Page images




Earl Spencer agreed in the motion of his no- 1806.. ble friend, and Earl Westmorland maintained, that the charge having been once entertained by that House, they were bound to proceed in it. The House divided ; for Lord Grenville's motion, 25; against it 16.

Thus closed the prosecution of Mr. Judge Fox, Close of after it had for three years taken up the time of case. the House of Lords, furced from the legislature a partial and useless act, drained the public purse of above £30,000, and harassed an upright and inflexible judge by vexatious prosecutions, exorbitant expence and malignant obloquy. Notwithstanding the short duration of the Grenville administration, and the quick return to power of the prominent coadjutors of Lord Abercorn to crush the venerable judge, who had dared to make head against the system, yet so powerful was the acclamation of the respectable and independent part of the nation, in favour of his integrity, correctness and inflexibility, that they have never since ventured to bring the matter again before the public. Even without an opportunity of repelling the foul crimination of an overbearing and confederated ascendancy, the encreased confidence, approbation and credit of the discerning public have superseded the necessity of any detence and refutation on the part of that virtuous judge.

The case of Mr. Justice Johnson,* though of Close of Jus* As the whole of the proceedings both in Court anii Parlia-S ment relating to the case of Judge Johnson involves more novel


tice Johnson's case.



a very different complexion, could not fail to arrest the attention of the new ministers. It was glar

and unaccountable principles of legislation and jurisprudence, than any single case, which ever occurred in the most extraordi. nary of times, and the experiment has been first made upon Ireland, the reader will perhaps lay the following observations upon that case, to a laudable, certainly, an earnest anxiety to develope more clearly the secret workings of that system. The new rules of law respecting the evidence of hand writing and libel, which were introduced by Lord Ellenborough on the trial, may affect the life, liberty and property of any individual: it is therefore fitting, that they should be more extensively known, than they are likely to be from the lecture of law tracts and reports, which are seldom réad by others than gentlenen of the profession.

It has been said (p. 72,) that they consented to a bill being introduced for compelling witnesses to attend in England. Now the above sentence does not explain the peculiar circumstances, which occurred in the passing of the above bill to amend the statute of 44 Geo. II. The facts were as follow : leave was moved to bring in the bill, and it was proposed to be for no other purpose, than to amend the former act, by giving liberty to the party to tender bail. This was all, that had been first objected to in the former act. Accordingly, the bill to amend, as first brought in, contained no other clauses than those, which were made the first and second section of the act, and which relate to giving bail only. In this form, and with these two clauses only, the bill, being brought in, was ordered to be printed and circulated ; and with those two clauses only, the printed copy was sent over to Ireland. While this was going on, and in the interval between the first and third readings of the bill, some of the officers of the Court of King's Bench, among whom this extraordinary expected trial was a matter of conversation, had mentioned, that it was impossible the trial, as the law. then stood, should ever take place; inasmuch as the Court of King's Bench would neyer, according to thǝir rule, put a party on his trial, where he çould not compel the attendance of witnesses. This defect, disa


ingly notorious, that this too had been from the beginning a deep and insidious job of abused

covered by the talk of the officers, came to the ears of persons interested in prosecuting the trial. They carefully, however, concealed their information, and their consequent designs, as there was nothing so much dreaded, as a debate in the Commons on the bill. Accordingly the clauses, which were marked the 3d and -4th sections of the statute never made their appearance until the third reading of the bill, which is almost always in the House a matter of forni unattended to. They then were offered, and added, when probably there were not twenty members in the House, just before its rising. Thus they passed, without the slightest notice or intimation. If notice had been given, there were persons ready to oppose them upon such grounds, as would have rendered the measure extremely difficult, is not impossible to be carried.

