diction. The court took upon itself the de- behold, judiciary power holds out to the intermination of its own cause: it was at the jured and imprisoned debtor a mean of desame time julge and party. The law was stroying this legal magic: the talisman is no sacrificed to interest. The good old maxim other than the far-famed Habeas Corpus Act, of Boni Judicis est ampliare Justitium, vene- which may, only in those times when admirated by the founders of the constitution, was nistration procures its suspension, be put in exchanged for a new doctrine. Boni Judicis motion by the application of the prima vita ; est ampliare Jurisdictionem, became the favo- some six or eight guineas will obtain the imrite motto of the bench. How well the spirit mediate interposition of this enchanting wand, of this rule has been preserved by succeeding if its operation is not arrested for want of an judges, the daily experience of mankid will alias and pluries, and the imprisoned debtor best prove."

will find himself presented in propria persona My author proceeds to show the measures before the very tribunal of whose injustice he which were occasionally taken by the legis. complains: he has then to submit to its conlature, to curb the propensity of the courts to sideration the legality of his imprisonment! endanger, by their practices, the rights of the judges are to determine on their own acman. Observing that the benevolence of the tions! for it is they who authorize and conlegislature was productive of but little advan- nive at the measure. Surely it is unnecessary tage, for the operation of the laws were ren- to remark on this boasted charter, the great dered abortive by the politic maneuvres of security Englishmen have for their personal the courts; and adds, the court of king's. liberty! Whatever good it may render a perbench proceeded in its course, and exulted in son confined for supposed crimes, or on what the prolongation of its hour of insolence. a Court may call unwarrantable authority, as All civil causes were violently drawn before many no doubt have been, it can render no it; the greatest encouragement was given benefit to an unfortunate debtor, confined for both to suitors and attornies, by a connivance the supposed hostile invasion of his neighin abuses the most shameful and disgraceful bour's close, by the connivance of the Court to our national character. These enormities itself! were attempted to be restrained by the legis- i If the laws respecting debtors were admilature; but they will continue to be a reproach nistered according to ancient usage, those to the court of King's-bench, and a disgrace unfortunates would become happy. But it to its judges, so long as the records of this must be accompanied with the abatement of kingdom shall remain, so long as Englislimen the nuisance, which every where intrudes shall execrate the destroyers of their primary , upon your view—the fall of petiifogging atrights.---Let us no longer be insulted with an tornies, and all their gang. But will lawyers assumption of power, which, however a con- of eminence so far forget l'esprit de corps, as tinued usage may have made it familiar to to aid such an endeavour; it is to be feared the multitude, cannot obtain respect from the their interests are too nearly connected with accurate and impartial observer.

the base creatures of the profession, to permit Having concluded a long and interesting them to join in the support of the causo of chapter on the subject of the abuses of the liberty. To them then the defendant declines courts of judicature, previous to the time of to apply. Shall he apply to parliament? That Charles 2nd, this author goes on: “We now body has had the question too often before enter upon the last stage of our historical de- them, without deciding upon the contradicduction, and proceed to lay before the public tions which appear between the law and the those recent provisions which the wisdom of practice. To them then he does not apply; the legislature has deemed advisable, for the but he applies to a more numerous and to as purpose of ascertaining the opposite interests well-informed a body of men. of creditors and debtors. From the Restora- Lord Kenyon here told the defendant, that tion to the present time, the general aspect he was advancing to the edge of a precipice, of things has received but little alteration. of which it was his duty to inform him. The No law has been made to declare the legality sentiment he was about to express inight be of imprisonment for debt, consequently that taken down, and turned against him, if the practice has received no additional sanction. language could be construed into an offence If previous to that period it was illegal, and against the law. contradictory to the constitution and to the To which Mr. Lloyd replied, That he was common law, it still continues in the same very sure of the ground upon which he trod, predicament, and is equally liable to repre- and did not fear to proceed to what was hension.”

thought the edge of a precipice. He knew But I am unwilling to detain gentlemen by that his words might be taken down, and a recapitulation of arguments, although they perhaps, by some ingenious person, tortured are expressed with animation, and carry along into a crime. He was willing to save any with them absolute conviction. I think I see one the first part of this trouble, by furnishimpatience seated in the visages of some ing him with a copy of the speech; for he had around me, I shall therefore proceed to other reduced what he had to say on this head to observations.

writing, previous to his coming before the Next then, gentlemen, you will please to Court.

