sandals, mostly of brass, but not without a small proportion of gold and
silver, and his wings chiefly of the two latter metals, but allayed with
a little of the former; with those he used to trudge up and down to
furnish them with necessaries; with these he'd take a flight to other
countries, but not so dexterously or to so good purpose as in other
places of his office, not so much for want of encouragement among 'em
here, as on account of the haughty jealousy of their neighbours, who, it
seems dreading in them a rival, took care to clip his wings and
circumscribe his flights; the former, more especially, being, by these
and other means so much worn, he performed his office but lamely, which
gave occasion to some who had their own private interest more at heart,
than that of the public, to patch up some of the places that were worn,
with a metal of the same nature indeed, but so slight and base, that
though at first it might serve to carry him on their errands, it soon
failed, and by degrees grew entirely useless; insomuch, that he would
rather be retarded than promoted in his business, and this occasioned
the above disturbances among his dependents, who thereupon turned their
eyes towards their mistress (for by this time she will I presume be
better known by that, than the more homely and sociable name of
neighbour) and not daring of late to say or do anything without her
approbation, made several humble applications to her, beseeching that
she would continue them that liberty of refitting these implements
themselves, which she had been formerly pleased graciously to allow 'em;
but these, however reasonable, were all rejected, whereupon I observed a
certain person (a mean ill-looking fellow) from among a great number of
people that stood behind the genius of England, who, during the whole
affair had kept his eyes intently fixed on his neighbours, watching all
their motions, like a hawk hovering over his quarry, and with just the
same design: Him, I say, I observed to turn off hastily, and make
towards the throne, where being arrived, after some preparations
requisite, he preferred a petition, setting forth the wants and
necessities, (but taking care to make 'em appear at least four times
greater than they really were) of his neighbours, or as he might have
more truly and honestly said his own, both which, for the latter, though
not expressed, he chiefly intended, but modestly or rather knavishly
left to be understood, he begged the royal licence to redress, by
supplying those defects which were the occasion of 'em. This humble
suppliant I observed both before and after this petition, seemed to
employ his utmost industry and art, to insinuate himself into the good
graces of two persons that stood on each side the throne;[2]the one on
the right was a lady of large make and swarthy complexion; the other, a
man, that seemed to be between fifty and sixty, who had an air of deep
designing thought: These two he managed with a great deal of art; for
the lady he employed all the little arts that win her sex, particularly,
I observed, that he frequently took hold of her hand, as in raptures, to
kiss it, in such a manner as made me suspect she did not always draw it
back empty; but this he did so slily, that it was not easy for anybody
to be certain of it: The man on the other hand, he plied his own way
with politics, remonstrating to him the several things he had before the
throne; which however, as might be presumed from his manner of attending
to them, seemed to make little impression; but when he came to lay
before him the great advantages that might accrue from thence to their
mistress, and consequently to him, he heard him with the utmost
eagerness and satisfaction; at last, having plainly told him, that he
himself should be a considerable gainer by it, and thereupon, that every
thing that came to his hands of that nature should be at his service: As
a sort of token or earnest he kissed his hand in the same manner he had
the lady's, and so retired; by these and the like means he soon brought
over both parties to him, who, with a whisper or two, procured him the
royal licence; whereupon he immediately fell to making up a metal, if it
deserved the name, of a very strange composition, wherewith he purposed
to refit the implements of that useful deity, but in such manner, that
for the base metal he put into them, he would take care to draw away
from them an infinitely more than proportionable quantity of gold and
silver, and thereby render him almost incapable of taking flight to
foreign countries; nay, at last perhaps utterly so, when under pretence
of their not being completed, he should filch in more of his metal, and
filch away more of theirs.
[Footnote 2: The Duchess of Kendal and Sir Robert Walpole. [S.]]
