The speech of Quintus Mucius, who spoke I next. Mr Prefident, ed and killed 20,000 of the enemy; that notwithstanding his having defeat from the execution of which fentence he was faved, not by the authority or the command of the republic, but by the prayers and intreaties of the fenate, the tribunes of the people, and the army, inforced by the tears and lamentations of an aged and much honoured father. DO not rife up to follow the Noble Lord through the whole of his long gament; for, in my opinion, the most of what he faid was quite foreign to the prefent queftion; which is plainly and ir hor this: Are our Eaft-India com- From thefe examples, Sir, we may pany to have troops in any of their forts fee how abfolute and arbitrary the mar or fettlements in that country, or no? tial law of the Ro.nans was; and from And I could not obferve, that the Noble many examples, both ancient and moLord faid one word against this question. dern, I could fhew, that there never Indeed, it is fo evident, that if the com- was an army any where kept up withpany must have forts, they must have out martial law. It is indeed impoffible garridons to defend thofe forts, that it is to govern an army without martial law; impoffible for the wit of man to invent and the only reafon why we of old had an argument against it. The company no martial law in time of peace, was muft then have troops in that country; because we had then no army kept up. and if they must have troops, they muft Nor can it be faid that either Charles Live martial law. Without fuch a law, or James II. governed their armies there never was an army kept up, or without martial law; for it is well lent out, in any part of the world. E- known, that both of them exercised Ten among the Romans, in the most martial law by the fame authority by Bourishing time of their republic, their which they kept up armies; that is, by armies were fubject to, and governed by an illegal and ufurped ufe of prerogaa law very different from the civil law tive. And the bill now before us plainof their country; a law much more ar- ly fhews how happy, how fafe we are, bitrary than what we now call martial under the government of his prefent law; for we do not read of courts mar- Majefty; who is fo far from ftretching tal in any part of the history of that re- prerogative, in any cafe, beyond its public, becaufe the commander in chief juft bounds, that he never will make was vefted with a fole, an abfolute and ufe of it, when there is the least doubt arbitrary power, over every man in the to be made, whether or no it be agreearmy under his command. According. able to our conftitution As the whole ly we read, that the fecond Appius tenor of his conduct has been according Claudius, by his own fole authority, to the known and established laws of the caufed feveral officers to be executed, kingdom, fo in every doubtful cafe he ad the reft of the army to be decimated, chufes to apply to his parliament for a account of their having feditiously new law when it becomes necessary, allowed themfelves to be defeated by rather than to act by virtue of prerogathe enemy; and that Manlius Torqua- tive. It is this laudable moderation in ts, by his fole authority, caufed his his Majefty that has given occafion for own fon to be executed, for having the bill now under our confideration: bought, and killed one of the enemy's for if his Majefty had by his prerogathief officers, contrary to his orders. tive impowered the company to exercise So likewife we read, Sir, that, a few martial law, with refpect to their troops in years afterwards, Papirius Curfor, by St Helena and the Eaft Indies, especialown fole authority, condemned his ly at this prefent time, I doubt if any of matter of the horse, or what we may our lawyers would have given it as their tall his deputy lieutenant, to be execu- opinion, that it was contrary to our an❤ ted, because in his abfence he had fought cient conftitution; for before the revothe enemy contrary to his orders, and lution it was always held as a maxim, That That when the King had occafion to fend or to keep regular troops any where beyond fea, even in Ireland, he might impower the commander to exercile martial law, and establish articles of war for that purpose. And fo tenacious was the crown of this prerogative, that in the mutiny act of the 7th of Q. Anne, and all the following mutiny acts of her reign, there was a claufe inferted, for providing that the act should not abridge the power of the crown, as to the making of articles of war, and appointing courts-martial, as might have been done before by the authority of the crown in places beyond fea in time of war. Upon this maxim, Sir, is founded that power which all our colonies in America now enjoy: for every one of them has a power, in time of danger, to raife troop, and to proclaim martial law, for any time they think neceffary; during which time the old maxim takes place, Inter arma filent leges; their civil laws from that moment give place to the martial, to which every man in the colony, able to bear arms, becomes liable. And why his Majefty might not give a power to a number of his fubjects fettled in the East Indies, as well as to a number of them fettled in the Weft Indies, to have regular troops in their fervice, and to exercife martial law over those troops, I believe it will be pretty hard to find a fatisfactory reafon: therefore, if we had now a prince upon the throne as fond of prerogative, and of exercising it upon every occation, as most of our princes were before the acceffion of our prefent royal and illuftrious family, I am convinced we should not have been troubled with the bill now before us; because the whole that is propofed by this bill would have been done by vir tue of his Majesty's prerogative, and without asking the advice or confent of either house of parliament. I hope it will now appear, Sir, that with regard to every place beyond fea, which has been included in any mutinybill fince the revolution, it is fo far from being an extenfion of the martial law, that it may very properly be called an addition to the privileges of the people; for no British fubject, let him be fettled where he will, can now be subjected to martial law, whilst