"To the King's most Excellent MAJESTY: The humble ADDRESS of the Knights, Citizens and Burgesses, in Parliament assembled.
It is with the utmost Concern, that We, Your Majesty's most dutiful subjects, the Commons of IRELAND in Parliament assembled, find ourselves indispensably obliged, to represent to Your Majesty, our unanimous Opinion: That the importing and uttering of Copper Farthings and Halfpence by virtue of the Patent lately granted to William Wood, Esq.; under the Great Seal of Great Britain, will be highly prejudicial to Your Majesty's Revenue, destructive of the trade and commerce of this nation, and of the most dangerous consequence to the properties of the subject.
[Footnote 1: Addresses by the House of Commons and the House of Lords presented to the King in conformity with the resolutions passed by these Houses. See Introductory Note to the Drapier's First Letter. The texts of these addresses are taken from "Fraud Detected: or, the Hibernian Patriot," printed by George Faulkner in 1725. [T.S.]]
"We are fully convinced, from the tender regard Your Majesty has always expressed for our welfare and prosperity, that this Patent could not have been obtained, had not William Wood and his accomplices, greatly misrepresented the state of this nation to Your Majesty, it having appeared to us, by Examinations taken in the most solemn manner, that though the terms thereof had been strictly complied with, there would have been a loss to this nation of at least 150 per Cent. by means of the said coinage, and a much greater in the manner the said Half-pence have been coined.
"We likewise beg leave to inform Your Majesty, That the said William Wood has been guilty of a most notorious fraud and deceit in coining the said Half-pence, having, under colour of the powers granted unto him, imported and endeavoured to utter great quantities of different impressions, and of much less weight than was required by the said Patent.
"Your faithful Commons have found, by experience, That the granting the power or privilege of coining Money, or Tokens to pass for Money to private persons, has been highly detrimental to your loyal subjects; and being apprehensive, that the vesting such power in any body politic or corporate, or any private person or persons whatsoever, will be always of dangerous Consequence to this Kingdom, are encouraged, by the repeated assurances Your Majesty hath given us of Your Royal Favour and Protection, humbly to entreat Your Majesty, That whenever you shall hereafter think it necessary to coin any Farthings or Half-pence, the same may be made as near the intrinsic value as possible, and that whatever profit shall accrue thereby, may be applied to the public service.
"And we do further humbly beseech Your Majesty, That you will be graciously pleased to give such direction, as you, in your great wisdom, shall think proper, to prevent the fatal effects of uttering any Farthings or Half-pence pursuant to the said Patent.
"As this enquiry has proceeded entirely from our love to our country, so we cannot omit this opportunity of repeating our unanimous resolution, to stand by and support Your Majesty to the utmost of our power, against all Your enemies, both at home and abroad; and of assuring Your Majesty, that we will, upon every occasion, give Your Majesty, and the world, all possible demonstration of our zeal and inviolable duty and affection to Your Majesty's most sacred person and government, and to the succession, as established in Your Royal House."
"To the King's most Excellent MAJESTY. The humble Address of the Lords Spiritual and Temporal of IRELAND, in Parliament assembled, against Wm. Wood.
"May it please Your most Sacred Majesty, WE the Lords Spiritual and Temporal in Parliament assembled, are under the utmost concern to find, that our duty to Your Majesty and our Country, indispensably calls upon us to acquaint Your Majesty with the ill consequences, which will inevitably follow from a Patent for coining Half-pence and Farthings to be uttered in this Kingdom, obtained under the Great Seal of Great Britain, by one William Wood in a clandestine and unprecedented manner, and by a gross misrepresentation of the state of this Kingdom.
"We are most humbly of opinion, that the diminution of Your Majesty's revenue, the ruin of our trade, and the impoverishing of your people, must unavoidably attend this undertaking; and we beg leave to observe to Your Majesty, that from the most exact Enquiries and Computations we have been able to make, it appears to us, that the gain to William Wood will be excessive, and the loss to this Kingdom, by circulating this base coin, greater than this poor country is able to bear.
"With the greatest submission and deference to Your Majesty's wisdom, we beg we may offer it as our humble opinion. That the reserving the coining of Half-pence and Farthings to the Crown and the not intrusting it with any private person, body politic or corporate, will always be for Your Majesty's service, and the good of your people in this Kingdom.
"In confidence, Sir, of your paternal care of the welfare of this country, we beseech Your Majesty, that you will be pleased to extend that goodness and compassion to us, which has so eminently shewed itself to all your other subjects, who have the happiness to live under your protection and government; and that you will give such directions as may effectually free us from the terrible apprehensions we labour under from the Patent granted to William Wood."
