the case, it behoved that House to consider whether they were not called on to consult their own feelings, and endeavour, by an honourable interference, to promote the success of that cause which they professed to support. Upon these grounds he should support the motion of his honourable friend.

The motion was also supported by Mr. Grey, Mr. Whitbread, Mr. W. Smith, Mr. R. Thornton, Mr. Martin, Mr. Stanley, and Mr. Courtenay; and opposed by Mr. Burke, Mr. Ryder, the solicitor-general, and Mr. Jenkinson. On a division the numbers

MR. ADAM'S MOTION FOR A COMMITTEE TO CONSIDER OF THE CRIMINAL LAW OF Scotland,

March 25.

R. ADAM, still persisting in his determination to introduce,

justiciary, that would be more favourable than the present to the liberty of the subject, and to a milder administration of justice, moved, this day, "That a committee be appointed to take into consideration so much of the criminal law of Scotland as relates to the crime of leasing-making; the crime of sedition; the right of appeal from the supreme criminal courts in Scotland; the right of convicted persons to a new trial; the law as it regards the competency and credibility of witnesses, particularly in answering the preliminary questions; the law respecting the admissibility of evidence under the allegation of art and part; the mode of returning and chusing the common jury; the legal grounds of objection to jurymen; the power of the lord advocate as public prosecutor; the propriety of introducing a grand jury for the purpose of finding bills of indictment, and making presentments in criminal cases; the power of the court in punishing contempts of court; the power of the sheriffs, and other magistrates, in taking precognitions, or informations for the commitment and trial of persons accused; the power of courts of inferior jurisdiction in criminal matters to try crimes without the intervention of a jury; and to report the same, with their opinion thereupon, to the House." After the motion had been ably supported by Mr. Serjeant Adair, and opposed by the master of the rolls, the

lord advocate of Scotland, and Mr. Secretary Dundas, who contended that the Scottish nation were very happy under their own laws, and that the alterations proposed would be a violation of the articles of the union,

Mr. Fox rose and said: Sir, I have often been surprised at doctrines advanced in this House; I have often prepared myself not to be astonished at any desertion of former principles; I have often had my understanding perplexed and confused; but never did I find myself so much at a loss as on the present occasion. The learned lord advocate commenced and concluded his speech with reproaching my learned friend who sits near me, (Mr. Serjeant Adair,) with misquoting and mistaking the law of Scotland; but after preparing to expose my learned friend's ignorance, after increasing our expectations, he did nothing more than repeat, but in a louder tone, what had fallen from my learned friend, and what had been asserted by both the gentlemen who spoke so ably in support of this motion. I really, Sir, supposed that I did not hear the lord advocate, or that I misunderstood him. My learned friend, speaking of the construction of petty juries in Scotland, said, that from the forty-five chosen to try the cause, fifteen were struck by the court. Now what statement can be more alarming to justice, what more dangerous to the liberty of the prisoner? But when the lord advocate comes to speak on the same subject, notwithstanding his surprise at the ignorance of my learned friend, he uses the very same words, and says, that after the forty-five were given in to the court, the judges selected fifteen; not as in England, by taking the first twelve that came, or on special juries, by ballot, but by selecting number one, two, or any other number as best suited his purpose; and the manner in which the first list was made out by an inferior officer of the court, only served as an additional cause for alarm, because it rendered packed juries more easily obtained; for certainly the power of the judge to select such as he pleased from the number, was tantamount to a packed jury. If the lord advocate intended that we should believe my learned friend had mis-stated the matter, he should have framed some argument, either to shew that the jury was not packed, or that there was no danger of such an event taking place.

With respect to the power of the lord advocate, he can create prosecutions. I collect from the learned lord, that if the guilt of any person is made out, the court will order the prosecution to be commenced; but this is only with respect to public crimes, in which the lord advocate may commence or discontinue any prosecution. But he has

treated the argument of the able mover with great unfairness: he has said, that my learned friend wishes to introduce the whole of the criminal law of England into his country, and on the impropriety of this measure he has dwelt for a considerable time: he should recollect, that my honourable friend was not speaking of felony or larceny, but of public crimes against the state; and that it was only the criminal law which related to those crimes, that he wished to introduce. In that sense I am certain the House understood him. Did my honourable and learned friend mean any thing else, much as I admire his talents, and much as I might respect his intention, I certainly could not coincide with him. In many respects I revere the criminal law of England; but it would be after serious reflection, and unprejudiced consideration, that I would consent to extend it, with all its penal statutes, to any country; because there are several of those statutes, that contain provisions, of which I can by no means approve. My honourable and learned friend meant only to introduce the criminal law which relates to sedition; and in his examination into the law of Scotland, with a view to its alteration, he does not assert that he would change it generally, but particularly, and only as far as relates to leasing-making, and the other points enumerated in the question.

