CHAP. supporter of the Government, although he very properly abstained from again making himself prominent as a political partisan. XLIV. A.D. 1789. 23rd Jan. His speech on the inGeorge III. sanity of In a debate which soon after arose upon the insanity of George III., Lord Porchester, to enforce the necessity of immediately restoring the exercise of the royal authority by addressing the Prince of Wales to act as Regent, stated "That on Monday last two men had been butchered by a public execution, because the door of mercy was barred against them, and that these unfortunate convicts had been deprived of all opportunity of applying either for a pardon or for a temporary reprieve, although it had been laid down by Judge Blackstone that if a convict, after bereceiving sentence of death, loses his senses, execution is stayed, cause, if he had retained his senses, he might have urged some plea to induce the Crown to remit or to mitigate his punishment." Lord Kenyon." It would ill become me to listen with silent indifference to a charge of so serious a nature, and urged with such vehemence against a judge. The judge who tried these criminals is now the party accused. If on the trial of a person convicted of a capital crime, circumstances come out which warrant the judge in supposing that the verdict is wrong, it is his duty to respite the convict. If anything favourable appeared on the trial of the two persons executed on Monday, the judge who tried them ought to have respited them; and if he neglected his duty, they have not been butchered but murdered by him, which is a much higher offence. The judge guilty of such an act of criminal neglect, instead of being allowed to go in state to Westminster Hall next morning, ought to have been seized in his fur robes, dragged from the seat of justice, and hurried to that dungeon in which the two unfortunate men had lingered the last hours of their existence. I therefore call upon the ing the Difficulty of the said Affairs and Dangers impending, all Excuses being laid aside, you be personally present at Our aforesaid Parliament with Us, and with the Prelates, Nobles, and Peers of Our said Kingdom, to treat of the aforesaid Affairs, and to give your Advice, and this you may in nowise omit as you tender Us and Our Honour, and the Safety and Defence of the said Kingdom and Church, and the Despatch of the said Affairs. "Witness Ourself at Westminster, the Ninth Day of June, in the Twentyeighth Year of Our Reign. "YORKE.' "Then his Lordship took the Oaths, and made and subscribed the Declaration; and also took and subscribed the Oath of Abjuration, pursuant to the Statutes, and was afterwards placed on the Lower End of the Barons' Bench. Garter King at Arms delivered in at the Table his Lordship's pedigree, pursuant to the Standing Order."-38 Journal, 249. noble lord to make good his charge, to name the judge, and to bring СНАР. the real culprit to condign punishment." Lord Porchester." I bring no imputation on any judge. The judge who tried these two unfortunate prisoners is my own near relation, and a most honourable, enlightened, and humane magistrate. But because the evidence against them on their trial might appear quite sufficient, does it follow that they might not have good reason to apply for pardon or reprieve, and ought they to have been hurried out of the world, while, contrary to our laws and our constitution, the power of extending mercy to them was suspended?" Lord Kenyon returned no answer; but I apprehend he might have said, that in truth the ministers of the Crown continued to exercise the powers of their several offices; that a pardon or respite if fit to be granted would have been directed by the Secretary of State as effectually as if the King had been in the full possession of his faculties.* XLIV. Mr. Hast by the disParliament. 16th May, solution of 1791. By this maiden speech our Chief Justice did not make a He mainfavourable impression, and he was so little satisfied with it him- tains that self, that he never again opened his mouth in the House of ings's imLords till the question arose whether the impeachment of Mr. had abated peachment Hastings was abated by the dissolution of Parliament. Although so familiarly acquainted with every branch of our municipal law, he knew very little of the law of Parliament, and it would have been better if on this occasion he had remained silent. He apologised for his defective information on the subject, as his professional engagements had prevented him from reading the Report of the Committee appointed to search for precedents. He then strongly took the side of abatement. "If dry legal reasoning," said he, " and a strict attention to forms of practice (on which substantial justice depends) be unpleasant to your Lordships, you had better not call on lawyers for their opinions, but either send them out of the House, or not allow them to babble here." In commenting on the opinion of Lord Hale, he fell into the mistake of asserting, "as an undoubted fact, that this great judge would never sit on a criminal case during the Commonwealth, because he doubted the authority of Cromwell," whereas Hale undoubtedly took the oath to the Republican Government, and, till he had a difference with the Protector, tried * 27 Parl. Hist. 1065. CHAP. criminal as well as XLIV. 3rd July, 1789. April, 1792. Mr. Fox's civil cases without any scruple.* Good sense prevailed, and the quibble of abatement was crushed by a majority of 60 to 18.+ Lord Kenyon strongly opposed the Bill to prevent vexatious suits for small tithes, saying that "he could not consider it any oppression that persons should be imprisoned for sums as low as one shilling, for if any were so obstinate as to refuse the payment of legal dues, the law ought to be enforced. He, therefore, would not concur in pulling down a fabric which had stood so many years, and which was the chief support of the inferior clergy." + Our Chief Justice next came forward to oppose Mr. Fox's Libel Bill, which declared that juries had a right to determine Libel Bill. whether the writing charged to be libellous is of an innocent or criminal character. "He expressed his dislike of the loose and vague manner in which the Bill was worded. He pronounced its principle to be a direct contradiction to the practice of a long series of years, and that it was totally inadequate to the purpose it was meant to effect. It tended to alter the established law of the realm, and was a dangerous innovation upon the constitution. The