These things being therefore prepared, he sends 'em over to his
neighbours, and there endeavoured to get them admitted by fair words and
promises, being too sensible that they were not of themselves the most
willing to accept of his favour, and indeed he was not deceived; for
they being advertised of his designs, had taken the alarm, and had
almost to a man united in one common faction against him. This generous
ardour had first taken hold of the most active and important part, and
if I may be allowed to call it, the heart of this body, from thence was
on one side by a quick passage, and in its more refined parts,
communicated through the blood to the contemplative, and reasoning, the
head, which it inspired with noble thoughts and resolutions; and on the
other, to the inferior extremities, which were thereby rendered more
expedite and readier to obey the dictates of the head in a rougher
method of opposition, from each of which extremities being carried back
to its fountain, it was returned to them from thence, and so backwards
and forwards, till the circulation and union were confirmed and
completed, the sordid unnatural, offensive parts being in the meantime
thrown off as dregs of nature, and nuisances of human society; but of
these in so well-tempered a constitution, there were but few; however,
when there were any to be found, though they had been of the most
exalted nature, and bore most noble offices in this body, by any
corruption became so, they shared the common fate, with this only
difference, that they were rejected with greater scorn and contempt on
account of their former dignity, as was found in one notorious instance;
but on the other hand, among all the parts that were serviceable to the
constitution on this occasion, there was not one more so, than a certain
one whose name indeed is not openly known, but whose good offices and
usefulness are too great ever to be forgotten; for it by its nice
diligence and skill selected out things of the most noble and exquisite
nature, by infusing and dispersing them to enliven and invigorate the
whole body, which how effectually they did, our bold projector sadly
experienced. For finding all his endeavours to pass his ware upon them,
disappointed, he withdrew; but his patron on the other side being
informed of what had passed, fell into a most terrible passion, and
threatened, they say, I know not what, of making to swallow and ramming
down throats; but while they were in deep conference together, methought
all on a sudden a trap-door dropped, and down fell our projector; this
unexpected accident did on many accounts not a little alarm the throne,
and gave it but too great occasion to reflect a little on what had been
doing, as what a mean ordinary fellow it had intrusted with the care of
an affair of so great consequence that though their neighbours' refusal
might possibly have put him to such straits as might be the great
occasion of this disgrace, yet that very refusal could not be so
universal and resolute without some reason, which could arise from
nothing else but the unseasonableness or unworthiness of his offers, or
both, and he, consequently, must deserve as much to suffer as they did;
not for the better information, therefore in these surmises some of the
neighbours were consulted, who confirming them, things seemed to bear a
good face, and be in a very fair way of clearing up. When I awoke, I
cannot say whether more pleased at the present posture of affairs, when
I recollected how indifferent an one they had lately been in, or anxious
when upon considering that they were not yet firm and settled, I was led
to reflect in general on the uncertainty of events, and in particular,
on the small reason the persons in hand can have to promise themselves
prosperous ones, especially when they are depending in that part of the
world.
Dublin, printed in the year 1724-5.
APPENDIX IV
A LETTER FROM A FRIEND TO THE RIGHT HONOURABLE ------[1]
Ceteri, quanto quis servitio promptior, opibus et honoribus extollerentur:
Invalido legum auxilio, quae vi, ambitu, postremo pecunia
turbabantur.--_Tacit. An._
To THE RIGHT HONOURABLE ------
I fear your lordship in your wonted zeal for the interest of your
country will think this paper very unseasonable; but I am very confident
not more than one man in this kingdom will be of your lordship's
judgment.
[Footnote 1: The two following severe letters are directly addressed to
Lord Chief Justice Whitshed, and were generally circulated. They
probably underwent Swift's correction, though they have too much of a
legal cast to have been written by the Dean himself.... They were,
perhaps, composed by Mr. Robert Lindsay, distinguished by Swift in his
letter to Lord Midleton, as an eminent lawyer, as well as a man of
virtue and learning, whose legal advice he used during the whole
controversy. [S.]
The present letters are taken from copies of the original broadsides in
the South Kensington collection. [T.S.]]
In matters of law your opinion has from our first acquaintance entirely
guided me, and the things you have assured me I might depend upon as
law, have few of them escaped my memory, though I have had but little
conversation with you since you first appeared in Parliament and moved
the House to resolve, That it is the indispensable duty of the judges of
this kingdom to go through their circuits; nor have I had any since you
fell sick and was made solicitor-general.
I have often heard your lordship affirm, and therefore I do affirm it,
That the great ends for which grand juries were instituted, were the
support of the government, the safety of every man's life and fortune,
it being necessary some should be trusted to inquire after all
disturbers of the peace, that they might be prosecuted and brought to
condign punishment; and it is no less needful for every man's quiet and
safety, that the trust of such inquisitions should be put into the hands
of persons of understanding and integrity, that will suffer no man to be
falsely accused or defamed; nor the lives of any to be put in jeopardy,
by the malicious conspiracies of great or small, or the perjuries of any
profligate wretches.
