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might be with respect to the imagining the death of the king, the crime would be complete.
He would ask the honourable and learned gentleman one question. Suppose A. and B. had conspired to levy war against the king, and with hostile arms proceeded to depose the king, and that the jury on the trial should find the conspiracy and the appearing in hostile arms, but should find that there was no intention of putting the king to death, would the honourable and learned gentleman then say, that judgment should follow against the defendants for high treason as a consequence of law from that verdict? If the honourable and learned gentleman would boldly say this, then he would allow that his construction of the law of treason was a bad, and the learned gentleman's a good construction. Indeed, he believed the learned gentleman would not maintain that doctrine; and he believed too, that the very essence of the crime of high treason, was that of compassing and imagining the death of the king; and that if the jury did not find the compassing and imagining the death, the verdict would be null and void. Such, he maintained, was the law at present; but if the bill passed, that would not be the law; then the law would be, that the bare finding of such verdict as he had stated, would be sufficient to convict any person of high treason; and he would maintain, that it was extremely material to attend to that distinction. The subject ought to be protected in his rights upon all occasions; the House should, therefore, be extremely cautious in agreeing to any thing that encroached upon them; but, above all, in cases of high treason; they should not forget that, as the crime of high treason was a crime to which the highest penalty was attached, it was also a crime in which the power of the magistrate ought to be looked at with the highest degree of jealousy. In all other charges made by the crown against its subjects, the chief magistrate had no distinct interest in the conviction ; but in the charge of high treason, he was to be swayed by considerations of a personal nature, and thence had sprung all the regulations of giving to the accused a list of the jurors and the witnesses, and all the various other checks which the wisdom of our ancestors had provided. These were not jealousies of his own, stated for the purpose of supporting the debate, they were jealousies of the law of the land, jealousies which had been shewn in a variety of instances, constitutional jealousies, that ought to be considered attentively by that House. They ought still further to be oareful how they proceeded in a measure that abridged the functions of a jury; independent of other considerations, the bill would make a formidable invasion of the law: the
jury would not hereafter have to consider the mind of the person accused; they would have nothing to try but the fact stated in the indictment; the rest would be mere inference of law; and although the jury should negative the intention of putting the king to death, yet judgment must pass upon the defendant.
Mr. Fox slightly adverted to the history of the two acts, the statute of Edward III. and that of Charles II. which were referred to by gentlemen of the other side as the precedents that made the foundation of the present measure. The statute of Edward III. was the old constitutional law of treason. Its introduction had freed the jurisprudence of the country from much uncertainty; and it had, in no instance, been deviated from in later times without producing considerable mischief. The other act was brought in at the period of the Restoration, when the people were wearied of the evils they had suffered under the former usurpation, and were willing to throw all their liberties into the hands of the crown. Let the House look at the statutes, and recollect the prevailing spirit of that day. They would find that parliament, which the present was about to imitate, giving to the king a power to raise a military of his own, and money to pay them, which was to be applied afterwards without the consent of parliament. They gave to the king the power which they ought to have kept in their own hands; a scandalous negligence, and for which the people suffered most deplorably! That reign was a dreadful one to the people; infamous and detestable as that reign had been, if there was any one part of it that called for the execration of the historian more than the rest, it was the public prosecutions that had been instituted in the course of it. Englishmen had, indeed, the happiness to feel that justice had been administered in this country for a century past, in a manner more mild, more pure, and more independent, than perhaps in any other country upon earth for the same period; they ought nevertheless to take care not to copy the sort of laws that were enacted in those abominable times of blind submission. They were about to adopt laws similar to those passed in one period of our history. And what period ? the period of the reign of Charles II., that period which of all our history was most abominable and scandalous in the administration of its justice; the most scandalous, perhaps, in the world, under all the circumstances of it.
With regard to that reign, one of its most remarkable features was, that the names of those who perished on the scaffold for high treason, were among those that were most dear to the recollection of Englishmen. He knew that
Sydney and Russell were not, indeed, tried by the statute which he had alluded to, the time being expired within which that law allowed them to be accused, but those eminent men perished on the scaffold for high treason. He said this to shew the general spirit of jurisprudence that governed this country at that period, and disgraced that reign. Those, therefore, who admired that reign, were not to look to its ministers or its judges, but to those who expired on the scaffold for high treason. The law which then was enforced, was such as the law under consideration was proposed to be; it expired, however, with the prince for whom it was brought forward. Richard II. was also a prince for whom such a law was enacted, and soon after he was deposed and assassinated. Charles II. had a long, and, as some said, a flourishing reign: but it was not flourishing in the mind of any man who really knew what a flourishing reign was. Was there any one who looked to the history of those times, to the unprincipled policy of the court, and the open profligacy of public measures, who did not consider it as a blemish on the English character, and a reproach to the spirit of our ancestors, that the reign of that monarch was suffered to be protracted till the period of his natural life? Were those auspicious times, from which to derive a precedent for their present conduct?