only doubt was whether the truth should be taken as part of the defence, and if this Bill were to pass, a clause to determine that point would be absolutely necessary. He thought the Judges the only men who could give the necessary information, and he should move that the following questions be put to them: 1. On the trial of an indictment for libel, is the criminality or innocence of the paper set forth as the libel matter of fact or matter of law? 2. Is the truth or falsehood of the paper material, or to be left to the jury on a trial?' Questions proposed by him for the opinion of the Judges. The two questions were referred to the Judges, who unanimously answered that "it was for the Court alone, and not for the jury, to determine whether the paper charged to be a libel was criminal or innocent," and "that proof of the truth could not be admitted; nay, that the doctrine for excluding it was so firmly settled and so essentially necessary for the maintenance of the King's peace and the good order of society, that it cannot be drawn into debate." § * Lives of Chief Justices, vol. i. 527, 529. † 29 Parl. Hist. 535. § 29 Parl. Hist. 1361. XLIV. Stanhope's Kenyon. On the motion for the second reading of the Bill, Lord Cam- CHAP. den and Lord Loughborough still advised the House to pass it; but it would appear that Lord Kenyon would have remained Lord silent had not Lord Stanhope made some observations which he speech to supposed reflected upon him. This eccentric Peer not only found banter Lord fault with the direction given to the jury at the famous trial of the King v. Stockdale, but, to illustrate the injustice which might be done by referring the question of "libel or no libel" to the Judges instead of the jury, put the case of there being an indictment for an alleged libel, in denouncing the prosecution as “a great bore." "If referred to the jury," said his Lordship, "they would immediately say, 'This is no imputation on moral character. We who attend in courts of justice know well that a person may be a great bore who is very desirous of discharging his duty, and is only very narrowminded, dull, and tedious. Therefore we find a verdict of not guilty.' But if treated as a mere question of law, the Judges would say, 'We read nothing in our books of a bore so spelt. Lord Coke says, 'the spelling of words signifieth naught.' We must consider that the libel denounces the prosecutor as a great boar. Now Manwood de Foresta lays it down that 'a bour is a beast of chace of an evil and ungovernable nature, the which it is lawful to follow and to kill.' Now, whereas the libel avers that the prosecutor is a great boar,' we must take this in mitiori sensu, and suppose the charge to be, not that the prosecutor actually is a great boar, but only that he has the qualities of a great boar. But these render him unfit for society as much as if he were infected with certain disorders, to impute which is libellous and actionable. A 'great boar' is as much as to say a 'wild boar,' which may lawfully be slain by those whom it attacks, even in the purlieus of a royal forest. Therefore we hold the defendant to be guilty, and we sentence him to be hanged.” 6 answer. Lord Kenyon: "After the unprovoked attack that has been made Lord upon me, I must appear the meanest of mankind in your Lordships' Kenyon's estimation if I do not endeavour to defend myself. Every man cannot command the great abilities and the great eloquence which have been exhibited here this day; but there is one thing in every man's power, viz., veracity. The noble Earl, instead of seeking to obtain true information, chooses rather to attack me on false facts. In Stockdale's case, Mr. Erskine expressed himself quite satisfied with my direction, and I entirely approved of the verdict. The noble Earl has tried to cover with ridicule all that is held sacred. I honour trial by jury as much as any man; but let the jury be confined to CHAP. Charge that he made a pecuniary profit by the abuses in the King's Bench 27th March, 1797. their proper province, the trial of facts. I conjure your Lordships, therefore, to let the law remain as it is, with all its guards and fences about it. A man sitting on the bench suffers many an uneasy moment, and is obliged to consult his conscience to enable him to do his duty. Great are the advantages from the question of libel or no libel remaining exclusively with the Judges. If a man were indicted for publishing a paper which inculcated virtue and loyalty, instead of vice and sedition, I would not direct the jury to find a verdict against such a defendant. Cases have occurred where the jury have found the defendant guilty, and the Judges have stepped in and rescued him. As for the noble Earl to dabble in law, as he has attempted, - it is as preposterous as if I were to quote Sir Isaac Newton's PRINCIPIA, or to go into a dissertation on Euclid's Problems. The noble Earl's speech deserves no other notice, for instead of being proper for your Lordships to hear, it was rather calculated to inflame the lowest dregs of the people and to put them out of humour with the public administration of justice." † However, from the noble support given to the Bill by Mr. Pitt's government it passed, and it has operated most beneficially. Thanks to the liberality of a succeeding age another Bill has passed, admitting evidence of the truth of the charge; -and this too has greatly promoted "the King's peace and the good order of society," which the Judges said the mere mention of such a measure would fatally subvert.‡ For the five following years, perhaps the most interesting in our parliamentary annals, Lord Kenyon appears never to have opened his lips in the House of Peers, and I find him only once more addressing this assembly, although he very regularly voted or gave his proxy in favour of the Government. Lord Moira had brought in a Bill to abolish imprisonment for debt. Among other petitions in favour of the Bill, there was one detailing the abuses supposed to prevail in the King's Bench prison, and asserting that from the sale of beer and spirits to the debtors, large profits were derived by the Lord Chief Justice. The noble Lord who introduced the Bill declared that he believed that these charges were false and calumnious. Lord Kenyon, rising with evident agitation, spoke as follows: *Sic. He seems to have thought it great presumption for a lawyer to pretend to have crossed the Pons Asinorum. † 29 Parl. Hist. 1294, 1431. Lord Campbell's Libel Bill, 6 & 7 Victoria, c. 96. |