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.