A.D. 1770. HIS CONDUCT IN PARLIAMENT. 175 CHAPTER CLVI. CONTINUATION OF THE LIFE OF LORD THURLOW TILL HE WAS MADE LORD CHANCELLOR. A.D. 1770. THE new Solicitor-General escaped knighthood, now considered a disgrace." He was immediately obliged to present himself before his constituents at Tamworth, but he was re-elected without opposition, and he continued to represent this place till he was transferred to the Upper House. He did not, by any means, disappoint expectation as a parliamentary partisan. While a representative of the people, he ever readily and zealously followed the instructions of the Government, as if he had been arguing in a court of law from his brief. He often displayed, in the debate, vigorous reasoning and manly eloquence, and, when beaten, he could always cover his retreat with a broad assertion, a cutting sarcasm, or a threatening look. The first occasion on which he distinguished himself, after becoming a law officer of the Crown, was in the debate on the covered with literary glory by the recent publication of his "COMMENTARIES," which rescued our profession from the imputation of barbarism; and, while it contained a systematic digest of English law, was justly praised by Charles Fox for its style as a specimen of genuine Anglicism. But the Doctor, being returned for Westbury at the same time as Thurlow for Tamworth, entirely failed in the House of Commons. Being called forth to defend the Government on the Middlesex election, he wrecked his reputation as a constitutional lawyer; and George Grenville, reading the book, proved that he had contended for a different doctrine in debate from that which he had laid down in his Commen. taries. Having published a pamphlet in his own defence, he got into a controversy with Junius, in which he was signally worsted;* and his retreat from political life was now earnestly desired both by himself and by his patrons. Thurlow was their man! The Duke of Grafton's MS. Journal, after stating that Lord North behaved ill to his Solicitor-General, thus proceeds:-" Mr. Dunning was too high-minded to submit to any indignity. Not long after, he resigned his office, and was succeeded by Thurlow, a bold and able lawyer, and a speaker of the first rate, as well in parliament as at the bar. His principles leaned to high prerogative, and I fear his counsels brought no advantage to the King or the nation." u George III., to keep up the respectability of the order, soon after insisted on the law officers of the Crown, as well as the Judges, submitting to it; and the same rule has since been observed, unless in the case of the sons of peers, who are "honourable" by birth. * See Junius to Sir W. Blackstone, 29th July, 1769, and the four following letters. motion for leave to bring in a bill to take away the power of filing Ex Officio Informations. This was opposed, in a very able and temperate speech, by Sir William De Grey, the Attorney-General, who showed, by clear authorities, that the power by law belonged to his office, and argued that there could be nothing unconstitutional in his being allowed, upon his responsibility, to bring a man to trial for sedition before a jury, who would decide upon the truth of the charge. Serjeant Glynn and others followed on the opposite side, contending that the power was liable to abuse; that it had been abused; and that a jury was no protection, on account of the fashionable doctrine now acted upon by Lord Mansfield and other judges, that "the jury had nothing to do with the question of libel or no libel; the criminality or innocence of the writing charged to be libellous being a pure question of law for the determination of the Court."-Thus answered Mr. Solicitor, in that rude, bantering, turbulent, impressive style of oratory which characterised all his parliamentary harangues, and which gained him such a reputation with his contemporaries : "Sir, however much a representative may be bound to express the voice of his constituents, I cannot greatly approve of that patriotism which prompts any member to adopt every popular rumour, and to assert the rumour as a fact, on his own authority. We ought to make a discreet selection, to distinguish between truth and falsehood, and not to swallow every vulgar prejudice. Therefore, I cannot applaud those oblique reflections which, in imitation of pamphleteers and newsmongers, some honourable members seem so fond of casting on this House. Such strokes may serve as stilts to raise the authors up to the notice of the mob, but will not, I am persuaded, add to their character in this assembly. The artifice is too gross to deceive. There is no lawyer, nor any other sensible person, within these walls who will not allow all the prosecutions lately carried on by the Attorney-General were extremely proper, if not necessary. Why, then, should we, when no real danger, no late