he remains under the protection of the crown of G. Britain, without his own confent. Nay, even our militia cannot now be fubjected, I believe, to martial law, no not even in the cafe of an invasion or rebellion, without an act of parliament for that purpose. At leaft we may be well affured, that his prefent Majefty will never attempt it; as no fuch thing was thought of during the late rebellion, notwithstanding the imminent danger we fhould have been in, had his Royal Highnefs and the troops from Flanders been detained but a few weeks by contrary winds. Then, Sir, as to the crimes and perfons that have in any degree been fubjected to martial law, fince the paffing of the first mutiny-bill in 1689, neither of them can properly be called an extenfion of the martial law, but only a supplying of the defects that were in the first mutiny-act; which, from the weakness of human wifdom, must always be expected, when a new law is to be made for regulating any affair of fo complicated a nature; and I am fure it cannot be faid, that any perfon, or any offence, has fince been fubjected to martial law, but what has an immediate relation to, or connection with the military. But, Sir, however much our martial law may have been extended fince the firft mutiny-act, furely what is now propofed cannot be faid to be an extenfion of it with respect to this kingdom; nor can our conftitution or liberties ever be in danger from the exercife of martial law in the Eaft Indies: and as the Noble Lord did not fo much as infinuate, that it was unneceffary for the company to keep any troops in their fettlements there, he muft allow that it is now be come neceffary to enable them to keep thofe troops under proper difcipline. is true, Sir, their troops have lately be haved very gallantly; confidering what fort of troops they are, they have really done wonders: but we know that many of their common men have lately defert ed; and we know that they have a nea neighbour who will not only receive, ba encourag encourage every deferter from them in particular. When we know that they are fo powerfully attacked, can we refate giving them all the affiftance we can, either by laws or otherwife? For this reafon, I think we cannot enough applaud his Majesty's affifting them with fone of his troops. The fending of fuch troops thither, can no way alter the course of tranfactions in that country: for though they are his Majefty's troops, they will in every thing there act in the name of the company; and confequently cannot involve the crown in any of the company's difputes with the princes arabobs upon that coaft. It might as well be faid, that the fending of our men of war there, would involve the crown in thofe difputes: yet we know I never has, nor indeed ever can; becanfe all tranfactions with the Great Mogul, or any other potentate in the a, are carried on in the name of the company, and not in that of the crown. And as to the King's troops having any dipete with the company's troops, we have experience for fuppofing, that no ach thing can happen; because in the ate war a much larger number of the Aing's troops were fent thither, without producing any fuch accident. that I have not the leaft apprehenfion of any prefent or future minifter's ever going fo far from home. This I must look on as one of the moft far-fetched arguments that was ever made ufe of upon any occafion; and as no gentleman has a better talent than his Lordship at finding arguments in favour of what he efpoufes, or against what he opposes, his making ufe of fuch an argument convinces me, that no good one can be found against this bill; for which reafon I shall be for its being committed. IT [This Journal to be continued.] GENTLEMAN'S MAGAZINE. Mr URBAN, Ipswich, Aug. 7. 1754T is a maxim in almost every civil government, That it is better ten perfons being guilty fhould efcape, than that one being innocent fhould fuffer. Upon this principle it has been usual to require pofitive and direct proof of every fact for which capital punishment is inflicted; and, in fome countries, no criminal is executed, if, befides this proof, he does not himself confefs the fact. Circumftantial evidence may amount to the utmost degree of probability, but can go no further; circumftantial evidence therefore has generally been thought infufficient to convict any person of a capital offence [xiv. 170.]. Yet, when the crime has been very great, it has been ufual to punish the accufed upon more flender evidence than when the crime has been lefs. But this is doubtless contrary to reafon for we fhould be more cautious of imputing twenty degrees of guilt than ten; because, if we are mistaken, the wrong is proportionably greater; in this cafe paffion determines before reafon comes in; an impatience to punish is always proportioned to the indignation excited by the crime; and rather than the accufed fhould escape, being guilty, fome risk is run of punishing him being innocent. By pofitive evidence, is meant that of a witnefs who was prefent at the fact, and fwears to the person who did it. But if a man be robbed upon the highway of twenty guineas and a moidore, and shot dead upon the spot; and As to the character of the company's , Sir, I really know nothing of They may be of fuch a low character as the Noble Lord has been informed; for a is not the first time that men of a very low original have rifen to a high rank in an army; and it redounds er honour, I think, rather than their credit. But I was furprifed to hear piece of information come from his Lohip: for if the officers be men of a low original, what muft we think the common men? They must be the refufe of Bridewell and Tyburn, confequently cannot be kept in orwithout the moft ftrict and fevere dibe-e. This is therefore as ftrong an hatament as can be urged in favour of before us. And to say that 1 for a perpetual mutiny-act in the Indies, may be made a precedent ach another here at home, is really but fuch a long way for a precedent, rage. XVII. eep ally any Tert near NOW E a perfon within hearing of the piftol, rides up, finds the man dead, hears the trampling of a horfe, and following the found, overtakes and feizes a man, in whofe coat-pocket are juft twenty guineas and a moidore, who