subject, connected with the present, in order century ago; but, gentlemen, I solicit you that you may not be misled in determining upon not to be led astray by hoary-headed error; the legality of civil imprisonment. I apprehend let us leave these crooked and labyrinthic it will be asserted here, because I know it has ways, and return to the straight path of rectibeen asserted elsewhere, that the practice of tude, leading to the only sure and perinanent civil imprisonment is legalized by acts of par- 1 ground which human laws can rest upon: liament and the practice of the courts of judi- | let us regain, rather let me say, let us retain cature. There may be acts of parliament first principles, and examine the reason and which seem to authorize such a procedure, propriety of things, abstractedly from the but I have not yet discovered them, either custom and usage of latter times: in which express or implied; but if there were such case you will certainly find the necessity of acis, they are not to be considered as binding, conducting the prosecution of offenders, by a if they are contrary to Magna Charta. previous finding of the fact by a uniform pro

Gentlemen may be astonished to hear this cess, in order to preserve an equal distribulanguage; but I conjecture that upon exami- tion of justice; and you will find, that such nation, they will incline to agree with me. was the good old policy of your Saxon an

It is but a few years since this country cestors; such was the common law of the rested from an expensive and bloody contest nation, previous to the introduction of the with her quondam colonies, which she had abominable despotic court of Star Chamber; been engaged in, by a weak and injudicious and you will find that such continues to be administration, in order to support the supre- the common law (a law secured to you by macy of the British parliament; and the prin- charter) at the present moment. ciple of that war was applauded by most of Among the early laws of Ethelred, it was the addressers, in every quarter of the nation. declared that all offenders should be accused

- It is but to-day that like addresses are by grand juries; they were sworn quod pouring in from all sides, applauding the Bri- nolint ullum innocentem accusare, nec alitish constitution--from this versatility and quem noxium celare,” they were not to accontrariety of opinion there seems to arise a cuse the innocent, nor screen the guilty ;delicate dilemma_either the British parlia- their duty toward every individual of the comment are not omnipotent, as contended at the munity is here pointed out; every person falls expense of one hundred and thirty millions of within the one or the other class ;-and there money, and the lives of one hundred thou- is left no person on whom an attorney-general sand men; or the boasted British constitution may seize; there is no middle ground left undoes not exist: if the power of parliament is occupied—the jurisdiction of the grand insupreme, it may infringe, abridge and destroy, quest extends over all cases. every right which the people of England claim Mr. Justice Blackstone has however given as constitutional. Or if the constitutional us a different account of this point of law; rights, secured by Magna Charla, cannot be but he has reference to no authority; he says, changed by act of parliament, then is not that the power of filing informations er officio your parliainent supreme, and every act which is given to the crown by the law; and then, militates against those rights is null and void. instead of showing this, he proceeds to state, -The Court may take its choice of these that the power was originally reserved in the alternatives, either insist upon the supremacy great plan of the English constitution, wherein of parliament, to destroy a constitutional right provision is wisely made for the due preserderived under Magna Charta, and thereby vation of all its parts. legalize imprisonmeni for debt-or admit the As I know not to what great plan he alrights of the people, as recognized in that Iudes, for I know indeed of no plan of the Great Charter, and condemn the folly of par- English constitution, I have been unable to liament as expressed in the reasons which discover the ground on which he pretends to induced the dismemberment of the Empire, bottom the practice of process by information; and the loss of territory in every quarter of and therefore cannot clearly show his misthe globe.-While this happy and glorious take—but added to this, the circumstance of constitution of yours is a subject claiming the my close confinement, debarred of every inadmiration of those who are paid for support- tercourse with mankind for twenty-two days, ing it, its non-exercise is to nie, and all those when I was ordered to be deprived of the use confined by the arbitrary discretion of courts of pen, ink, and paper, and then being sent of justice and wardens of gaols, a most serious to Newgate and put into a room with six and unbearable oppression.