The following was the King's reply to the above address:
"His Majesty is very much concerned to see, That His granting the Patent for coining Half-pence and Farthings agreeable to the Practice of his Royal Predecessors, has given so much uneasiness to the House of Lords: And if there have been any abuses committed by the Patentee, His Majesty will give the necessary Orders for enquiring into, and punishing those Abuses. And will do everything that is in His Power, for the Satisfaction of His People."
"To the right honourable the Lords Commissioners of his Majesty's Treasury.
"May it please your Lordships,
According to your Lordships' Order, the pix of the copper-money coined at Bristol by Mr. Wood for Ireland, has been opened and tried before us at his Majesty's Mint in the Tower; and by the Comptroller's account, to which Mr. Wood agreed, there hath been coined from Lady-day 1723 to March 28, 1724, in half-pence, fifty and five tons, five hundred and three quarters, and twelve ounces, and in farthings, three tons, seventeen hundred and two quarters, ten pounds, and eight ounces, avoirdupois, the whole coinage amounting to 59 tons, 3 cwt, 1 qr. 11 lbs. 4 ozs., and by the specimens of this coinage which have, from time to time, been taken from the several parcels coined and sealed up in papers, and put into the pix, we found that sixty half-pence weighed fourteen ounces, Troy, and eight pennyweight, which is about a quarter of an ounce above one pound avoirdupois; and that thirty farthings weighed three ounces, and three quarters of an ounce Troy, and forty-six grains, which is also above the weight required by his Patent. We found also that both half-pence and farthings when heated red hot, spread thin under the hammer without cracking, as your Lordships may see by the pieces now laid before your Lordships. But although the copper was very good, and the money, one piece with another, was full weight, yet the single pieces were not so equally coined in the weight as they should have been.
[Footnote 1: The copy of this Report as here printed is taken from the tract already quoted in previous notes, entitled, "A Defence of the Conduct of the People of Ireland in their unanimous Refusal of Mr. Wood's Copper-money ... Dublin: Printed for George Ewing, at the Angel and Bible in Dames-Street, MDCCXXIV." As already noted, the assayists had for trial only those coins which were coined between March, 1723, and March, 1724, and these coins were neither imported into Ireland nor attempted to be uttered there. As Wood asked for the assay, he no doubt knew what he was about. But even as it stands, the Report was not very favourable to him. The author of the tract named above enters minutely into this point, and for a further inquiry the reader is referred to pages 15 to 19 of his publication. [T.S.]]
"We found also that thirty and two old half-pence coined for Ireland in the reigns of King Charles 2d., King James 2d., and King William 3d. and Queen Mary, and produced by Mr. Wood, weighed six ounces and eight pennyweight Troy, that is, one hundred and three grains and a half apiece one with another. They were much worn, and if about six or seven grains be allowed to each of them one with another for loss of their weight by wearing, the copper-money coined for England, in the reign of King William being already as much lightened by wearing, they might at first weigh about half a pound avoirdupois; whereas only thirty of those coined by Mr. Wood are to be of that. They were also made of bad copper, two of those coined in the reign of King Charles II. wasted much in the fire, and then spread thin under the hammer, but not so well without cracking as those of Mr. Wood. Two of those coined in the reign of King James II. wasted much more in the fire, and were not malleable when red hot. Two of those coined in the reign of King William and Queen Mary wasted still more in the fire, and turned to an unmalleable substance like a cinder, as your Lordships may see the pieces now laid before you.
"By the assays we reckon the copper of Mr. Wood's halfpence and farthings to be of the same goodness and value with the copper of which the copper money is coined in the King's Mint for England; or worth in the market about twelve or thirteen pence per pound weight avoirdupois; and the copper of which the half-pence were coined for Ireland in the reigns of King Charles, King James, and King William, to be much inferior in value, the mixture being unknown, and not bearing the fire for converting it to any other use until it be refined.
"The half-pence and farthings in the pix coined by Mr. Wood had on one side the head of the King, with this inscription GEORGIUS DEI GRATIA REX: And on the other side, a woman sitting with a harp by her left side, and above her the inscription HIBERNIA with the date. The half-pence coined in the reigns of King Charles, King James, and King William, had on one side the head of King Charles, King James, or King William and Queen Mary, and on the reverse a harp crowned.
"All which facts we most humbly represent to your Lordships. April 27, 1724."