By the practice of the common law the same process is allowed to the defendant in a misdemeanour for his defence as the Crown uses in his prosecution : i. e. the defendant is entitled to the benefit of a crown summons or subpænâ to compel the attendanče of witnesses, and upon the same terms; the Crown at cømmon law paying no expences. By some Irish statutes, Grand Juries may present for the expences of witnesses summoned for the Crown; but this is an exception. This rule of common lair is founded upon necessary justice and humanity. A person

charged with a crime is supposed innocent. 'To mulct him in e the preliminary steps by the payment of witnesses on the insti

tution of a public prosecution would be an intolerable hardship.'
The Crown pays no costs. If a man be found not guilty, the
Crown would by this means have the power (and has the power
under the present act) of mulcting any, the most innocent man
in the community in an enormous fine, Mr. Justice Johnson's
expences in bringing over witnesses alone cost him about a
thousand ponnds. Had the verdict been in his favour (with due
respect to the Court many think it ought) then a man found in-
nocent would have been enormously fined without remedy.
Supposing, on the other hand, that the power of the compul-

1806. power to answer the views of vindictive resent

ment. The great soreness of Lord Hardwicke

sory process of the Crown to witnesses be extended from one kingdom to another, without providing for the payment of their expences, the same grinding power, wbich is now put into the hands of the Crown officers over the property of any person however innocent, whom they may think proper to charge, would be giving over the property of every man in the community, whom they might think proper to persecute by summoning him as a witness. For however idly a mao may be summoned by the Crown he has no redress, except under some particular statutes as to Grand Juries. But under this statute he has no redress whatsoever, if he be summoned not on behalli of the defendant, but on behalf of the Crown. For it is not at all provided, that the Crown shall pay witnesses summoned for the prosecution. The Crown is not so much as named ; and the Crown cannot be bounden or have its prerogative taken away without being named. Upon a view of the whole law, as it. stands generally, it is full of partiality. According to the law, as it now stands, if a man he tried within the kingdom, where he resides, he has the benefit of the Crown process, as formerly, without payment. But if to the hardship of a trial, be superadded the hardship of being charged with having escaped cut of a place, where he never was, into a place, which he had never quiited, and being therefore dragged out of the place, where he had always lived, into a place, where he never existed : and that from one kingdom to another, and there rendered liable to the jurisdiction of a court, within the limits of which he had never breathed, under all those accumulated bardships, absurd in physics, impossible in nature, produced by the wild fiction of law, he shall then, and not until then pay all expences ; whereas had he been tried in any other way, except under that statute, he would have paid no expences..

It was said in the note, page 74, that the only point made at the trial was, whether the manuscript were the band writing of Mr. Justice Johnson. That was the question of fact, not a point of law. As by the decision in that case, and the rules

and Lord Redesdale at the reflections made upon them in the letters of Juverna, had produced the


given by the Bench, the law of libel, as well as the law of evi

dence at least, according to the generally preconceived opinions s on these subjects, seems to have been entirely changed, it may

be necessary, that the public inay be aware of the law, as laid · down on that trial to lake same notice of its

In the discussion, and upon the decision of the evidence rem specting that question of fact, several points of law appear to y have not only been decided, but to have been discovered. In

page 30 and 32, of the printed report of that trial, William Cob. is bett was admitted to give evidence, that he had received in the

same hand writing as the other letters, an anonymous letter, ea.

quiring of him, whether it would be agreeable to him to receive E from Ireland certain true and useful information respecting that

country. Upon being questioned as to the existence of the letter, - he said, he believed it was lost. It had been sent to the printi ing-office, zehere however he admitted he had never searched for He it. Upon the admission of this evidence, a great and general s rule of evidence arises. First, that a man, who had never seen ne the party write, and who had never seen such writing except in til the particular papers, and who had never even compared the pa

pers together, should be admitted to give evidence of similitude of hand writing.

. By the former law of evidence, similitude of hand-writing could hayot be given in evidence only by a person, who had seen the party.

write, and having been accustomed to see the writing, could from

his general acquaintance with the character, form a belief, that w the paper produced was of the same hand-writing. But in the i present a new rule of law is laid down). Cobbett had never seen

the party write, had not been accustomed to see his writing, and had never compared the writings together, which, he said, were written by the same hand. Therefore the general rule of law must now be considered as totally altered. Secondly, as to give ing parole evidence of the contents of lost papers, the former rule

was, that upon proof, that a paper had been diligently searched by for in all places, where it was probable it could be found, and

[ocr errors]
« PreviousContinue »