So material a part of our constitution are grand juries, so much does
the security of every subject depend upon them, that though anciently
the sheriff was by express law, chosen annually by the people of the
county, and trusted with the power of the county, yet the law left not
the election of grand juries to the will of the sheriff, but has
described their qualifications, which if they have, and the sheriff
return them, no man, nay no judge, can object to their being sworn, much
less may they to their serving when sworn: And to prevent the
discretionary power (a new-fashioned term) of these judges over juries,
you used to say was made the statute of the 11th of Hen. 4.
Pardon me my lord if I venture to affirm, That a dissolving power is a
breach of that law, or at least an evasion, as every citizen in Dublin
in Sir Constantine Phipps's time perfectly understood, that disapproving
the aldermen lawfully returned to the Privy-council was in effect
assuming the power of choosing and returning----But your lordship and
I know dissolving and disapproving are different terms.
I always understood from your Lordship the trust and power of grand
juries is or ought to be accounted amongst the greatest and of most
concern, next to the legislative: The honour, reputations, fortunes and
lives of every man being subject to their censure; the kings of England
have an undoubted power of dissolving parliaments, but dissolving 'till
one was returned to their or their ministers' liking, has never been
thought very righteous, and Heaven be praised never very successful.
I am entirely of your lordship's opinion, the oath of a grand juryman is
not always sufficiently considered by the jurors, which is as follows.
"You shall diligently enquire, and true presentment make of all such
articles, matters and things as shall be given you in charge; And of all
other matters and things as shall come to your own knowledge, touching
this present service. The King's counsel your fellows' and your own you
shall keep secret," &c.--And from some other men's behaviour, I fear
oaths are not always as sacredly observed as they ought to be: "The
King's counsel, your fellows' and your _own_ you shall keep
secret"--Though our grandmothers my lord might have thought there was a
dispensing power in the Pope, you and I profess no power upon earth can
dispense with this oath, so that to force a man to discover the counsel
he is sworn to keep, is to force him into direct perjury.
Suppose upon information taken before your Lordship of a rape committed,
a bill of indictment were sent to a grand jury, and the grand jury
return _ignoramus_ on it, application is made to the Court to
recommend it to them to reconsider it, and they return as before
_ignoramus_--Suppose a judge with more than decent passion should ask
them their reasons (which is their counsel) for so doing, nay should be
so particular as to demand of them whether they thought the woman a
whore. Must not all the world conclude somebody had forgot the oath of a
grand juryman? Yes sure, or his own, or worse.--But suppose they should
ask a juror a question might criminate himself? My Lord, you know I put
not bare possibilities, it is generally believed these things have been
done within an oak of this town--And if I am rightly informed, the
restraint a juror is under by his oath, is so well understood, that a
certain person desired the clerk of the Crown to change the form of it
by adding this exception: "unless by leave or order of the Court."
These things, my Lord, would seem strange in Westminster-hall, and would
be severely noted in St. Stephen's Chapel. The honour of the Crown would
be thought a very false as well as weak plea for such proceedings there,
as indeed it is an infamous one everywhere, for 'tis a scandal upon a
king, if he is represented in a court of justice, as if he were
partially concerned or rather inclined to desire, that a party should be
found guilty, than that he should be declared innocent.
The King's interest and honour is more concerned in the protection of
the innocent, than in the punishment of the guilty, as in all the
immediate actions of his Majesty we find that maxim pursued, a maxim can
never run a prince into excesses. We do not only find those princes
represented in history under odious characters, who have basely betrayed
the innocent, but such as by their spies and informers were too
inquisitive after the guilty, whereas none was ever blamed for clemency,
or for being too gentle interpreters of the law. Though Trajan was an
excellent prince, endowed with all heroical virtues; yet the most
eloquent writers, and his best friends, found nothing more to be praised
in his government, than that in his time, all men might think what they
pleased, and every man speak what he thought, this I say, that if any
amongst us by violent measures, and a dictatorial behaviour have raised
jealousies in the minds of His Majesty's faithful subjects, the blame
may lie at their door.
I know it has been said for His Majesty's service, grand juries may be
forced to discover their counsels: But you will confess a king can do
nothing against law, nor will any honest man judge that for his service,
which is not warranted by law. If a constant uninterrupted usage, can
give the force of a law, then the grand jurymen are bound by law, as
well as by their oaths, to keep the King's, their fellows' and their own
counsel secret. Bracton and Britton in their several generations bear
witness, that it was then practised; and greater proof of it needs not
be sought, than the disputes that appear by the law-books to have been
amongst the ancient lawyers, Whether it was treason or felony for a
grand juryman to discover their counsels--The trust of grand juries was
in those days thought so sacred, and their secrecy of so great concern
to the kingdom, that whosoever should break their oaths, was by all
thought worthy to die, only some would have them suffer as traitors,
others as felons.