Since the heat of this business, which has of late so much and so justly concerned this kingdom, is at last, in a great measure over, we may venture to abate something of our former zeal and vigour in handling it, and looking upon it as an enemy almost overthrown, consult more our own amusement than its prejudice, in attacking it in light excursory skirmishes. Thus much I thought fit to observe, lest the world should be too apt to make an obvious pun upon me; when beginning to dream upon this occasion, I presented it with the wild nocturnal rovings of an unguided imagination, on a subject of so great importance, as the final welfare or ruin of a whole nation.
[Footnote 1: The following tract, written probably by Thomas Sheridan, Swift's humorous friend, is interesting as affording an example of the lighter kind of literature brought into existence by this agitation. It may be that Swift had a hand in its composition. The text is taken from a copy of the original broadside in the South Kensington Collection. It was published during the height of the controversy. [T.S.]]
But so it was, that upon reading one of the Drapier's letters, I fell asleep, and had the following dream:
The first object that struck me was a woman of exquisite beauty, and a most majestic air, seated on a throne, whom by the figure of a lion beneath her feet, and of Neptune who stood by her, and paid her the most respectful homage, I easily knew to be the Genius of England; at some distance from her, (though not at so great an one as seemed to be desired,) I observed a matron clothed in robes so tattered and torn, that they had not only very nigh lost their original air of royalty and magnificence, but even exposed her to the inclemency of the weather in several places, which with many other afflictions had so affected her, that her natural beauty was almost effaced, and her strength and spirits very nigh lost. She hung over a harp with which, if she sometimes endeavoured to sooth her melancholy, she had still the misfortune to find it more or less out of tune, particularly, when as I perceived at last, it was strung with a sort of wire of so base composition, that neither she nor I could make anything of it. I took particular notice, that, when moved by a just sense of her wrongs, she could at any time raise her head, she fixed her eyes so stedfastly on her neighbour, sometimes with an humble and entreating, at others, with a more bold and resentful regard, that I could not help (however improbable it should seem from her generous august appearance) in a great measure to attribute her misfortunes to her; but this I shall submit to the judgment of the world.
I should now at last mention the name, were not these circumstances too unhappily singular to make that any way necessary.
As I was taken up with many melancholy reflections on this moving object, I was on a sudden interrupted by a little sort of an uproar, which, upon turning my eyes towards it, I found arose from a crowd of people behind her throne; the cause it seems was this:
There was, I perceived, among them the god of merchandise, with his sandals, mostly of brass, but not without a small proportion of gold and silver, and his wings chiefly of the two latter metals, but allayed with a little of the former; with those he used to trudge up and down to furnish them with necessaries; with these he'd take a flight to other countries, but not so dexterously or to so good purpose as in other places of his office, not so much for want of encouragement among 'em here, as on account of the haughty jealousy of their neighbours, who, it seems dreading in them a rival, took care to clip his wings and circumscribe his flights; the former, more especially, being, by these and other means so much worn, he performed his office but lamely, which gave occasion to some who had their own private interest more at heart, than that of the public, to patch up some of the places that were worn, with a metal of the same nature indeed, but so slight and base, that though at first it might serve to carry him on their errands, it soon failed, and by degrees grew entirely useless; insomuch, that he would rather be retarded than promoted in his business, and this occasioned the above disturbances among his dependents, who thereupon turned their eyes towards their mistress (for by this time she will I presume be better known by that, than the more homely and sociable name of neighbour) and not daring of late to say or do anything without her approbation, made several humble applications to her, beseeching that she would continue them that liberty of refitting these implements themselves, which she had been formerly pleased graciously to allow 'em; but these, however reasonable, were all rejected, whereupon I observed a certain person (a mean ill-looking fellow) from among a great number of people that stood behind the genius of England, who, during the whole affair had kept his eyes intently fixed on his neighbours, watching all their motions, like a hawk hovering over his quarry, and with just the same design: Him, I say, I observed to turn off hastily, and make towards the throne, where being arrived, after some preparations requisite, he preferred a petition, setting forth the wants and necessities, (but taking care to make 'em appear at least four times greater than they really were) of his neighbours, or as he might have more truly and honestly said his own, both which, for the latter, though not expressed, he chiefly intended, but modestly or rather knavishly left to be understood, he begged the royal licence to redress, by supplying those defects which were the occasion of 'em. This humble suppliant I observed both before and after this petition, seemed to employ his utmost industry and art, to insinuate himself into the good graces of two persons that stood on each side the throne;[2]the one