other persons for four weeks, and it cannot I mean now to proceed into an examination be wondered at, that I am not so fully preof the present prosecution; in which I shall pared on this or any other point as I might offer some reasons for at least doubting the otherwise have been. constitutionality of making formal accusations Every person has, no doubt, heard of the by way of information. It will not be suffi- famous court of Star Chamber, the prompt cient that lawyers tell you on this head, as tool of a despotic monarch. To this court was they will probably tell you on the last, that given (by that to be sure very excellent prince long practice has rendered that lawful now, whom I noticed once before, Henry 7), the which might have been held questionable a power of judging of (in prosecutions by information) the law, the fact, and the punished, and that many others have doubted the ment. This court, so agreeable to kings, legality of prosecutions by information is nocontinued in high vigor, through the reigns of torious.—The dark and conclave manner of the violent and lustful Henry 8.--the boyish such procedure is contrary to honest policy, Edward 6—the detested Mary—the despotic and unworthy of freemen—it suits despots, and imperious Elizabeth—and the silly pedant and the greatest tyrants in England have alJames 1. It had daily increased its authority ways used it most.-If any gentleman can for more than a century, when Charles ist, show me the history of proceedings in cases, was compelled by his people to abolish it, who of the king against subjects, by way of inwould no longer suffer either his or his minis formation, I will venture to predict that it ters' oppression. The exertion of the prero- unfolds to view tyrannies and oppressions gative of the crown to the injury and oppres- which should harrow up man's soul. sion of the subject, which by-the-by extended Finding myself too much fatigued to conno farther than to obtain annually of the peo- tinue my arguments on the doctrine of inforple, for all the purposes of government, about mations at the present time, I am compelled, one million of money, prerogatives which had though unwillingly, to abandon the subject long lain dormant, and now threatened to in the incomplete state it is in.--I had also be carried into practice, aroused the sleeping prepared myself to combat the construction lion.

which the attorney-general has been pleased The people heard with astonishment doc- to give to the paper pasted up in the prison, trines prcached from the throne and the and to demonstrate that it is no libel, to say pulpit, subversive of liberty and all the na- that a house is to be let, which is every day tural rights of humanity. They examined | letting at fifteen-pence per week for each into those doctrines, and found them wickedly room, and which is notoriously changing its and fallaciously supported; and common rea- tenants almost every day in the year. But son assured them, that if the prerogatives this and much more I must defer to some contended for by the monarch were of human other opportunity, if one should ever be furorigin, no constitution could establish them nished to me. beyond the power of revocation : no precedent Although I feel a regret in not being able could sanctify, no length of time could con- to urge the whole of my arguments, yet as an firm them. The nation found they had abi- advantage may result to others, it tends to lity, as well as inclination, to resist the mo- lessen the regret I feel.—The presiding judge narch's unjust pretensions, and they suc- of this court is, I understand, called upon this ceeded.-Charles, before his execution, gave day at an early hour to preside in the legisup the loans and benevolences he had used lative body—it has been held that liberty is to extort; conceded the right to cxert martial insecure where the legislative, executive, and law in time of peace; put down oppressive judicial authorities are exercised by the same courts; renounced ship-money and other ex- person, yet no one complains here of an inactions; yet it has been seen that those con- congruity. The judge will be in time to act cessions were not made with so good a grace his part as a legislator, as I shorten my arguas to conciliate the confidence of the people : ments. he had either lost the reputation of sincerity, I shall now conclude my defence by a paror had never possessed it, which is as great ticular examination of the charges laid in the an unhappiness as can befal a prince: and information, and of the evidence brought in thus within a few years terminated monarchy support of them. and courts of Star Chamber.

The first charge is, that we conspired and Upon the dissolution, says Blackstone, the agreed to escape, and to excite the other priold common law authority of the court of soners to escape; that in pursuance thereof, King's-bench, as the custos morum (keeper of and with intent to carry the same into effect, the manners) of the nation, being found ne- we caused to be sluck upon the chapel door, cessary to reside somewhere, for the peace and thereby published, a paper, denominated and good government of the kingdom, was by the attorney-general an infamous and seagain revived in practice; and it is observa- ditious libel. ble that by the same act of parliament which The evidence falls short of proving any abolished the court of Star Chamber, a con- thing like a conspiracy or agreement to escape: viction by information is expressly reckoned the warden tells you he never heard that upon as one of the legal modes of conviction either us or any of the other prisoners conof such persons as should offend a third time templated an escape, nor does it even appear against the provisions of that statute. from the testimony of any, or all of the wit

It is true (adds he) Sir Matthew Hale, who nesses together, that Mr. Duffin and myself presided in this court soon after the time of ever had an interview : for all that the jury such revival, is said to be no friend to this can see to the contrary, we were utter strangers method of prosecution.-But he goes on to to each other; it will not therefore be consuppose, that Hale objected, on account of the tended that the first part of the first charge abuse of the authority, rather than that he has the least shadow of foundation. doubted the legality :-But I see no reason for With respect to the publication of the paper, Blackstone's supposition ;-That Hale doubt-called a libel, on the chapel door, it is in proof VOL. XXII.