If a king's commands should come to the judges of a court of justice or
to a jury, desiring them to vary from the direction of the law, (which
it is criminal to say, and no man ought to be believed therein) they are
bound by their oaths not to regard them. The statute of 2 of E. 3. 8.
and 20 E. 3. I. are express; and the substance of these and other
statutes is inserted into the oaths taken by every judge; and if they be
under the most solemn and sacred tie in the execution of justice to hold
for nothing the commands of the King under the great seal, then surely
political views and schemes, the pleasure or displeasure of a minister,
in the like case ought to be less than nothing.
It is a strange doctrine that men must sacrifice the law to secure their
properties, if the law is to be fashioned for every occasion, if grand
jurymen contrary to their oaths must discover their fellows' and their
own counsels, and betray the trust the law has reposed in them, if they
must subject the reasons of their verdicts to the censure of the judges,
whom the law did never design to trust with the liberty, property, or
good name of their fellow-subjects. No man can say he has any security
for his life or fortune, and they who do not themselves, may however see
their best friends and nearest relations suffer the utmost violences and
oppressions.
Which leads me to say a few words of the petit jury, not forgetting Mr.
Walters. I am assured by an eminent lawyer, that the power and office of
a petit jury is judicial, that they only are the judges from whose
sentence the indicted are to expect life or death. Upon their integrity
and understanding the lives of all that are brought in judgment do
ultimately depend; from their verdict there lies no appeal, by finding
guilty or not guilty. They do complicately resolve both law and fact. As
it hath been the law, so it hath always been the custom and practice of
these juries (except as before) upon all general issues, pleaded in
cases civil as well as criminal, to judge both of the law and fact. So
it is said in the report of the Lord Chief Justice Vaughan in Bushell's
case, That these juries determine the law in all matters where issue is
joined and tried, in the principal case whether the issue be about
trespass or debt, or disseizin in assizes, or a tort or any such like,
unless they should please to give a special verdict with an implicate
faith in the judgment of the Court, to which none can oblige them
against their wills.
It is certain we may hope to see the trust of a grand juryman best
discharged when gentlemen of the best fortunes and understandings attend
that service, but it is as certain we must never expect to see such men
on juries, if for differing with a judge in opinion, when they only are
the lawful judges, they are liable to be treated like villains, like
perjurers, and enemies to their king and country; I say my lord such
behaviour to juries will make all gentlemen avoid that duty, and instead
of men of interest, of reputation and abilities, our lives, our
fortunes, and our reputations must depend upon the basest and meanest of
the people.
I know it is commonly said, _boni judicis est ampliare juridictionem_.
But I take that to be better advice which was given by the Lord
Chancellor Bacon upon swearing a judge; That he would take care to
contain the jurisdiction of the court within the ancient mere-stones
without removing the mark.
I intend to pay my respects to your lordship once every month 'till the
meeting of the Parliament, when our betters may consider of these
matters, and therefore will not trouble you with any more on this
subject at present. But conclude, most heartily praying----
That from depending upon the will of a judge, who may be corrupted or
swayed by his own passions, interests, or the impulse of such as support
him and may advance him to greater honours, the God of mercy and of
justice deliver this nation.
I am, my lord,
Your lordship's most obedient humble servant,
N.N.
Dec. the First 1724.
Dublin: Printed in the Year 1724.
A SECOND LETTER FROM A FRIEND TO THE RIGHT HONOURABLE ------
My Lord,
I think the best service men employed by His Majesty can do for him and
this country, is to shew such prudence and temper in their behaviours as
may convince every man they are not intrusted with any power but what is
necessary and will always be exercised for the advantage and security of
His Majesty's subjects.
For my own part I hold it the duty of every man though he has not the
honour of serving His Majesty in public employment, not only, not to
misrepresent the actions of his servants, but in matters of small
concern, to wink at their follies and mistakes; I know the Jacobites and
Papists our irreconcilable enemies are too watchful to lay hold of every
occasion to misrepresent His Majesty and turn the faults of ambitious
and self-interested servants upon the best of kings.
I hear some men say, that in my last to your lordship, there appears
more of the satirist, than becomes a man engaged merely in the defence
of liberty and justice; But I am satisfied I can with charity affirm,
they are either such as have no knowledge of the several steps [that]
have been taken to bring this poor country into ruin and disgrace, or
they are of the number of those who have had a share in the actings and
contrivances against it; for my lord, he must rather be an insensible
stoic than an angry cynic, who can survey the measures of some men
without horror and indignation--To see men act as if they had never
taken an oath of fidelity to their king, whose interest is inseparable
from that of his people, but had sworn to support the ruinous projects
of abandoned men (of whatever faction) must rouse the most lethargic, if
honest, soul.