on the right was a lady of large make and swarthy complexion; the other, a man, that seemed to be between fifty and sixty, who had an air of deep designing thought: These two he managed with a great deal of art; for the lady he employed all the little arts that win her sex, particularly, I observed, that he frequently took hold of her hand, as in raptures, to kiss it, in such a manner as made me suspect she did not always draw it back empty; but this he did so slily, that it was not easy for anybody to be certain of it: The man on the other hand, he plied his own way with politics, remonstrating to him the several things he had before the throne; which however, as might be presumed from his manner of attending to them, seemed to make little impression; but when he came to lay before him the great advantages that might accrue from thence to their mistress, and consequently to him, he heard him with the utmost eagerness and satisfaction; at last, having plainly told him, that he himself should be a considerable gainer by it, and thereupon, that every thing that came to his hands of that nature should be at his service: As a sort of token or earnest he kissed his hand in the same manner he had the lady's, and so retired; by these and the like means he soon brought over both parties to him, who, with a whisper or two, procured him the royal licence; whereupon he immediately fell to making up a metal, if it deserved the name, of a very strange composition, wherewith he purposed to refit the implements of that useful deity, but in such manner, that for the base metal he put into them, he would take care to draw away from them an infinitely more than proportionable quantity of gold and silver, and thereby render him almost incapable of taking flight to foreign countries; nay, at last perhaps utterly so, when under pretence of their not being completed, he should filch in more of his metal, and filch away more of theirs.
[Footnote 2: The Duchess of Kendal and Sir Robert Walpole. [S.]]
These things being therefore prepared, he sends 'em over to his neighbours, and there endeavoured to get them admitted by fair words and promises, being too sensible that they were not of themselves the most willing to accept of his favour, and indeed he was not deceived; for they being advertised of his designs, had taken the alarm, and had almost to a man united in one common faction against him. This generous ardour had first taken hold of the most active and important part, and if I may be allowed to call it, the heart of this body, from thence was on one side by a quick passage, and in its more refined parts, communicated through the blood to the contemplative, and reasoning, the head, which it inspired with noble thoughts and resolutions; and on the other, to the inferior extremities, which were thereby rendered more expedite and readier to obey the dictates of the head in a rougher method of opposition, from each of which extremities being carried back to its fountain, it was returned to them from thence, and so backwards and forwards, till the circulation and union were confirmed and completed, the sordid unnatural, offensive parts being in the meantime thrown off as dregs of nature, and nuisances of human society; but of these in so well-tempered a constitution, there were but few; however, when there were any to be found, though they had been of the most exalted nature, and bore most noble offices in this body, by any corruption became so, they shared the common fate, with this only difference, that they were rejected with greater scorn and contempt on account of their former dignity, as was found in one notorious instance; but on the other hand, among all the parts that were serviceable to the constitution on this occasion, there was not one more so, than a certain one whose name indeed is not openly known, but whose good offices and usefulness are too great ever to be forgotten; for it by its nice diligence and skill selected out things of the most noble and exquisite nature, by infusing and dispersing them to enliven and invigorate the whole body, which how effectually they did, our bold projector sadly experienced. For finding all his endeavours to pass his ware upon them, disappointed, he withdrew; but his patron on the other side being informed of what had passed, fell into a most terrible passion, and threatened, they say, I know not what, of making to swallow and ramming down throats; but while they were in deep conference together, methought all on a sudden a trap-door dropped, and down fell our projector; this unexpected accident did on many accounts not a little alarm the throne, and gave it but too great occasion to reflect a little on what had been doing, as what a mean ordinary fellow it had intrusted with the care of an affair of so great consequence that though their neighbours' refusal might possibly have put him to such straits as might be the great occasion of this disgrace, yet that very refusal could not be so universal and resolute without some reason, which could arise from nothing else but the unseasonableness or unworthiness of his offers, or both, and he, consequently, must deserve as much to suffer as they did; not for the better information, therefore in these surmises some of the neighbours were consulted, who confirming them, things seemed to bear a good face, and be in a very fair way of clearing up. When I awoke, I cannot say whether more pleased at the present posture of affairs, when I recollected how indifferent an one they had lately been in, or anxious when upon considering that they were not yet firm and settled, I was led to reflect in general on the uncertainty of events, and in particular, on the small reason the persons in hand can have to promise themselves prosperous ones, especially when they are depending in that part of the world.
Dublin, printed in the year 1724-5.
