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“Do you imagine that the laws of this country can retain due authority, under a system such as yours, which would make Parliament the prostitute, and has made Government the common bawd of the nation? A system which not only poisons the source of the laws, but pollutes the seats of judgment ; you may say that justice between man and man will be faithfully administered, and you will set up the private dispensation of the laws, as an apology for their political perversion ; but, even that private dispensation will not be long pure, when you sell the power of that dispensation to every man who will give you money. Nor can the laws in a free country long retain their authority, unless the people are protected by them against plunder and oppression ; nor can that long be the case, unless the body who is to make, and the body who is to decide on the laws, be themselves protected against corruption. The present Administration, therefore, is an enemy to the law; first, because it has broken the law; secondly, because it has attempted to poison the true sources both of legislation and of justice ; and, however the friends of that Administration may talk plausibly on the subject of public tranquillity, they are, in fact, the ringleaders of sedition placed in authority. Rank majorities may give a nation law, but rank majorities cannot give law authority.
“But there is another circumstance attending the project, which should naturally have weight with Ministers. I mean the difficulty of carrying this pernicious project into full exertion. Don't gentlemen imagine that the country will at last find them out?—will discover that the multiplication of placemen, increase of pensions, sale, or rather, indeed, brokerage of honors, is a conspiracy against her, not against the aristocracy—but IRELAND?
“ If the nature of the measures did not import their own criminality and mischief, yet the conversation of the projectors has been full and explanatory on the subject: •Any money for a majority; give us the Treasury, and we buy the Parliament.' But conversations of this sort have even entered these walls. • These new charges are POLITICAL EXPEDIENTS—IRELAND WAS SOLD FOR £1,500,000 FORMERLY, AND, IF OPPOSITION PERSISTS, WILL BE SOLD AGAIN.'
“Sir, the servants of Government have forgotten to talk plausibly to the people of Ireland, on the subject of corruption ; and
have given the licentiousness of their conversation against the chance of their character. But, suppose this country and Parliament, however warned, willing to submit to the injuries, will they submit to insults? What are your measures but national indignities? what are these old hacks, now confidential Ministers, and the pert people they put forward in debate, but national indignities? But, supposing the country and her Parliament willing to submit to injuries, and willing to submit to indignities, yet will they submit to the new taxes, which those injuries and indignities will make necessary? The waste and corruption of your Ministers have exceeded your revenues ; an excess much condemned and much increased by the Marquis of Buckingham. Will this country be ready to supply both an extravagance which that Minister condemned, and a corruption which that Minister has created? Supposing the country willing to give up her liberty, and willing to give away her money, yet will she surrender her money, merely for the purpose of enabling such a set of Ministers to take away her liberty?”
To this bold and animated charge, Administration opposed the impassive shield of profligate dulness. The practice arraigned was not denied. The whole credit of Opposition was staked on the charge. The Secretary made a most curious and original defence; if so it might be called that defence was none; by an appeal to gentlemen on the other side, whether, when they had been in office, such things had not been done?—Admitting the crime, admitting the consequence, and only contending on the score of novelty, he dared to complain of the harsh language of Opposition in speaking of the black transaction. “ We do not come here, replied one of his adversaries, to exchange compliments in alternate melody, like two shepherds under an oak; we come to make inquisition of public guilt, and to call down public vengeance on the head of the offender.” But justice and eloquence and argument and wit, are alike inefficient, where numbers are to decide, and influence prevails. The question of impeachment was lost, as every former question had been lost, and the Minister retired in safety under a majority of one hundred and forty-four to eighty-eight.
Hitherto the contest had been in great constitutional measures only, when the ill success of their defenders could but remotely
affect the people at large. Political liberty was invaded, but civil liberty was supposed above the possibility of danger. The nation was now to be taught how very intimately they are allied, and with what a decided front they should oppose the smallest innovation on either.
The business I allude to, is the famous Doctrine of Fiats, which had for some months back a good deal engaged the public attention. It was brought forward by one of the first men in Opposition ; and his statement of the facts, which follows, was not contradicted by a single member of Administration.
A printer, from the complexion of his paper, obnoxious to Government, had published certain libels on some obscure characters, and on one which was known only for its peculiar infamy. The parties aggrieved applied to the Chief Justice of the King's Bench, for his permission to mark writs, vulgarly called his Fiat, to hold the printer to special bail in a very enormous sun. To hold a man to special bail in an action of scandal, where no special damage is laid, as a medium to ascertain the quantum of the bail, is, by the law of England, only allowable in two cases, in actions of scandalum magnatum, and of slander of title ; in all other actions, special bail is only requirable, when the damages can be specifically sworn to, and are of real value; that is, do not remain to be ascertained by a Jury. The affidavits on which the Chief Justice thought proper to issue his fiats were defective in both points. The action was but a common action of slander, and the damages were uncertain. They were defective further. In not one of them was there to be found what the law calls a per quod, that is, there was no actual injury set forth, by which, per quod, the plaintiff had sustained the loss he swore to, a circumstance essential to all applications to hold to special bail. The affidavit of one man states, that he had experienced the evil tendency of the reports spread ; that, being a manager of a playhouse, an eminent performer in England had, in consequence of these reports, expressed some doubt of his punctuality, and that, but for the interference of a friend, who vouched for his honesty, he might, perhaps, have been deprived of her assistance ; that, moreover, he had four daughters growing up, who, at some fueture day, might be injured in their prospects, by which he hath now, in the present tense, suffered damages; and to what amount?