The lord advocate has spoken of the act of union. He says, that by this act we are prevented from making any change in the jurisprudence of Scotland; but he ought to have recollected, that the emphatic words of that act not only declare what the law is, but that the criminal law of Scotland may be altered by the parliament of Great Britain, when in its wisdom it should be deemed expedient and requisite for the public good. He has mentioned the different laws which support his assertion; the learned lord, however, says, that we should not proceed to make any alteration, until it come recommended from the throne, as had been the case in respect to the law of treason. Indeed, Sir, we have lately heard such strange things advanced of our constitution, we have seen it receive so many wounds, that we ought not to be astonished at this suggestion. Does the learned lord mean, that we are to wait until ministers come down to this House to complain, that the prerogative of the crown is exerted too strenuously against the privileges of the people, that they who oppose their measures are punished too severely, and that the law ought to be made more lenient? I cannot understand what the learned lord intends by this idle assertion, which means nothing; and that it does mean nothing, is the best construction that can be put upon it. The next case the learned lord said, had proceeded after a previous inquiry

between the House of Lords and the court of justiciary. I have as high an esteem for the House of Lords, in their judicial capacity, as any person can possibly have, but I cannot allow them any exclusive right to legislate, nor that any such alteration of the law ought to originate with them; for in their legislative capacity pro tanto the House of Commons is in every degree equal. Indeed, the learned lord saw the folly of this argument, for he was obliged to own that the bill was rejected in the first instance, and came from the Commons at last: but, then, he said it was carried through by the attorney and solicitor general; this might appear to the learned lord very proper; but I trust we have not yet forgotten all sorts of equality so much as to sanction a measure because it comes from this or that lord in one house, or from the attorney and solicitor general, or any member in the other. We all have the same trust reposed in us by our constituents, and our duty being the same, so is the degree of respect to be paid to us. This question, I contend, should be treated as a practical one. But, Sir, there may be some members in this House, and I have reason to think there are, who were not present during the late discussions: there may be some, who, attending cursorily, and hearing the debate relating to Mr. Muir and Mr. Palmer, and the one of this night, may conclude that the proceedings adopted with respect to these gentlemen were legal; but I persist in contending that this was by no means the case. These are the first punishments inflicted on such crimes. It is true, they argue on the other side, that they are legal. They argue from analogy; they admit (for obliged they are to do so), that in the sixteenth century no such punishments were inflicted on conviction of such offences; they can consequently find no precedents to bear them out on this occasion. In vain they searched; no industry, no trouble was spared. Certainly the lord advocate would have availed himself of it, could any such be found. But, Sir, the right honourable secretary asserts, that the people of Scotland enjoy practical happiness. When did they attain this desirable situation? Let him point out the date, and name the period. Was it under the reign of Mary, or the two first Stuarts? Was it at the union of the two crowns, in the reign of Charles the Second, or of his brother James? If there has been any period at which happiness has been enjoyed in that country, it must be since the union or revolution: but these crimes were never punished with such dreadful severity till within the last eighteen months; and no precedent can warrant that severity, except the infamous and abominable precedent of 1704. The right honourable secretary says he likes the criminal law of Eng

land, but that of Scotland better; he will not therefore consent to alter it; and he doubts whether it can be altered. Has it not, Sir, been altered by parliament since the union? Did we not change it with respect to treason in 1708? Yet, in the reign of Queen Anne, when we did change it, we were not considered guilty of a breach of faith.

But, Sir, does not every circumstance of the late proceedings dictate the propriety, nay more, the necessity, of going into an inquiry? What was advanced by one of the judges of the court of justiciary on a late occasion? "New crimes," said the judge," arise from the new state of things; and courts, not legislatures, are to find new and adequate punishments." From the time of the union down to the present, no such punishment is found. The circumstances of the country are new; the lord advocate is puzzled; he finds no precedent for a century; he looks for the law; and where does he endeavour to find it? Not subsequently to the union; no, but beyond the union of the two crowns; and not finding it any where, he has recourse to ingenuity; he reasons from analogy, and finds he may transport these culprits to Botany Bay! This, Sir, is a new case; for which there is no punishment prescribed by statute, no precedent to support it, nothing which can warrant it, but an argument from analogy. For my part, I think the new method of punishment in Scotland as dangerous as the old method in England is adequate. What then is it we say to you? We tell you, "We live in a country not totally exempt from the crime of sedition, though we allow there never was less of it than since the accession of the House of Hanover; we, who are well acquainted with the crime, are able to judge what is the punishment suited to the offence: we know that, in point of fact, the punishment inflicted in this country is so adequate, that sedition was never less complained of. We have practice in our favour: you are totally ignorant of the crime, and equally ignorant of the punishment suited to the crime; you may have had more confusion in your country for the last century than we; but we think a few libels, and one or two mobs, better than two rebellions; this

crime to you is new, to us it is old; we tell you your new remedy is dangerous; our old one we find adequate; we therefore wish to recommend it."

But, while we are kindly interfering, while we are offering our friendly advice, we are told that we are speculatists, that we are no judges, and incapable of dictating what ought to be your conduct. When we offer part of the criminal law of England, and tell you that imprisonment is the punishment suited to the offence, you return for answer, that imprisonment for many years is worse than transportation. This, Sir,