has one piftol loaded, and one that appears to have been juft fired, who appears terrified and confufed, and had made his utmost effort to escape; this evidence, however ftrong, is only circumftantial, and it is poffible, the man against whom it appears, may be innocent, though the evidence be true. Of this there have been many inftances; and for the entertainment of your readers I now fend you two; one of which I have extracted from fome minutes and memorandums made by my grandfather, of criminal caufes, in which he was counsel on the part of the crown, in the reign of Charles II.; and the other I have somewhere read, but it is fo little known, that I am fure it will be new to at least nine tenths of your numerous readers. I am, &c. T. B Aques Du Moulin, a French refugee, a fmall fum of money, employed it in purchafing lots of goods that had been condemned at the customhoufe, which he again difpofed of by retale. As thefe goods were fuch as having an high duty were frequently fmuggled, thofe who dealt in this way were generally fufpected of increafing their ftock by illicit means, and fmuggling, or purchafing fmuggled goods, under colour of dealing only in goods that had been legally feized by the King's officers, and taken from fmugglers. This trade however did not, in the general eftimation, impeach his honefty, though it gave no fanction to his character. But he was often detected in uttering falfe gold. He came frequently to perions of whom he had received money, with feveral of thefe pieces of counterfeit coin, and pretended that they were among the pieces which had been paid him. This was generally denied with great eagernefs; but, if particular circumftances did not confirm the contrary, he was always peremptory and obftinate in his charge. This foon brought him into difrepute, and he gr dually loft, not only his bufinefs, b his credit. It happened, that having fo a parcel of goods, which amounted 781. to one Harris, a person with who he had before had no dealings, he rece ved the money in guineas and Portug gold, feveral pieces of which he fcr pled; but the man having affured hi that he himself had carefully examin and weighed those very pieces, and four them good, Du Moulin took them, an gave his receipt. In a few days he returned with pieces, which he averred were of ba metal, and part of the fum which had a few days before received of hir for the lot of goods. Harris examine the pieces, and told Du Moulin that h was fure they were none of them amon thofe which he had paid him, and ref fed to exchange them for others. D Moulin as peremptorily infifted on th contrary; alledging, that he had p the money in a drawer by itself, a locked it up till he offered it in payme of a bill of exchange, and then the piec were found infifting bitt were the fame to which he had objecte The man now became angry, and cha ged Du Moulin with intending a frauc Du Moulin appeared to be rather pique than intimidated at this charge; and h ving fworn that these were the pieces received of Harris, Harris was at leng obliged to make them good. But he was confident Du Moulin had inju him by a fraud, fupported by perja he told his ftory where ever he went, claiming against him with great nefs; and met with many perfons made nearly the fame complaints, a told him that it had been a practice Du Moulin's for a confiderable Du Moulin now found himself univer ly fhunned; and hearing what Ha had reported from all parts, he broug his action for defamatory words. ris, irritated to the highest degree, f upon his defence; and, in the me time, having procured a meeting of veral perfons, who had fuffered the fa way in their dealings with Du Mou they procured a warrant against h of counterfeiting the coin. Upon fearch and he was apprehended upon fufpicion it there in the ftead of an equal number of good pieces, which he took out; that by this iniquitous practice Du Moulin had been defrauded of his business, his credit, and his liberty; to which in a fmall time his life would be added, if application was not immediately made to fave him By this account, which fhe gave in great agonies of mind, the was much exhaufted; and having given directions where to find the perfons whom the impeached, the fell into convulfions, and foon after expired. The woman immediately applied to a magiftrate; and having related the story the had heard, procured a warrant against the three men; who were taken the fame day, and feparately examined. Du Moulin's fervant fteadily denied the whole charge; and fo did one of the other two. But while the last was examining, a meffenger who had been sent to fearch their lodgings, arrived with a great quantity of bad money, and many inftruments for coining. This threw him into confufion; and the magiftrate improving the opportunity, by offering him his life, if he would become an evidence for the King, he confeffed, that he had been long affociated with the other prifoners, and the man that was dead; and he directed where other tools and money might be found, But he could fay nothing as to the manner in which Du Moulin's fervant was employed to put it off. Upon this discovery Du Moulin's execution was fufpended; and the King's witnefs fwearing pofitively, that his fervant and the other prifoner had frequently coined in his prefence, and giving a particular account of the process, and the part which each That her husband was one of four, of them ufually performed, they were the named, that had for many convicted, and condemned to die. Both fubfifted by counterfeiting gold of them however ftill denied the fact; which he had been frequently and the public were ftill in doubt about oyed to put off, and was therefore Du Moulin. In his defence he had deed with the whole fecret; that an- clared, that the bad money which was of thefe perfons had hired himfelf found together, was fuch as he could not Moulin as a kind of footman and trace to the perfons of whom he had reand being provided by the gang ceived it; that the parcels with which falfe keys. had difpofed of a very bad money was found mixed, he kept derable fam of bad money, by o- feparate, that he might know to whom g his matter's fcritoir, and leaving to apply if it fhould appear to be bad. E 2 But |