FOUR THOUSAND POUNDS!—and he got a fiat for four thousand pounds.
The other affidavits were equally vague and indefinite. A man swears, that he was represented as keeping a house of reception, by which certain friends and neighbors had called to know why these slanders were circulated; and this injury and special damage of such impertinent visitors, he estimated at eight hundred pounds. A lady who “swore she was a modest woman, and indeed looked like a modest woman,” states in her affidavit, that she, being a spinster, has been represented as rather too intimate with a certain notorious character, by which she has reason to believe she is injured to the amount of one thousand pounds. Another person swears, that, by being called Francisco, and Shamado, and other ludicrous names, he is injured, God knows how, in his good name and fame, to the amount of two thousand pounds. And, on these vague allegations of uncertain and contingent injuries, measured only by the irritated malice of a revengeful prosecutor, the Chief Justice of Ireland thought proper to issue his fiats to the amount of seven thousand eight hundred pounds, in common actions of slander, with no special damage sworn to, when the Chief Justice of England would not have held the defendant in bail to the amount of ONE PENNY.
On these writs the Printer was arrested and thrown into gaol. Shortly after, he applied to the Court by his counsel, either to dismiss him on common bail, or, in other words, no bail at all, or to reduce the quantum to five hundred pounds. To the first point his counsel showed, from the great principles of law, and from the uniform practice of the English courts, that there never was a case wherein a man had been held to special bail, in an action of slander, with no special damages sworn to, except in cases of scandalum magnatum, or slander of title, and quoted authorities of the highest legal rank in support of their argument. If, however, the Court should overrule that point, they showed, from the insufficiency of the affidavits, from the slight and uncertain nature of the injuries, and the low rank in life of all the parties, that the present bail was enormous, and should be reduced. After a considerable interval, in a full Court, the Lord Chief Justice pronounced his own and his brethren's opinion. He read out a part of a passage in Blackstone, to form
a principle. * He past by in silence the uniform practice of the English Judges, and justified his practice by a long list of Irish precedents, which certainly go so far as to acquit him of innovation. Having established, in this manner, bis principle that " the practice of the Court is the law of the Court,” and by consequence the law of the land ; his Lordship came to the second point; and, as to the quantum of damages he read a part of an affidavit of the defendant, setting forth, that, by libellous publications of one of his adversaries, he was “ so reduced in his credit as not to be able to find bail to the amount of more than £ 500." He then quoted a former assertion of the defendant's made in a newspaper,
“ that he could find bail to the amount of half a million,” and he argued from this, that if the defendant was by slander reduced from half a million to five hundred pounds, it was the strongest proof of the mischief of slander, and gave him the less claim on the mercy of the Court. His Lordship, therefore, with the concurrence of his three learned brethren, refused both parts of the motion with costs, and the printer now lies in Newgate, has done so since last Hillary term, and must do so until he can find bail to the amount of £7,800, or compel his adversaries to try their actions.
In the first part of his argument, the Lord Chief Justice has partially quoted Blackstone; in the last, he fell into the same inaccuracy. The defendant swore that " in consequence of frequent and vexatious arrests, by fiats and otherwise, and by libellous publications, he was so injured in his credit as to be unable to find bail for more than £ 500.”
The words in Blackstone are, (vol. iii, page 292, title Process,) "In actions where the damages are precarious, being to be assessed, ad libitum, by a jury, as IN ACTIONS FOR Words, ejectment or trespass, it is very seldom possible for a plaintiff to swear to the amount of his cause of action; and, iherefore, no special bail is taken thereon, unless by a Judge's order, or the par. ticular directions of the Court.” Here his Lordship, with great self-congratulation, made a full stop. It would not be very decent to finish a pa. ragraph for him in Court, but, in this form, it may, with humble deference, be suggested, that, in the original, it is but a comma, and these words follow immediately and conclude the sentence : “In some peculiar injuries, as in cases of mayhem or atrocious battery." Which sufficiently determine, wherein the Judge has this discretionary power. And the reason is manifest, for in those cases the injury is obvious to the senses, and the judge may, in a degree, ascertain the damage ; which is of the essence of special bail. Yet, in England, even in very atrocious cases of battery and wounding, special bail has been denied by the Court,