and contempt of the court-leet, and sheriff's tourn, the king's ancient court of Common Law, formerly much revered and respected. 2. The burdensome increase of the business of a justice of the peace, which discourages so many gentlemen of rank and character from acting in the commission, from an apprehension that the duty of the office would take up too much of that time, which they are unwilling to spare from the necessary concerns of their families, the improvement of their understandings, and their engagements in other services of the public. Though if all gentlemen of fortune had it both in their power and inclinations to act in this capacity, the business of a justice of the peace would be more divided, and fall the less heavy on individuals; which would remove what in the present scarcity of magistrates is really an objection so formidable, that the country is greatly obliged to any gentleman of figure who will undertake to perform that duty, which, in consequence of his rank in life, he owes more peculiarly to his country. However, this backwardness to act as magistrates, arising greatly from this increase of summary jurisdiction, is productive of a third mischief; which is, that this trust, when slighted by gentlemen, falls of course into the hands of those who are not so, but the mere tools of office; and then the extensive power of a justice of the peace, which even in the hands of men of honor is highly formidable, will be prostituted to mean and scandalous purposes, to the low ends of selfish ambition, avarice, or personal resentment. From these ill consequences, we may collect the prudent foresight of our ancient lawgivers, who suffered neither the property nor the punishment of the subject to be determined by the opinion of any one or two men; and we may also observe the necessity of not deviating any further from our ancient constitution, by ordaining new penalties to be inflicted on summary convictions."—4 Bla. Com. 281, 14 Edn. "It" (meaning this summary jurisdiction of justices of the peace) "has of late been so far extended, as, if a cheek be not timely given, to threaten the disuse of our admirable and truly English trial by jury, unless only in capital cases."—4 Bla, Com.

280.

Forget not, Sir, these last words "unless only in capital cases," for they conduce most essentially to the development of the object of the second section of your Act! With respect to the extension of this jurisdiction, even in civil cases, he says:

"It is to be feared that the general remedy, which of late hath been principally applied to cure the inconvenience arising from the disuse of the ancient county and hundred courts, may itself be attended in time with very ill consequences; as the method of proceeding therein is entirely in derogation of the Common Law;

as their discretionary powers create a petty tyranny in a set of standing commissioners; and as the disuse of trial by jury may tend to estrange the minds of the people from that valuable prerogative of Englishmen, which has already been more than sufficiently excluded in many instances."-3 Bla. Com. 82. Again, for the very purpose of deterring future legislators from invading the Common Law, he says: "It hath been an ancient observation in the laws of England, that wherever a standing rule of law, of which the reason, perhaps, could not be remembered or discerned, hath been wantonly broken in on by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation."

The standing rule of law, Sir, which your Act has broken in on, was the immemorial law of England, even at the date of Magna Charta. Its reason and its wisdom were so well remembered and discerned, that it had survived the cruel invasions of the Danes, and even the Conquest itself, and so endeared was it to our forefathers, that they, at the risk of their property and their lives, sword in hand, demanded and obtained its recognition and confirmation; and so jealous were their descendants of the least innovation of it, that in the course of a very few succeeding reigns there are no less than thirty instances of its confirmation. It has for nearly six hundred years since that period survived the political convulsions of our country; and scarcely has there been a writer on our law, or a judge on the bench, who has not admitted, nay, even eulogised its excellence and perfection. Of course I must except those, who attempted to confer on us the blessings of the Civil Law, to whom our ancestors made this noble reply: "that they would not change the laws of England, which had hitherto been used and approved? But for their patriotic opposition to its introduction, England would not now boast of the pre-eminence of her civil and religious institutions over those of the other nations of Europe. Would to God, Sir, that the people of England had made to you a similar reply!

"

On the subject of trial by jury the learned commentator says: "that it is that trial by the peers of every Englishman, which, as the grand bulwark of his liberties, is secured to him by the Great Charter. No freeman shall be taken, or imprisoned, or be disseised of his freehold or his liberties or free customs, or be outlawed or exiled, or in any otherwise destroyed, nor will we pass on him nor condemn him, unless by the lawful judgment of his peers, or by the law of the land."'

Perhaps you, Sir, who are a legislator, know that these latter words" by the law of the land," mean by indictment or presentment of good and lawful men.

