Abbildungen der Seite
PDF
EPUB

In that where the monarch should deem that the proposed law would prove injurious to the interests of the nation ; and in that where, deceived by his ministers, he should resist laws that were contrary to their private views.

Now, in both the one and the other of these suppositions, the king, or his ministers, being deprived of the capability of obstructing the law by the peaceful means of a legal veto, would they not have recourse to an illegal and violent resistance, according as they considered the law to be of more or less importance ? Can it be doubted that they would prepare their means long before hand? For it is always easy to form a notion of the degree of attachment which the legislature will entertain for its law. It might happen, then, that the legislature might find itself chained down, at the very moment marked by the constitution for rendering the royal veto ineffectual; whereas, if that veto remains always in force, illegal and violent resistance becoming useless to the prince, he can no longer employ it, without revolting, in sight of the whole nation, against the constitution; a circumstance which soon renders such resistance extremely dangerous for the king himself, and particularly for his ministers. Observe that this danger is no longer the same, when the prince hath only opposed a law to which he hath not consented.

In this latter case, as violent and illegal resistance may always be supported by plausible pretexts, the revolt of the executive power against the constitution always finds partisans, particularly when it is the measure of the monarch. With what facility did not Sweden return into the arms of despotism, by desiring that her king, although hereditary, should be only the passive and blind instrument of the will of the senate!

Let us not, then, arm the king against the legislative power, by letting him perceive any moment whatsoever when his consent might be dispensed with, and when, consequently, he would be no more than a blind and forced executor. Let us be convinced, that the nation will find more safety and tranquillity in laws expressly consented to by its ruler, than in resolutions in which he had no share, and which were repugnant to that power wherewith, in every state of the case, he should be invested. Let us be convinced, that, from the moment we have placed the crown in a particular family, from the moment we have made it the patrimony of the eldest sons, it becomes imprudent to alarm them, by subjecting them to legislative power, the force of which remains in their hands, and where, nevertheless, their opinion might be contemned. This contempt at length attaches to the person; and the depositary of all the force of the French empire cannot be contemned, without the greatest danger.

By a consequence of these considerations, which are warranted by the human heart, and by experience, the king ought to have the power of acting upon the national assembly, by sending it back to a reelection. This kind of action is necessary, in order to leave the king a legal and peaceful method of car. rying through, in his turn, those laws which he may deem beneficial to the nation, and which the national assembly might be inclined to obstruct: nothing would be less dangerous; for the king must be perfectly sure of the disposition of the nation, before, in order to pass a law, he hath recourse to an election of new members : and when the nation and the king unite in desiring a law, the resistance of the legislature can be ascribed but to two causes ; either the corruption of its members, and in that case their removal is a benefit; or a doubt with respect to the publick opinion; and then the best mode of coming to a knowledge of it is, unquestionably, an election of new members.

I sum up all, gentlemen, in one single word : annuality of the National Assembly; annuality of the army; annuality of the taxes; responsibility of the ministers; and the royal sanction, without any written restriction, but completely limited in fact, will be the palladium of national freedom, and the most valuable exercise of the liberty of the people.

OF THE HONOURABLE THOMAS ERSKINE, ON THE TRIAL OF JOHN STOCKDALE, FOR a LIBEL on the

HOUSE OF COMMONS. TRIED BEFORE THE RIGHT HONOURABLE LLOYD KENYON, CHIEF JUSTICE OF ENGLAND, DECEMBER 9, 1789.

THE pamphlet that gave rise to the trial in which this admirable speech was delivered, was written by the reverend Mr. Logan, who is very advantageously known to the lovers of letters by the variety, the depth, and brilliancy of his works.

Employed in conducting the historical department of the Annual Register, his studies were directed particularly to the affairs of India, which at that time, owing to the impeachment of Warren Hastings, were a subject of lively and general concern throughout the British empire. These investigations, having satisfied his mind of the innocence of Mr. Hastings, and that he was wantonly persecuted by the virulence of party spirit, he voluntarily, and without any venal motive, prepared and gave to the press a round and complete defence of him, in which, with the dexterity of a special pleader he scrutinized, and with the plausibility of an eloquent advocate confuted, every charge on which this great and good man was arraigned,

Not long after the pamphlet had been in circulation, Mr, Fox, one of the managers, took occasion to call the attention of the house of commons to certain parts of it which, he alleged, reflected on the purity of the motives of those who had instigated the impeachment, and on the conduct of the house for sanctioning the measures. He then made the ordinary motion to direct the attorney general to prosecute the author and publishers of the pamphlet, for a libel on the house of commons.

The publisher, Stockdale, was alone tried. He was acquitted. This decision may be considered as among the most signal triumphs of the liberty of the press, and not the least striking illustration of the importance of trial by jury, to personal security.

[blocks in formation]

SPEECH, &C.

GENTLEMEN OF THE JURY,

MR.'STOCKDALE, who is brought as a criminal before you for the publication of this book, has, by employing me as his advocate, reposed what must appear to many an extraordinary degree of confidence; since, although he well knows that I am personally connected in friendship with most of those, whose conduct and opinions are principally arraigned by its author, he nevertheless commits to my hands his defence and justification,

A trust apparently so delicate and singular, vanity is but too apt to whisper an application of to some fancied merit of one's own; but it is proper, for the honour of the English bar, that the world should know such things happen to all of us daily, and of course; and that the defendant, without any sort of knowledge of me, or any confidence that was personal, was only not afraid to follow up an accidental retainer, from the knowledge he has of the general character of the profession.

Happy indeed is it for this country, that whatever interested divisions may characterize other places, of which I may have occasion to speak to day, however the counsels of the highest departments of the state may be occasionally distracted by personal considerations, they never enter these walls to disturb the administration of justice: Whatever may be our publick principles, or the private habits of our lives, they never cast even a shade across the path of our professional duties.

If this be the characteristick even of the bar of an English court of justice, what sacred impartiality may not every man expect from its jurors and its bench?

As from the indulgence which the court was yesterday pleased to give to my indisposition, this information was not proceeded on when you were attending to try it, it is probable you were not altogether inat

A

tentive to what passed on the trial of the other indict. ment, prosecuted also by the house of commons; and therefore, without a restatement of the same principles, and a similar quotation of authorities to support them, I need only remind you of the law applicable to this subject, as it was then admitted by the attorney general, in concession to my propositions, and confirmed by the higher authority of the court, viz.

First, that every information or indictment must contain such a description of the crime that the defendant may know what crime it is which he is called upon to answer.

Secondly, that the jury may appear to be warranted in their conclusion of guilty or not guilty,

And lastly, that the court may see such a precise and definite transgression upon the record as to be able to apply the punishment which judicial discretion may dictate, or which positive law may inflict.

It was admitted also to follow as a mere corollary from these propositions, that where an information charges a writing to be composed or published of and concerning the commons of Great Britain, with an intent to bring that body into scandal and disgrace with the publick, the author cannot be brought with. in the scope of such a charge, unless the jury, on examination and comparison of the whole matter, written or published, shall be satisfied that the particular passages charged as criminal, when explained by the context, and considered as part of one entire work, were meant and intended by the author to vilify the house of commons as a body, and were written of, and concerning them, in parliament assembled.

These principles being settled, we are now to see what the present information is.

It charges, that the defendant “unlawfully, wickedly, and maliciously devising, contriving and intending to asperse, scandalize and vilify, the commons of Great Britain in parliament assembled, and most wickedly and audaciously to represent their proceedings as corrupt and unjust, and to make it believed

« ZurückWeiter »