I who have always professed myself a Whig do confess it has mine.
I beg leave in this place to explain what I intended in my last by the
words, "unless by leave or order of the court," lest whilst I plead for
justice I should do an injury to your lordship.
I do declare I never heard that story of your lordship, and I hope no
man did believe it of you. My intention was by that hint to remember you
of Judge U--p--n and a certain assizes held at Wicklow, as I believe
your lordship understood it, and as I now desire all the world may.
Having learned from your lordship and other lawyers of undoubted
abilities, that no judge ought by threats or circumvention to make a
grand-juryman discover the king's counsel his fellows' or his own I
should not at present say anything in support of that position. But that
I find a most ridiculous and false explanation seem to mislead some men
in that point: Say they, by the word counsel is understood, such bills
as are before the grand jury and the evidence the prosecutors for the
crown have to support the charge against the subject--Lest that being
known the party indictable may fly from justice, or he may procure false
witnesses to discredit the evidence for the king, or he may by bribes
and other indirect measures take off the witnesses for the crown.
I confess _I_ take that to be the meaning of the word counsel, but I am
certain that is not _all_ that is meant by it, that is what must be
understood when it is called the king's counsel, _id est_, the counsel
or reasons for which the king by his servants, his attorney-general or
coroner, has drawn and sent to the grand jury a charge against a
subject.
But the counsel of a juror is a different thing, it is the evidence, the
motives and reasons that induce him or his fellow-jurors to say _billa
vera_ or _ignoramus_, and the opinion he or they happen to be of when the
question is put by the foreman for finding or not finding: This counsel
every man is sworn to keep secret, that so their opinion and advice may
not be of prejudice to them hereafter, That as they are sworn to act
without favour or affection, so may they also act without FEAR. Whereas,
were it otherwise the spirit of revenge is so universal, there are but
few cases wherein a juror could act with safety to himself; either the
prosecuted, as where the bill is found, or the prosecutor, where it is
returned _ignoramus_, may contrive to defame the jurors who differ from
them in opinion: As I am told has happened to some very honest citizens
who are represented to be Jacobites since their opinions were know to be
against ----. And sometimes revenge or ambition may prompt men to carry
it further, as in the case of Mr. Wilmer, who in King Charles 2d's time
was very severely handled for being one of an _ignoramus_ jury.----
'Tis not necessary to say whom he disobliged by being so.----But if I
remember right his case was this.
He was a merchant, (and as I said, an _ignoramus_ juryman) had
covenanted with a servant boy to serve him in the West Indies, and
accordingly sent him beyond sea: Upon suggestion and affidavit by which
any person might have it, a writ _de homine replegiando_ was granted
against Mr. Wilmer; the sheriffs would have returned on the writ the
agreement and the boy's consent, but the court (in the case of this
Wilmer) Easter 34, Cha. 2. [_i.e.,_ Charles the Second] in B.R. ruled
they must return _replegiari fecimus_ or _elongavit_, that is, they had
replevy'd the boy, or that Wilmer had carried him away where they could
not find him, in which last case Mr. Wilmer, though an innocent person
must have gone to gaol until he brought the boy into court or he must
have been outlawed--Shower's Rep. 2 Part.
I do not say this that I think the same thing will be practised again,
or anything like it, though I know that very homely proverb, "More ways
of killing a dog than hanging him."--But I instance it to shew, the
counsels of every grand juryman should be kept secret, that he may act
freely and without apprehensions of resentment from the prosecuted or
prosecutor.
My resolution when I writ to you last, was, not to have said anything in
this concerning the power of dissolving or dispensing, but as I have
been forced to say something of the dispensing, for the same reason I
must of the dissolving power.--A power undoubtedly in effect including
that of returning, which makes me wish two men of great interest in this
kingdom, differing in every other thing, had not undertaken to defend
it, or they had better reasons for it than I have yet heard.
'Tis said, "This power is in the court as a right of resistance is in
the people, as the people have a power superior to the prerogative of
the prince, though no written or express law for it; so of necessity
though no statute directs it, and it may seem to overturn the greatest
security men have for their liberties, yet the court has a power of
dissolving grand juries, if they refuse to find or present as the court
shall direct."
Pray let us consider how well this concludes.