To THE RIGHT HONOURABLE ———
I fear your lordship in your wonted zeal for the interest of your country will think this paper very unseasonable; but I am very confident not more than one man in this kingdom will be of your lordship's judgment.
[Footnote 1: The two following severe letters are directly addressed to Lord Chief Justice Whitshed, and were generally circulated. They probably underwent Swift's correction, though they have too much of a legal cast to have been written by the Dean himself.... They were, perhaps, composed by Mr. Robert Lindsay, distinguished by Swift in his letter to Lord Midleton, as an eminent lawyer, as well as a man of virtue and learning, whose legal advice he used during the whole controversy. [S.]
The present letters are taken from copies of the original broadsides in the South Kensington collection. [T.S.]]
In matters of law your opinion has from our first acquaintance entirely guided me, and the things you have assured me I might depend upon as law, have few of them escaped my memory, though I have had but little conversation with you since you first appeared in Parliament and moved the House to resolve, That it is the indispensable duty of the judges of this kingdom to go through their circuits; nor have I had any since you fell sick and was made solicitor-general.
I have often heard your lordship affirm, and therefore I do affirm it, That the great ends for which grand juries were instituted, were the support of the government, the safety of every man's life and fortune, it being necessary some should be trusted to inquire after all disturbers of the peace, that they might be prosecuted and brought to condign punishment; and it is no less needful for every man's quiet and safety, that the trust of such inquisitions should be put into the hands of persons of understanding and integrity, that will suffer no man to be falsely accused or defamed; nor the lives of any to be put in jeopardy, by the malicious conspiracies of great or small, or the perjuries of any profligate wretches.
So material a part of our constitution are grand juries, so much does the security of every subject depend upon them, that though anciently the sheriff was by express law, chosen annually by the people of the county, and trusted with the power of the county, yet the law left not the election of grand juries to the will of the sheriff, but has described their qualifications, which if they have, and the sheriff return them, no man, nay no judge, can object to their being sworn, much less may they to their serving when sworn: And to prevent the discretionary power (a new-fashioned term) of these judges over juries, you used to say was made the statute of the 11th of Hen. 4.
Pardon me my lord if I venture to affirm, That a dissolving power is a breach of that law, or at least an evasion, as every citizen in Dublin in Sir Constantine Phipps's time perfectly understood, that disapproving the aldermen lawfully returned to the Privy-council was in effect assuming the power of choosing and returning——But your lordship and I know dissolving and disapproving are different terms.
I always understood from your Lordship the trust and power of grand juries is or ought to be accounted amongst the greatest and of most concern, next to the legislative: The honour, reputations, fortunes and lives of every man being subject to their censure; the kings of England have an undoubted power of dissolving parliaments, but dissolving 'till one was returned to their or their ministers' liking, has never been thought very righteous, and Heaven be praised never very successful.
I am entirely of your lordship's opinion, the oath of a grand juryman is not always sufficiently considered by the jurors, which is as follows.
"You shall diligently enquire, and true presentment make of all such articles, matters and things as shall be given you in charge; And of all other matters and things as shall come to your own knowledge, touching this present service. The King's counsel your fellows' and your own you shall keep secret," &c.—And from some other men's behaviour, I fear oaths are not always as sacredly observed as they ought to be: "The King's counsel, your fellows' and your own you shall keep secret"—Though our grandmothers my lord might have thought there was a dispensing power in the Pope, you and I profess no power upon earth can dispense with this oath, so that to force a man to discover the counsel he is sworn to keep, is to force him into direct perjury.
Suppose upon information taken before your Lordship of a rape committed, a bill of indictment were sent to a grand jury, and the grand jury return ignoramus on it, application is made to the Court to recommend it to them to reconsider it, and they return as before ignoramus—Suppose a judge with more than decent passion should ask them their reasons (which is their counsel) for so doing, nay should be so particular as to demand of them whether they thought the woman a whore. Must not all the world conclude somebody had forgot the oath of a grand juryman? Yes sure, or his own, or worse.—But suppose they should ask a juror a question might criminate himself? My Lord, you know I put not bare possibilities, it is generally believed these things have been done within an oak of this town—And if I am rightly informed, the restraint a juror is under by his oath, is so well understood, that a certain person desired the clerk of the Crown to change the form of it by adding this exception: "unless by leave or order of the Court."