encroachment presses, sally forth, like a band of Quixotes, to attack this windmill of a giant, this imaginary magician, who keeps none of our rights, none of our privileges, under the power of his enchantments? Not a single wight, not a single damsel, has he injured. All who pretend to dread him walk at large, ay, more at large, I suspect, than they ought. Our booksellers and printers have no reason to complain of being held in trammels. They are allowed every reasonable indulgence, and they carry it to its utmost limits. Shall we give licentiousness an ample range? For my own part, I cannot help considering the project as a crazy conceit, solely intended for gaining a little popularity; for men, however helpless, will 'spread the thin oar and catch the driving gale,'-the popular breeze, whose A.D. 1770. HIS SPEECH AGAINST THE LIBERTY OF THE PRESS. 177 murmur is so soothing to certain ears. But the wisdom and gravity of this House must perceive that the power at present lodged in the Attorney-General is necessary, as well for speedily punishing as preventing daring libels. If no other process is left but the common one of bringing the affair before a grand jury, the delinquent may in the meanwhile escape. No offender can be brought to justice. What is the consequence? The licentiousness of the press will increase. Crimes will multiply. Nothing will be published but libels and lampoons. The press will teem with scurrility and falsehood. The minds of the people will be misled and perverted by scandalous misrepresentations. The many-headed beast will swallow the poison, and the land will consequently be one scene of anarchy and confusion." He next applied himself to a recent conviction of a bookseller for the unauthorised act of a servant, and according to the report (which is scarcely credible) he worked himself up to say," In civil cases, the master is confessedly answerable for the faults of his servants. How comes he in criminal cases not to be subject to the same rule? The culprit was justly condemned, and will be justly punished.' He then comes to handle the rights of juries in cases of libel after they had been solemnly vindicated (be it remembered) by Lord Camden, who had recently resigned the office of Chancellor, having held it for several years with general applause :—“Sir, the other charge is equally groundless and absurd. The construction of libels belongs by law and precedent to the judge and not to the jury, because it is a point of law which they are not competent to decide. If any other rule prevailed,-if the matter were left to the jury,-there would be nothing fixed and permanent in the law. It would not only vary in different counties and cities, according to their different interests and passions, but also in the minds of the same individuals, as they should happen at different times to be agitated by different humours and caprices. God forbid that the laws of England should ever be reduced to this uncertainty! All our dictionaries of decisions, all our reports, and Coke upon Littleton itself, would then be useless. Our young students, instead of coming to learn the law in the Temple and in Westminster Hall, would be obliged to seek it in the wisdom of petty juries, country assizes, and untutored mechanics. Adieu to precision, adieu to consistency, adieu to decorum! All would be perplexity, contradiction, and confusion. The law would be like Joseph's coat, become nothing but a ridiculous patchwork of many shreds and many colours,-a mere sick man's dream, without coherence, without meaning,-a wild chaos of jarring and heterogeneous principles, which would deviate farther and farther from harmony. the prevention of this state is the crime with which our judges are charged! O tempora! O mores! to what are we at last come?" x This case is expressly provided for by a bill I bad the honour to introduce into parliament, commonly called "Lord Campbell's Libel Act," 6 & 7 Vic. c. 96, s. 7, saving the VOL. VII. Yet master from criminal responsibility for the N It does seem astounding to us that such a speech should be delivered, and tolerated, and applauded by the Ministers of the Crown after the Revolution, and in the latter end of the eighteenth century. It ought to be recorded, as showing the progress of public opinion and the improvements of the constitution in recent times. The matter in dispute-the AttorneyGeneral's power to file criminal informations for libel-is very immaterial. He might safely be permitted, in all cases as public prosecutor, to put parties accused on their trial, and the institution of grand juries will be preserved in this country for its collateral benefits rather than as a safeguard to innocence against unjust accusation. There is no longer any disposition in Attorney-Generals to persecute the press; and if there were, no difficulty is ever experienced