my judgement, they firmly establish that my three propofitions above fet forth were not without book. This will probably appear to yourselves; but I fhall fay a word or two in my next, by way of remark upon these ftatutes.-I have the honour to be, &c. AN OLD FREEHOLDER.

LETTER III.

Gentlemen,

Take the liberty now to offer fome few observations upon the ftatutes mentioned in my laft, as applicable to the propofitions which I maintain.

First, it is plain, that these laws intend every freeholder to have an eftate. He was excufed from perfonal attendance when that eftate was but fmall. No provifion is made for excufing freehold ers who had nominal or fictitious eftates. Freeholders of that kind did not exist in former times. Our forefathers were too high fpirited to admit of fuch partners. They were all men of property. Freeholders were excufed from perfonal at tendance, if their eftates were under 20 1. Scots; and afterwards, if they were un der 100 merks of the new extent; a valuation by which the cafualties due to the fuperior were afcertained, as the old extent was a valuation by which the pu. blic taxes were to be laid on. Each of thefe extents might at firft be nearly equal to the real rent; but they were far under it at the times I am speaking of.

After reprefentation was introduced, the qualification of electors by the act of 1661, formerly mentioned, is declared to be a forty-fhilling land, holding of the King's Majefty in capite; or, in cafe it was upon lands which held of the King, in place of the fuppreffed Prelates, thefe new freeholders were to have a yearly free rent, after deduction of the feu-duties, of 1000l. Scots, or 831. 6 s. 8 d. Sterling.

The reafon, in the last of these cafes, for afcertaining the qualification by the real rent, was, because church-lands had no old extent. There had never been a valuation of thefe lands in that manner. The tax was levied upon the lands of churchmen, according to a tax-roll peculiar to themselves. And it is very plain to me, that 831. 6 s. 8 d. at that time, muft have been confidered as the average real rent of a forty-thilling land of old extent.

This act, and all the preceding acts, clearly intend, that the freeholders were to have a beneficial intereft in the lands;

and this is founded on good fenfe and found policy.

Sir William Blackftone, a learned and conftitutional man, as well as a great lawyer, fays, "The true reafon of requiring any qualification with regard to property in voters, is to exclude fuch perfons as are in fo mean a fituation, that they are efteemed to have no will their own. If thefe perfons had votes, they would be tempted to difpofe of them under fome undue influence or other. This would give a great and artful, or a wealthy man, a larger share in elections than is confiftent with general liberty. If it were probable that every man would give his vote freely, and without infiuence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, fhould have a vote in electing their delegates, to whofe charge is committed the difpofal of his property, his liberty, and his life. But fince that can hardly be expected in perfons of indigent fortunes, or fuch as are under the immediate dominion of others, all popular ftates have been obliged to establish certain qualifications, whereby fome, who are fufpected to have no will of their own, are excluded from voting, in order to fet other individuals, whofe will may be fuppofed independent, more thoroughly upon a level with each other."

He adds, in another place, "That this freehold must be forty fhillings an. nual value; because that fum would, in the time of Henry VI. with proper induftry, furnish all the neceffaries of life, and render the freeholder, if he pleased, an independent man. For Bishop Fleetwood, in his Chronicon Pretiofum, written at the beginning of the prefent century, has fully proved forty fhillings in the reign of Henry VI. to have been equal to 12 l. per annum in the reign of Queen Anne; and as the value of money is pretty confiderably lower fince the Bifhop wrote, I think we may fairly conclude, from this and other circumftances, that what was equivalent to 121. in his days, is equivalent to 201. at prefent."

This is the property-qualification of electors in England. The qualification of the elected is much higher. There, every knight of a thire must have a clear eftate of 600l. per annum, and every citizen and burgefs to the value of 3001. per annum. All this refts upon the principle of independency.

With us, in Scotland, the qualification of electors and of the elected is the very fame. Our ancestors, it would feem, in 1661, faw no reafon for making any difference; and thought 831. 6 s. 8d. a high enough qualification in land, even for their commiffioners to parlia

ment.

Such being the principle of our law in 1661, that all electors of commiffioners to parliament should have a real property to a certain amount, I could never bring myself to think, that the act of 1681 did truly intend totally to alter our bw in this refpect, and to give a right of voting to a naked fuperior, who had no intereft in the land in the way of rent; for a blench, or fmall duty, is not to be called a beneficial intereft; and the cafualties are but cafualties, and may be taxed to a trifle. I am the more confirmed in this opinion, from confidering the words of that act, which exprefs no such intention, and intimates,that the freeholder must be infeft in property or fupe. riority, and in poffeffion. What fignified his being in poffeffion, if the rent he poffeffed was not worth the collecting? I believe the truth is, that, in 1681, many of the greateft properties belonging to the val fals of fubjects fuperior were held ward, where the emoluments of a bare fuperiority were both certain and substantial; and there were but few superiors of blench boldings who had not other great pro. perty eftates in the fame counties; fo that no evil confequences were forefeen to flow from fuperiority-qualifications: Nevertheless, upon these unfortunate words, property or fuperiority, which were continued in our after election-laws, has been grafted the whole doctrine of nominal qualifications, which lawyers have improved into thofe liferents and wadfets of fuperiority, and have split and multiplied in fuch a manner, that our ancient conftitution is quite overthrown, and the grievance has now become insupportable.