These things, my Lord, would seem strange in Westminster-hall, and would be severely noted in St. Stephen's Chapel. The honour of the Crown would be thought a very false as well as weak plea for such proceedings there, as indeed it is an infamous one everywhere, for 'tis a scandal upon a king, if he is represented in a court of justice, as if he were partially concerned or rather inclined to desire, that a party should be found guilty, than that he should be declared innocent.
The King's interest and honour is more concerned in the protection of the innocent, than in the punishment of the guilty, as in all the immediate actions of his Majesty we find that maxim pursued, a maxim can never run a prince into excesses. We do not only find those princes represented in history under odious characters, who have basely betrayed the innocent, but such as by their spies and informers were too inquisitive after the guilty, whereas none was ever blamed for clemency, or for being too gentle interpreters of the law. Though Trajan was an excellent prince, endowed with all heroical virtues; yet the most eloquent writers, and his best friends, found nothing more to be praised in his government, than that in his time, all men might think what they pleased, and every man speak what he thought, this I say, that if any amongst us by violent measures, and a dictatorial behaviour have raised jealousies in the minds of His Majesty's faithful subjects, the blame may lie at their door.
I know it has been said for His Majesty's service, grand juries may be forced to discover their counsels: But you will confess a king can do nothing against law, nor will any honest man judge that for his service, which is not warranted by law. If a constant uninterrupted usage, can give the force of a law, then the grand jurymen are bound by law, as well as by their oaths, to keep the King's, their fellows' and their own counsel secret. Bracton and Britton in their several generations bear witness, that it was then practised; and greater proof of it needs not be sought, than the disputes that appear by the law-books to have been amongst the ancient lawyers, Whether it was treason or felony for a grand juryman to discover their counsels—The trust of grand juries was in those days thought so sacred, and their secrecy of so great concern to the kingdom, that whosoever should break their oaths, was by all thought worthy to die, only some would have them suffer as traitors, others as felons.
If a king's commands should come to the judges of a court of justice or to a jury, desiring them to vary from the direction of the law, (which it is criminal to say, and no man ought to be believed therein) they are bound by their oaths not to regard them. The statute of 2 of E. 3. 8. and 20 E. 3. I. are express; and the substance of these and other statutes is inserted into the oaths taken by every judge; and if they be under the most solemn and sacred tie in the execution of justice to hold for nothing the commands of the King under the great seal, then surely political views and schemes, the pleasure or displeasure of a minister, in the like case ought to be less than nothing.
It is a strange doctrine that men must sacrifice the law to secure their properties, if the law is to be fashioned for every occasion, if grand jurymen contrary to their oaths must discover their fellows' and their own counsels, and betray the trust the law has reposed in them, if they must subject the reasons of their verdicts to the censure of the judges, whom the law did never design to trust with the liberty, property, or good name of their fellow-subjects. No man can say he has any security for his life or fortune, and they who do not themselves, may however see their best friends and nearest relations suffer the utmost violences and oppressions.
Which leads me to say a few words of the petit jury, not forgetting Mr. Walters. I am assured by an eminent lawyer, that the power and office of a petit jury is judicial, that they only are the judges from whose sentence the indicted are to expect life or death. Upon their integrity and understanding the lives of all that are brought in judgment do ultimately depend; from their verdict there lies no appeal, by finding guilty or not guilty. They do complicately resolve both law and fact. As it hath been the law, so it hath always been the custom and practice of these juries (except as before) upon all general issues, pleaded in cases civil as well as criminal, to judge both of the law and fact. So it is said in the report of the Lord Chief Justice Vaughan in Bushell's case, That these juries determine the law in all matters where issue is joined and tried, in the principal case whether the issue be about trespass or debt, or disseizin in assizes, or a tort or any such like, unless they should please to give a special verdict with an implicate faith in the judgment of the Court, to which none can oblige them against their wills.
It is certain we may hope to see the trust of a grand juryman best discharged when gentlemen of the best fortunes and understandings attend that service, but it is as certain we must never expect to see such men on juries, if for differing with a judge in opinion, when they only are the lawful judges, they are liable to be treated like villains, like perjurers, and enemies to their king and country; I say my lord such behaviour to juries will make all gentlemen avoid that duty, and instead of men of interest, of reputation and abilities, our lives, our fortunes, and our reputations must depend upon the basest and meanest of the people.
I know it is commonly said, boni judicis est ampliare juridictionem. But I take that to be better advice which was given by the Lord Chancellor Bacon upon swearing a judge; That he would take care to contain the jurisdiction of the court within the ancient mere-stones without removing the mark.