"The antiquity and excellence," says he, "of this trial for the settling of civil property has before been explained at large; and it will hold much stronger in criminal cases: since in times of difficulty and danger, more is to be apprehended from the violence and partiality of judges appointed by the crown in suits between the king and the subject, than in disputes between one individual and another to settle the metes and boundaries of private property. Our law has therefore wisely placed this strong and twofold barrier, of a presentment and a trial by jury, between the liberties of the people and the prerogatives of the crown. It was necessary for preserving the admirable balance of our constitution to vest the executive power of the laws in the prince; and yet this power may be dangerous and destructive to that very constitution, if exerted without check or control by justices of oyer and terminer occasionally named by the crown: who might then, as in France or Turkey, imprison, dispatch, or exile any man that was obnoxious to the government, by an instant declaration, that such is their will and pleasure; but the founders of the English law have, with excellent forecast, contrived, that no man should be called to answer to the king for any capital crime, unless on the preparatory accusation of twelve or more of his fellow-subjects, the grand jury; and that the truth of every accusation, whether preferred in the shape of an indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals or neighbors, indifferently chosen, and superior to all suspicion. So that the liberties of England cannot but subsist, so long as this palladium remains sacred and inviolate; not only from all open attacks (which none will be so hardy as to make), but also from all secret machinations, which may sap and undermine it, by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of revenue, and courts of conscience. And however convenient these may appear at first (as doubtless all arbitrary powers, well executed, are the most convenient), yet let it be again remembered, that delays and little inconveniences in the forms of justice, are the price that all free uations must pay for their liberty, in more substantial matters: that these inroads on the sacred bulwark of the nation, are fundamentally opposite to the spirit of our constitution; and that though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern."-4 Bla. Com. 348.

"Trial by jury ever has been, and I trust ever will be, looked on as the glory of the English law; and if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened, when it is applied to criminal cases!

It is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected, either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals. A constitution, that I may venture to affirm has, under Providence, secured the just liberties of this nation for a long succession of ages; and therefore a celebrated French writer (Montesquieu) who concludes, that because Rome, Sparta, and Carthage, have lost their liberties, therefore those of England in time must perish, should have recollected that Rome, Sparta, and Carthage, at the time when their liberties were lost, were strangers to trial by jury."

"Great as this eulogium may seem, it is no more than this admirable constitution, when traced to its principles, will be found in sober reason to deserve. The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society; but if that be entirely intrusted to the magistracy, a select body of men, and those generally selected by the prince, or such as enjoy the highest offices in the state, their decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity: it is not to be expected from human nature, that the few should be always attentive to the interests and good of the many. On the other hand, if the power of judicature were placed at random in the hands of the multitude, their decisions would be wild and capricious, and a new rule of action would be every day established in our courts. It is wisely therefore ordered, that the principles and axioms of law, which are general propositions, flowing from abstracted reason, and not accommodated to times or to men, should be deposited in the breasts of the judges, to be occasionally applied to such facts as come properly ascertained before them. For here partiality can have little scope: the law is well known, and is the same for all ranks and degrees; it follows as a regular conclusion from the premises of fact preestablished. But in settling and adjusting a question of fact, when intrusted to any single magistrate, partiality and injustice have an ample field to range in; either by boldly asserting that to be proved which is not so, or by more artfully suppressing some circumstances, stretching and warping others, and distinguishing away the remainder. Here therefore a competent number of sensible and upright jurymen, chosen by lot from among those of the middle rank, will be found the best investigators of truth, and the surest guardians of public justice. For the most powerful individual in the state will be cautious of committing any flagrant invasion of another's right, when he knows that the fact of his oppression must be examined and decided by twelve indifferent

men, not appointed till the hour of trial; and that, when once the fact is ascertained, the law must of course redress it. This, therefore, preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens. Every new tribunal erected for the decision of facts, without the intervention of a jury (whether composed of justices of the peace, commissioners of the revenue, judges of a court of conscience, or any other standing magistrates), is a step towards establishing aristocracy, the most oppressive of absolute governments. The feodal system, which for the sake of military subordination pursued an aristocratical plan in all its arrangements of property, had been intolerable in times of peace, had it not been wisely counterpoised by that privilege so universally diffused through. every part of it, the trial by the feodal peers. And in every country on the continent, as the trial by the peers has been gradually disused, so the nobles have increased in power, till the state has been torn to pieces by rival factions, and oligarchy in effect has been established, though under the shadow of regal government; unless where the miserable commons have taken shelter under absolute monarchy, as the lighter evil of the two. And, particularly, it is a circumstance well worthy an Englishman's observation, that in Sweden the trial by jury, that bulwark of northern liberty, which continued in its full vigor so lately as the middle of the last century, is now fallen into disuse; and that there, though the regal power is in no country so closely limited, yet the liberties of the commons are extinguished, and the government is degenerated into a mere aristocracy. It is therefore, on the whole, a duty every man owes to his country, his friend, his posterity, and himself, to maintain to the utmost of his power this valuable constitution in all its rights; to restore it to its ancient dignity, if at all impaired by the different value of property, or otherwise deviated from its first institution; to amend it wherever it was defective; and above all to guard with the most jealous circumspection against the introduction of new and arbitrary methods of trial, which under a variety of plausible pretences may in time imperceptibly undermine this best preservative of English liberty.” -3 Bla. Com. 378.

The question between us, Sir, is one of fearful, of awful import; it vitally concerns even the humblest individual of the state; on its issue, perhaps, depend the future liberties of our country. To enable every man truly to appreciate your merit as a legislator, and to pass judgment between us, I have quoted largely from authorities long recognised, respected, and revered by the first lawyers. of the age. Sir Edward Coke was lord chief-justice of the