove their perfons and properties from the dominion of the other. And that from a due confideration of all thefe premifes, it was evident, that we were only made the dupes to a pretended negociation.

It was faid in reply, that if all thefe charges could be admitted, it would be fuppofing the moft heterogeneous and unnatural combination that ever exifted, in which the three great parts that compofe our government, with a great majority of the monied and landed interefts, were to join with the miniftry to betray the nation, to facrifice their own moft effential interefts, and to entail ruin and deftruction upon their pofterity. That his Majefty had wifely entrufted the whole conduct of this bufinefs, to the care of gentlemen in whom he placed the greatest confidence, and who would fhew that they were not unworthy of it, by the ftrictefl attention, as well to his honour, as to the interefts of the nation.

The fufpicion of duplicity in the court of Spain, was faid to be groundlefs; that the Spaniards were like ourselves; they were haughty, brave, and generous; they were willing to be just, but they would not be bullied, or compelled into juftice; they would not have that demanded as the conceffion of their fears, which fhould be required as the refult of their probity; they would fuffer diftrefs fooner than difhonour; and if we talk of forcing them into our meafures, they will make that force in

difpenfibly requifite; that therefore great allowances were to be made for the nice delicacy of honour, and extreme fenfibility of fuch a people; and it was better and more prudent, to treat even their prejudices with tenderness, than by the rash and untimely application of a rough hand, to irritate and provoke them.

That it is abfurd to fuppofe, that we are only amufed by a treaty, while the enemy is meditating fome fignal and dangerous blow. If the barren rock of Falkland's ifland, has abundantly furnished matter of ferious reflection to both nations, and Spain is already fully convinc ed, that we are not to be deprived of fo infignificant an object without ample fatisfaction, and is fenfible

at the fame time of the formidable armaments we are making, for the purpofe of exacting any juftice by force, which is refufed us by treaty; can it be fuppofed in fuch circumftances, that the will, by giving new causes of complaint, urge us to an immediate commencement of hoftilities, at a time when he will know that we are fully prepared to take the most fignal vengeance. Spain will therefore have a regard to herself, however the may wish to diftrefs us; and will be cautious from prudence, if the is not even honeft from inclination.

Such were fome of the arguments made ufe of in the long de-. bates that arofe upon this motion in both houfes; it was however rejected by a majority, of more than three to one, of the Lords; in the houfe of commons it was better fupported as to numbers, and the minority thought it no fmall inftance of their strength, to count 101, in their divifion, upon a

question

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

A new motion on the Nov. 28. feemingly hopeless fubject of the Middlefex 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 reftrictions and limitations of law, an inherent right of the subject, and cognizable by law, and is accordingly a matter wherein the jurifdiction of the house 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 interefting fubject.

The nobleman we have mentioned, in the courfe of his introductory speech 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 fevere reflections, was then present, 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 spirit 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 alfo 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 nothing novel, they had ever been the fame, nor had they been once called in queftion 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 respecting 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 should 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 arrest 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 question 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 conftitution, 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 ftrongest terms, that a day fhould be appointed for an enquiry into the conduct of the judges, and that the directions in queftion, fhould be fully ftated, 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 interested, 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 concerned for the prefent difreputable ftate of our law courts, and fincerely to wifh that fome effectual method might be taken to recover their former luftre and dignity; and that he knew of no method fo effectual as the propofed enquiry; if the fpirit of the times has fixed any unmerited ftigma upon the characters of the Judges, this will purify them, and restore them to the esteem and confidence of their country; but if the popular rumours have unhappily 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 guantlet 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 moft 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 adjourn ment was propofed and carried.

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

in a bill, to explain, amend, and render more effectual an act of the 4th and 5th of Willam 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 eftablished forms obferved by the courts in all other cafes. Some late instances of the exercife 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 removable at pleafure, and in the way of great emolument and promotion, fo dangerous a power fhould not be lodged in his hands, which must at best, in fuch circumstances, be odious and fufpicious, and is in reality to himself 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 exiflence depends totally upon the breath of a minifter, mult act immediately under his orders.

That, in these circumftançes, the attorney-general can, by his own mere motion, or in obedience to the arbitrary mandate of a minifter, give any name and import to any paper he pleafes; call it an infamous, a feditious, or a treafonable 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 leaft previous enquiry. If the culprit

fhould, in the courfe of the trial, be able to justify his conduct; or if the attorney, defpairing of fuccefs, fhould enter a noli profequi; 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 procefs, however unjustly, or without even the fhadow of a crime, to be oppreffed or ruined at will; and the attorney-general is, in the firit inftance, abfolute mafter 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 answer the end for which it is intended, which is the fpeedy punishment of libellers; on the contrary, experience thews, that, before the attorney-general can get half through the neceffary process by information, he might have got

the

the offender tried, convicted, and condemned, before the common juries. That a general cry was gone out through the land againft this mode of profecution, which fhould in itself be a fufficient caufe for the propofed reftraint; and that nothing could be more equitable or reafonable, or that would at the fame time give greater fatisfaction, than that, when the proceedings were commenced ex off ero, the defendant fhould, as in other cafes, be allowed to fhew caufe why an information fhould not be granted.

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 inftrument in the hands of others; and that he had received the information which was filed in his name, literally as it food, 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

is as ancient as the monarchy, 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 muft militate against all power, of what nature foever; as all power, was liable to abufe.The danger of making innovations in ancient eftablishments, 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 controul, 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, justice; and that in cafes of official information he reprefents the grand jury, and undertakes the profecu tion at his peril.That profecutions were now in hand, which were undertaken at the request of the Houfe; and it was a strange. 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 expenfive and mifchievous to the parties under pro

fecution,