I intend to pay my respects to your lordship once every month 'till the meeting of the Parliament, when our betters may consider of these matters, and therefore will not trouble you with any more on this subject at present. But conclude, most heartily praying——
That from depending upon the will of a judge, who may be corrupted or swayed by his own passions, interests, or the impulse of such as support him and may advance him to greater honours, the God of mercy and of justice deliver this nation.
My Lord,
I think the best service men employed by His Majesty can do for him and this country, is to shew such prudence and temper in their behaviours as may convince every man they are not intrusted with any power but what is necessary and will always be exercised for the advantage and security of His Majesty's subjects.
For my own part I hold it the duty of every man though he has not the honour of serving His Majesty in public employment, not only, not to misrepresent the actions of his servants, but in matters of small concern, to wink at their follies and mistakes; I know the Jacobites and Papists our irreconcilable enemies are too watchful to lay hold of every occasion to misrepresent His Majesty and turn the faults of ambitious and self-interested servants upon the best of kings.
I hear some men say, that in my last to your lordship, there appears more of the satirist, than becomes a man engaged merely in the defence of liberty and justice; But I am satisfied I can with charity affirm, they are either such as have no knowledge of the several steps [that] have been taken to bring this poor country into ruin and disgrace, or they are of the number of those who have had a share in the actings and contrivances against it; for my lord, he must rather be an insensible stoic than an angry cynic, who can survey the measures of some men without horror and indignation—To see men act as if they had never taken an oath of fidelity to their king, whose interest is inseparable from that of his people, but had sworn to support the ruinous projects of abandoned men (of whatever faction) must rouse the most lethargic, if honest, soul.
I who have always professed myself a Whig do confess it has mine.
I beg leave in this place to explain what I intended in my last by the words, "unless by leave or order of the court," lest whilst I plead for justice I should do an injury to your lordship.
I do declare I never heard that story of your lordship, and I hope no man did believe it of you. My intention was by that hint to remember you of Judge U—p—n and a certain assizes held at Wicklow, as I believe your lordship understood it, and as I now desire all the world may.
Having learned from your lordship and other lawyers of undoubted abilities, that no judge ought by threats or circumvention to make a grand-juryman discover the king's counsel his fellows' or his own I should not at present say anything in support of that position. But that I find a most ridiculous and false explanation seem to mislead some men in that point: Say they, by the word counsel is understood, such bills as are before the grand jury and the evidence the prosecutors for the crown have to support the charge against the subject—Lest that being known the party indictable may fly from justice, or he may procure false witnesses to discredit the evidence for the king, or he may by bribes and other indirect measures take off the witnesses for the crown.
I confess I take that to be the meaning of the word counsel, but I am certain that is not all that is meant by it, that is what must be understood when it is called the king's counsel, id est, the counsel or reasons for which the king by his servants, his attorney-general or coroner, has drawn and sent to the grand jury a charge against a subject.
But the counsel of a juror is a different thing, it is the evidence, the motives and reasons that induce him or his fellow-jurors to say billa vera or ignoramus, and the opinion he or they happen to be of when the question is put by the foreman for finding or not finding: This counsel every man is sworn to keep secret, that so their opinion and advice may not be of prejudice to them hereafter, That as they are sworn to act without favour or affection, so may they also act without FEAR. Whereas, were it otherwise the spirit of revenge is so universal, there are but few cases wherein a juror could act with safety to himself; either the prosecuted, as where the bill is found, or the prosecutor, where it is returned ignoramus, may contrive to defame the jurors who differ from them in opinion: As I am told has happened to some very honest citizens who are represented to be Jacobites since their opinions were know to be against ——. And sometimes revenge or ambition may prompt men to carry it further, as in the case of Mr. Wilmer, who in King Charles 2d's time was very severely handled for being one of an ignoramus jury.—— 'Tis not necessary to say whom he disobliged by being so.——But if I remember right his case was this.
He was a merchant, (and as I said, an ignoramus juryman) had covenanted with a servant boy to serve him in the West Indies, and accordingly sent him beyond sea: Upon suggestion and affidavit by which any person might have it, a writ de homine replegiando was granted against Mr. Wilmer; the sheriffs would have returned on the writ the agreement and the boy's consent, but the court (in the case of this Wilmer) Easter 34, Cha. 2. [i.e., Charles the Second] in B.R. ruled they must return replegiari fecimus or elongavit, that is, they had replevy'd the boy, or that Wilmer had carried him away where they could not find him, in which last case Mr. Wilmer, though an innocent person must have gone to gaol until he brought the boy into court or he must have been outlawed—Shower's Rep. 2 Part.