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that Mr. Duffin was seen to stick it up there, Mr. Bearcroft. As you know in what the but is there any thing said of my being pre- difference lies, point it out. sent? Not one word–how then can the jury Mr. Lloyd then read the paper the witness infer that we fixed up the pasquinade? Schoole had reference to in his testimony;

It is true that it appears from the evidence and it appeared to vary from what was charged of Mr. Schoole, that three or four hours after the indictment by the addition and alterathe first bill was posted up, and even taken tion of the words marked in italics.“ This down, I was seen writing a certain large house to let, peaceable possession will be sheet of paper, which however the witness given by the present tenants, on or before the would not positively swear to be the same as first day of January next, being the comthis produced in court, for it was untinished mencement of the first year of liberty in Great he says when he saw it. It is truc also, that Britain. The republic of France having rooted the same witness heard me, in common with out despotism, their glorious example and several others, read that, or some other paper complete success against tyrants render such aearly like that paper aloud, and thereby I intamous bastiles no longer necessary in Eupresume it will be said that I published it.- rope." . But it is not true that all the questions put to Mr. Lloyd added, that the evidence of the him, respecting a club in the Fleet prison, by warden went only to repeat a conversation ingenious counsel were sufficient to extort an which took place four days subsequent to the answer sufficient to prove a conspiracy or time at which the information charged the agreement between the defendants.

publication of the libel, and was only remarkNow taking it for granted, for argument's able for not proving any one circunstance for sake, that the large paper (not positively which the defendant was now trying-In. sworn to by Schoole) was written and pub- stead of swearing that Lloyd owned himself lished by me, yet the jury cannot condemn the publisher, the warden swore he was de me upon the charges before them. The first sired to take notice that he (Lloyd) did not charge must be relinquished with respect to admit himself to be any wise concerned in me, because no evidence thereon appears the transaction.--Here Mr. Lloyd rested the against me. The second states—and here I merits of the cause. must set the counsel who opened this cause The Chief Justice summed up the evidence, right; he said the second count dropped the and allowed the validity of the objection taken charge of our conspiring to escape and to by the defendant Lloyd, saying, that if the liberate the other prisoners — the second publication of the paper containing some count only drops the idea of our conspir- small variation from the libel charged in the ing to escape, but charges us with con- information was the only thing exhibited triving, devising, and intending to stir up against him, that the jury must acquit himothers to escape, in order to effect which we but if the jury were satisfied and believed that published the wicked libel before charged.- Lloyd was concerned with Dutřn, in publishNow, gentlemen, you have nothing to do buting the other paper pasted on the chapel compare the wicked paper said to be written door, they would tind both the defendants by me, and which is the only one with which guilty. I can be supposed to have any concern, with Mr. Lloyd took up the two hand-bills prothe libel charged in the information, and you duced in court, and desired the jury to take will find it to be of a tenor and effect different them with them when they withdrew, in orfrom what is stated in the information.—If der to compare them with the charges in the it was proved by a cloud of unerring witnesses information. that I wrote and published that paper, yet I The Chief Justice ordered him to sit down, could not be convicted of another offence on saying, you have no right to dictate here. such testimony. I am charged by the attor- Mr. Lloyd then requested the judge to order ney-general with one thing, and another the papers to be sent with the jury, saying, thing is attempted to be proved—what, gen- it was a matter of indifference to him whetiemen, can your verdict be?

ther he was allowed to hand them to the Mr. Bearcroft asked, if the two papers pro jury, or whether it was done by the special duced in court, one sworn to have been stuck order of the Court—he only desired, for the up by Duflin, and the other to have been read sake of justice, that the thing might be by Lloyd, were not verbatim et literatim the dune. same?

The Chief Justice order him to be quiet, and Mr. Lloyd said, they were not, and if gen. say no more. tlemen would take the trouble of perusing During this altercation, the jury had rethem, they would discover a material dit- tired without the papers, and in a few miference.

nutes returned, and brought in their verdict, Mr. Bearcroft desired the defendant to point -Both Guilty. out where they differed.

Mr. Lloyd said, if any person would hold of the judgment passed upon Duffin and one copy, he would read the other, and the Lloyd, I have met with no other account variation would be discovered to every one than the following, which is extracted from present.

the Annual Register for 1793, Chronicle:

a