in inducing grand juries to find bills of indictment in any cases, however frivolous. Looking to the manner in which indictments for perjury and for conspiracy are used as instruments of revenge, vexation, and extortion, it would be a greater improvement upon our juridical institutions to enact that no such indictments shall be preferred without the sanction of a responsible public officer, than that the power of filing criminal informations should be entirely abolished." But the observations by which Thurlow defended it were most insulting to public liberty, and, if now offered by a law officer of the Crown under what is called a Tory or Conservative government, would insure his being disclaimed by his leader overnight, and dismissed from his office next morning. But Mr. Solicitor Thurlow was so much applauded and encouraged, that on Serjeant Glynn's motion soon after, for an inquiry into the administration of criminal justice, he considerably exceeded his former doings; for he not only proposed a severe censure upon the mover, but plainly intimated an opinion that trial by jury should be abolished in all cases of libel, and that the liberty of the press should be in the exclusive guardianship of a judge appointed by the Crown :— "If," said he, we allow every pitiful patriot thus to insult us with During my seven years' Attorney-Generalship I filed only one criminal information-against Feargus O'Connor for libels in the "Northern Star," inciting the people to insurrection and plunder. There could not have been the smallest difficulty in having had an indictment found by the grand jury of the county of York; but I wished to take upon myself the whole responsibility of the prosecution. Cobbett (I think with some justice) complained that the AttorneyGeneral, instead of boldly prosecuting him by his own authority, had recourse to the subterfuge of an indictment, and by this, among other topics, obtained an acquittal. A.D. 1771. MADE ATTORNEY-GENERAL. 179 ridiculous accusations without making him to pay forfeit for his temerity, we shall be eternally pestered with the humming and buzzing of these stingless wasps. Though they cannot wound or poison, they will tease and vex. They will divert our attention from the important affairs of state to their own mean antipathies, and passions, and prejudices. I hope we shall now handle them so roughly as to make this the last of such audacious attempts. They are already ridiculous and contemptible. To crown their disgrace, let us inflict upon them some exemplary punishment. In deciding the question of libel, so many circumstances are at once to be kept in view, so many ponderous interests are to be weighed, so many comparisons to be made, and so many judgments formed, that the mind of an ordinary man is distracted, and confounded, and rendered incapable of coming to any satisfactory conclusion. None but a judge who has from his infancy been accustomed to determine intricate cases, is equal to such a difficult task. If we even suppose the jury sufficiently enlightened to unravel those knotty points, yet there remains an insuperable objection. In state libels their passions are frequently so much engaged, that they may be justly considered as parties concerned against the Crown. No justice can therefore be expected from them in these cases. In order to preserve the balance of our constitution, let us leave to the judge, as the most indifferent person, the right of determining the malice or innocence of the intention of the libeller. Much dust has been raised about civil and criminal actions; but to what purpose? Is not reparation to be made to the public for any injury sustained by the public, as much as to an individual? Is the welfare of the nation in general of less consequence than that of a single person? Where then is the propriety of making such a bustle about the malice or innocence of the intention? The injury done is the only proper measure of the punishment to be inflicted, as well as of the damage to be assessed." Jan. 23, 1771. This tirade against trial by jury, and confounding of civil injuries to individuals with crimes against the state, proved so agreeable to the higher powers, that at the end of a month Thurlow was promoted to the office of AttorneyGeneral, in the room of De Grey, laid asleep on "the cushion of the Common Pleas ;" and the Government was thereby supposed to be greatly strengthened. When he made these speeches he was exceedingly exasperated against juries, by reason of the verdict in the case of Rex v. Miller. This was a criminal information for printing and publishing Junius's celebrated letter to the King. It was contrived that the Solicitor-General, by reason of his supposed superior vigour, should conduct the trial on the part of the Crown. Notwithstanding his doctrine that the jury had a 16 Parl. Hist. 1290. |