I do not say this that I think the same thing will be practised again, or anything like it, though I know that very homely proverb, "More ways of killing a dog than hanging him."—But I instance it to shew, the counsels of every grand juryman should be kept secret, that he may act freely and without apprehensions of resentment from the prosecuted or prosecutor.
My resolution when I writ to you last, was, not to have said anything in this concerning the power of dissolving or dispensing, but as I have been forced to say something of the dispensing, for the same reason I must of the dissolving power.—A power undoubtedly in effect including that of returning, which makes me wish two men of great interest in this kingdom, differing in every other thing, had not undertaken to defend it, or they had better reasons for it than I have yet heard.
'Tis said, "This power is in the court as a right of resistance is in the people, as the people have a power superior to the prerogative of the prince, though no written or express law for it; so of necessity though no statute directs it, and it may seem to overturn the greatest security men have for their liberties, yet the court has a power of dissolving grand juries, if they refuse to find or present as the court shall direct."
Pray let us consider how well this concludes.
The people may do anything in defence of their lives, their religion and liberties, and consequently resistance is lawful, therefore an inferior court a bene placito judge may——Monstrous absurdity.
Another, I am sorry I can't say more modest argument to support it is this.—
"Considering," say they, "grand juries, it is but reasonable a discretionary power of dissolving them should be lodged in the judges."
By the words "considering grand juries," I must understand considering their understandings, their fortunes or their integrity, for from a want of one or more of those qualifications must arise the reason of such a discretionary power in the judges.
Though I shall not urge it as far as I could, I will venture to say the argument is at least as strong the other way—considering the judges.—
First as to their understandings, it must be confessed the benches are infinitely superior to the lower professors of the law: Yet surely it can't give offence to say the gentlemen of the several counties have understandings sufficient to discharge the duty of grand jurymen—If want of fortune be an objection to grand jurymen, a pari ratione, it is an objection to some other men.—Besides, that the fact is not true, for in their circuits, no judge goes into any county where he does not meet at least a dozen gentlemen returned upon every grand jury, every one of whom have better estates than he himself has—And these not during pleasure, which last consideration, saves me the trouble of shewing the weakness of the objection in the third qualification.
"Ay. But it was a necessary expedient to keep out Wood's brass."
Are the properties of the commons of this kingdom better secured by the knight-errantry of that day? In the name of common sense, what are we to believe? Has the undaunted spirit, the tremendous voice of ——— frightened Wood and his accomplices from any further attempts? Or rather has not the ready compliance of ——— encouraged them to further trials? The officers and attendants of his court may tremble when he frowns, but who else regards it more than they do one of Wood's farthings.
"There is no comparison," says another, "between the affair of Sir W. Scroggs and this of ———. Sir W. discharged a grand jury because they were about to present the Duke of York for being a Papist, but ——— discharged the grand jury for not presenting a paper he recommended to them to present as scandalous, (and in which, I say, he was a party reflected on.)"
I agree there is a mighty difference, but whom does it make for?
A grand jury of a hundred (part of a county) take upon them to present a no less considerable person than the king's brother and heir presumptive of the crown, the chief-justice thinks this a matter of too much moment for men of such sort to meddle in, but a matter more proper for the consideration of Parliament: I would not be understood to condemn the jury; I think they acted as became honest Englishmen and lovers of their country; But I say if judges could in any case be allowed to proceed by rules of policy, surely here was a sufficient excuse. However the commons impeached him.
The determinations of ignorant or wicked judges as they are precedents of little weight, so they are but of little danger, and therefore it will become the commons at all times to animadvert most carefully upon the actions of the most knowing men in that profession.
I say, my lord, at all times, because I hear former merit is pleaded to screen this action from any inquiry.
I am sensible much is due to the man who has always preferred the public interest to his private advantages as ———— has done. When a man has signalized himself, when he has suffered for that principle, he deserves universal respect. Yet men should act agreeably to the motive of that respect, and not ruin the liberty of their country to shew their gratitude, and so, my lord, where a man has the least pretence to that character, I think 'tis best to pass over small offences, but never such as will entail danger and dishonour upon us and our posterity.
The Romans, my lord, when a question was in the senate, whether they should ransom fifteen thousand citizens who had merited much by their former victories, but losing one battle were taken prisoners; were determined by the advice of that noble Roman Attilius Regulus not to redeem them as men unworthy their further care, though probably it was their misfortunes not their faults lost that day.