My next propofition was, That no freeholder, however great his property, fhould have more votes than one.

As the contrary propofition is the affirmative, I might call upon the nominals and their abettors to prove it. I never heard of fuch a thing being main. tained to be a principle of our conftitution, directly or indirectly, till the device was fallen upon of fplitting fuperiorities into thefe two-penny liferents. But,

Gentlemen, I shall submit to your plain fenfe and understandings, whether the round-about way taken to create these freeholds, at fo much expence, and introducing fuch perplexity into our landrights, is not itfelf a demonftration that they durft not fhew a plain face, but were under the neceflity of coming under a mask.

I fhall not, however, fhelter myself under the defence of not being obliged to prove a negative: I afk, What was the meaning of the act in the 12th of Queen Anne, cap. 6. for obliging all electors to take an oath, declaring, that the eftate upon which the freeholder claims to vote is not in truft? Is not the reafon for introducing that oath affigned in the act itself, that it was to prevent this very abuse? When a new device was found out for evading the intendment of that act, by creating nominal and fictitious rights, which were not trufts, i. e. not qualified by written declarations of truft, for they were not worth putting under truft, the legislature, to correct that evil, by the act of the 7th George II. appointed a new oath to be taken, declaring that the title was not nominal and fictitions. Cafuifts, indeed, have fince found ont a method of evading that oath alfo. They have difcovered, that a penny is as really a penny, as a pound is a pound, or as a thousand pounds are a thousand pounds; and that a title-deed is not fictitious, if it be truly fubfcribed by the granter, and executed in due form.

In logic and metaphyfics, of which I do not profefs myself a judge, thefe propofitions may be what are called trueifms, and many very honeft men have been perfuaded to take them in that light; but other men, equally honeft, taking them up in common fenfe, and in the plain underftanding of mankind, cannot help thinking they are fophifms; and it cannot be difputed, that they are the evafions of the intendment of these ftatutes, which were exprefsly levelled against the multiplication of votes upon one and the fame eftate. This is all I undertook to prove, namely, that they were disagreeable to our conftitution; and I have proved it, if it is admitted that our conftitution is to be learned from our statute-book.

I fhall go a little farther in my next letter.I have the honour to be, &c. An OLD FREEHOLDER. [To be continued.]

Trial of Dr Magennis for the Murder of Mr Hardy.

Friday, Jan. 17. came on the trial of Daniel Magennis, M. D. for the murder of Mr John Hardy, hofier and batter, in Newgate-street. Mr Fielding was counsel for the profecution. In his animadverfions on the nature of the cafe, he forgot not that the prifoner was a gentleman, and that, in his then wretched fituation, it would ill become any man, who had the feelings of a gentleman, to infult his misfortune, or aggravate, by unkind or harth expreffions, the diftrefs of his mind; inftead, therefore, of calling him the prifoner, he called him all along the unfortunate gentleman at the bar: He nevertheless omitted nothing that could tend to the conviction of the Doctor, if it fhould appear in evidence that he ought to be convicted; but, at the fame time, he implored and befought the jury to diveft themfelves of prejudice, and not fuffer themfelves to be influenced in their verdict by any thing but the evidence. After having ftated the particulars of the cafe, he called the witneffes. Mary Ducrow was the firft witnefs examined. This young woman was fervant to Mr Hardy at the time he was killed.-She faid, that Mr Magennis came home at about half after five o'clock in the evening of the 28th of September; that the lighted him up ftairs to his apartment, the back room on the fecond floor: that the returned down stairs to a little back parlour, where her mafter, her miftefs, and herfelf, were drinking tea, when the Doctor came home; that he had not been long there, when some water fell upon the fky light, through which this little parlour ufually received light; and that the water had come from the Doctor's window. Her mafter, upon this, immediately took the candle in his hand, and went up ftairs to reprove (as he faid) the prisoner for having thrown the water from his chamber-pot on the fky-light; the witnefs heard fome words pafs between them, but could not diftinguish them plainly; her master was returning down stairs, when the prifoner said he was a thief, and had robbed him; upon which the deceased turned back, and, going up ftairs again, faid, "Do you call me a thief? I will take you before a juftice of peace to-morrow.' Immediately after this, the witness heard the candlestick

fall, and fomething rolled down ftairs. She ran up, with another girl who was in the house, and found her master lying upon the landing-place, a flight or two of ftairs lower down than the prifoner's apartment: She asked him what was the matter, but received no answer; and the body having been carried into the kitchen, fhe perceived that it bled; and Mrs Hardy having opened his waistcoat, and tore open his thirt, a wound was found under his left breaft, from which the blood poured very faft; and her ma fter, fetching a deep figh, expired.-She said, that while fhe was attending thus upon her mafter, the heard the prifoner cry out, Murder! and fay, that a man was murdered.-Meff. Sylvefter and Erfkine were counfel for the prifoner. On her cross-examination, the fervant said, that fhe did not hear the prifoner come down ftairs from his apartment; but repeated that her mafter went up a fecond time to him: She could not recollect whereabouts the candle and candlestick lay when they were found.