Two reasons had been adduced in favour of the present bill. The first he should dispose of very shortly. It was said to be a declaration of the meaning of the statute of Edward III. A declaratory act it could not be, because a declaratory act must be plain and simple; and, indeed, that part of the case had not been seriously insisted upon by the honourable and learned gentleman. The other reason was, the general prevalence of libels; and in proof of this, much had been said about the disposition of some people to treat all authority with contempt. It was true that a stone had been thrown at his majesty; but whoever attended to speeches upon that subject, would find how small a part of the people were concerned in that outrage, or tinctured with the disposition he had just maintained. The act, every body knew, was an odious and a detestable one; but ought the whole people of England to be deprived of their rights on account of that act ?
The honourable and learned gentleman, Mr. Fox observed, had adverted to what passed at the Old Bailey last year.
If the temper of some of the people had been seen to be so đangerous at that time, it was extraordinary that the measures then proposed had not been proposed sooner.
The truth was, ministers had not an opportunity to suit their views till just at present. They took the advantage of the
generous indignation of the people at the atrocious outrage offered to his majesty, and, under pretence of providing against a similar outrage, were going to deprive the pcople of their rights. They turned the best passions of the people of England into a delusion, in order to deprive them of their dearests interests. He was justified in saying this; else why had not the bill been brought forward sooner? He could say much more upon this topic, but that he deemed it unnecessary, after the very able and eloquent manner in which it had been treated by his honourable and learned friend,
(Mr. Erskine). With respect to the state trials, the learned - gentleman contended that they had proved much, and that
notwithstanding the persons indicted had been acquitted, the trials were calculated to produce a considerable effect on the public mind. So they certainly had, but not the sort of effect the learned gentleman would insinuate. In that acquittal he, for one, had already declared, that he much exulted, and he should ever continue to exult. That acquittal, in his view of the subject, tended to proviuce an impression of the happiest kind. If there were men to whom the constitution had begun to appear odious, that acquittal must have softened their animosity, and disposed them to regard it with a friendly eye; if there were others wavering in their sentiments, it must have had the effect to revive their attachment, and confirm them in the line of their duty, more than all the peval laws that the legislature could enact in a century. Even if those persons who had been tried entertained opinions hostile to the constitution — and he did not deny that in the societies there were some men of that description still he considered it as a glorious event for the constitution itself, that those persons had been acquitted. Nay more, if even men, whose sentiments were hostile to the constitution, had found refuge from that strict and in partial justice which it administered to all, such an event he could not but consider as calculated to convert disaffection and enmity into admiration and applause. This he believed to be the real effect of these trials, although the learned gentleman made use of them in his argument, in order to shew a spirit of disaffection to the constitution in a considerable part of the people.
With regard to the other part of the bill now before the House, that which regarded the penalty of misdemeanour, it called for animadversions, as it referred to an offence more likely to occur often than the offence of high treason. The learned gentleman had urged, that it did not, in the first instance, create new misdemeanour; he did not know that it did; this, however, he knew, that it defined that which, by the law as it stood, was subject only to the penalty of misde.
meanour, to the penalty of felony, although it should not be stated in the indictment to be a felony. He wished to know, whether the provision in the late libel-bill would be allowed to apply to the new law, or whether the bill was not to renew the usurpation of judges upon the old law, and deprive the jury of the privilege of examining into the intention of the accused, and from that intention to find their verdict; or, were they to be left to find the dry matter of fact, and was all the rest to be in the hands of the court, to be disposed of as mere matter of law? The most material part of the case in this view was that which subjected a man for the second misdemeanour to transportation. How the honourable and learned gentleman would answer this he could not tell, but he was sure it was not in the power of human skill and ability to answer it satisfactorily. His learned friend (Mr. Erskine) had observed, that this description of offence was so wide and general, that by applying a sentence of equal severity whenever an offence was repeated, the same punishment might be made to include the most venial errors, and the blackest crimes. It was a great principle of justice, that the punishment should be proportionate to the offence; but by the regulation proposed, this principle would be entirely defeated. Would the honourable and learned gentleman say, that by the analogy of law a comparative distinction could be made between the second misdemeanour and the first? Was it not essential, that the distinction should be kept up between a misdemeanour and a felony? And was it not essential that there should be a proportion between the punishment for one and another misdeineanour? There were some misdemeanours of so slight a nature, that though a thousand times repeated, they would not, in point of enormity, be equal to one of a more serious description. Under the head of misdemeanours was defined, whatever might tend to excite hatred and contempt against the constitution. He, who complained of the inequality of the representation, and, in illustration of his argument in support of a reform in parliament, referred to a borough so and so situated, might, from the operation of this bill, be sent to Botany Bay for seven years !
I wish (said Mr. Fox) you had made it death ; the punishment would not have been more severe; and would be better understood by it. Compare this with the most atrocious misdemeanour in cases that are not political., Suppose a man be convicted of an assault, with intent to kill bis own father, and repeats it as often as imagination can suggest, still he will be punished as for a misdemeanour only, which is fine and imprisonment: but if he be guilty, twice of insisting on the propriety of a reform in parliament, he may