Adey Lancashire, fervant to a lodger in the house of the deceased, was the next witnefs called; and fhe corrobora. ted all that had been faid by Mary Ducrow, except in two circumftances; one was, that the did not understand, when Dr Magennis cried out murder, he had faid that a man was murdered, but that he himself was in danger of being murdered by the deceased. The other circumftance was, that when Mr Hardy went up the second time to the Doctor's door, on being called a thief, she heard a noise. Judge Willes (who was the trying judge) afked her, if noife was the word the made ufe of when he was giving her evidence before the coroner. His Lordship said, that on that occafion fhe had depofed, that he had heard a buftle; (the judge had her depofition before him in writing); the girl faid, the believed fhe might have uted the word bustle. The judge asked her, if the understood by the word buftle, a fruggle; the replied, that there might have been a ftruggle.

The furgeon who opened the body of the deceased, appeared, and proved, that the knife with which the wound had been given, having paffed through the right ventricle of the heart, had occa fioned Mr Hardy's death. He faid, that the prifoner having been brought down fairs, while he (the furgeon) was in

Specting

prefence of a third perfon, it was impoffible for the prifoner to prove any more as to the fact. All the other witneffes were examined to his character; and fo amiable, fo enviable a character was fcarcely ever given to any man, or by fo refpectable a set of men.

Mr Daniel Shiel (a Weft-India merchant) was the firft witnefs called to his character. He faid, he had known the Doctor for twelve years, the greatest part of the time in Jamaica; and that he had always found him moft fingularly humane; tender, and kind to thofe who flood in need of his fervices; and that he never knew a man of more gentleness of manners, or beneficence of difpofition. The counfel for the prifoner, in order to fhew that he entertained no malice to the deceafed previous to the melancholy affair, asked Mr Shiel, if Dr Magennis had ever fpoken to him of Mr Hardy. He faid that he had told him Mr Hardy was an honeft, ingenious, induftrious young man; that he had got a patent from his Majefty for a curious invention; but that unfortunately he had not met with that encouragement which he deferved; and therefore he pressed him (the witnefs) to purchase from Mr Hardy fuch goods in his way as Mr Shiel ufed to fend to the Weft Indies. The Doctor he faid had urged his request in favour of Mr Hardy more than once or twice either.

Lord Viscount Barrington faid, that he had known Dr Magennis for many years, and during the whole time he had found him a meek, harmless, innocent, inoffenfive man. He sometimes heard him complain, that he was neglected by men in power, but he always mixed fo much mildness, temper, and moderation with his complaints, that he clearly fhewed he felt not an atom of animofity against thofe who were the objects: he had ever found him an advocate for humanity, and a man without gall or refentment.

The Earl of Effingham faid, he had known the Doctor long, as a man of letters and an author: that he had fhewn him fome tracts written by himself, (the prifoner), in order that he might have his opinion of them, previous to the publication: that most of these tracts were in defence of the rights of humanity, for which he had always found him a zealous advocate; and from the knowledge he had of him, believed him incapable of wilfully or maliciously doing an injury to

any man; for he looked upon him as the pattern of meeknefs, and the most inof fenfive man alive.

Maj.-Gen. Murray (uncle to the Duke of Athol) said, he had known Dr Magennis ever lince the year 1777: that on his way home from America, he had seen the Doctor on fhip board, who was introduced to him by Maj. Ferguson, fince killed in America. The Major had known the prifoner ten years before, and recommended him as a perfon of the greatest tenderness and humanity. The General declared, that he himself had seen singular proofs of his humanity. He remembered him to give away to the fick and wounded foldiers under his care, the fresh provifions that he had for his own table; and he knew him to have lain on the boards in order to accommodate his pa tients with his bed. In a word, he was convinced that he was a man of the greateft humanity, and uncommon gentleness of disposition.

Mr Edmund Burke had known him for many years, and had every reafon to believe him one of the beft-natured men in the world. He could not speak of his knowledge as a phyfician, because he was no judge of it; but he had heard from feveral phyficians of the firft eminence, that it was very confiderable. He had never heard him speak harshly of men in power, though he knew that, to use the fofteft expreffion, he had been very ill treated; and he had never felt himself more affected than at seeing so worthy a man in so melancholy a fituation.

Maj. Fleming was acquainted with the prifoner for seventeen years, during which time he remarked in him the innocence and fimplicity of a child, and the greatest fhare of philanthropy and benevolence that he ever difcovered in the breaft of man. He had himself been a witness to many acts of his humanity. About nine months ago he was upon Dublin duty, the Doctor was there at the time, and in circumftances not the moft eafy : he was forry to fee him fo; and in order to have it in his power to give him fome money, without offending his delicacy, he requested he would attend a poor patient, and he gave him fees regularly, though his vifits at the time were not wanted, as the patient was attended by the furgeon of the regiment; but, to his great furprife, he found that he had given away to the patient and his family more than half of what he had received from him in

fees.