I hear some precedents have been lately found out to justify that memorable action; but if precedents must control reason and justice, if a man may swear he will keep his counsels secret, and yet by precedents may be forced to divulge them, I would advise gentlemen very seriously to consider, the danger we are in; and examine what precedents there are on each side of the question, for my part I think the commons of England are not a worse precedent than the judges of England.
Besides it must be remembered that precedents in some cases will not excuse a judge, even where they are according to the undoubted law of the land, as for instance,
Suppose a man says what is true, not knowing it to be true, though it be logically a truth as it is distinguished, yet it is morally false; and so, suppose a judge give judgment according to law, not knowing it to be so, as if he did not know the reason of it at that time, but bethought himself of a reason or precedent for it afterwards, though the judgment be legal and according to precedent, yet the pronouncing of it is unjust; and the judge shall be condemned in the opinions of all men: As happened to the Lord Chief Justice Popham a person of great learning and parts, who upon the trial of Sir Walter Raleigh; when Sir Walter objected to reading or giving in evidence, Lord Cobham's affidavit, taken in his absence, without producing the lord face to face, the lord being then forthcoming: The chief justice overruled the objection, and was of opinion it should be given in evidence against Sir Walter, and summing up the evidence to the jury the chief justice said, "Just then it came into his mind why the accuser should not come face to face to the prisoner, because, &c." Now if any judge has since found precedents, or has since picked up the opinion of lawyers, I fear he will come within the case I have put.
I foresee, if ever this question happens to be debated, you know where, gentlemen will be divided; Some will be desirous to do their country justice and free us from all future danger of this kind; Others upon motives not quite so laudable, will strive to screen, and with others private friendship will prevail: But I would recommend to your friends, who really love their country, to consider the several circumstances concurring in your lordship which probably may not in your successor: Let them suppose a person were to fill your place, from whose manifest ignorance in the law, we may reasonably conclude, his only merit is an inveteracy and hatred to this country. I say how could your best friends excuse themselves, if in regard to your lordship they should suffer such a precedent to be handed down to such a man unobserved or uncensured?
Invenit etiam aemulos infaelix nequitia—Ambitious men have not always been deterred by the unhappy fate of their predecessors, Quid si floreat vigeatque? But what lengths will they run if injustice and corruption shall ride triumphant?
Had somebody received a reprimand upon his knees in a proper place, for treating a printer's jury like men convict of perjury, forcing them to find a special verdict, I dare to say he had not been quite so hardy as to have discharged the grand jury or treated them in the manner he did, because they had not an implicit faith in the court; nor had he dared not to receive a presentment made by the second grand jury against Wood's farthings upon pretence it was informal, which I mention because the worthy Drapier has mistaken the fact.
Some of your lordship's screens I hear advise you to shew great humility and contrition for what's past, as the only means to appease the just indignation all sorts of men have conceived against you.——Were I well secured you will not recommend this letter to the next grand jury to be presented, I could give you more seasonable advice, but happen as it may I will venture to give you a little.
Fawning and cajoling will have but little effect on those who have had the honour of your acquaintance these ten years past, for Caligula who used to hide his head if he heard the thunder, would piss upon the statues of the gods when he thought the danger over—A better expedient is this,——
Tell men the Drapier is a Tory and a Jacobite.—That he writ "The Conduct of the Allies."—That he writ not his letters with a design to keep out Wood's halfpence, but to bring in the Pretender; persuade them if you can, the dispute is no longer about the power of judges over juries, nor how much the liberty of the subject is endangered by dissolving them at pleasure, but that it is now become mere Whig and Tory, a dispute between His Majesty's friends and the Jacobites, and 'twere better to see a thousand grand juries discharged than the Tories carry a question though in the right.—Haec vulnera pro libertate publica excepi, hunc oculum pro vobis impendi. Try this cant, pin a cloth over your eyes, look very dismal, and cry, "I was turned out of employment, when the Drapier was rewarded with a Deanery," I say, my lord, if you can once bring matters thus to bear, I have not the least doubt you may escape without censure.
To your lordship's zeal and industry without doubt is owing, that the Papists and the Tories have not delivered this kingdom over to the Pretender, so Caesar conquered Pompey that Legum auctor et eversor, and 'twas but just the liberty and laws of Rome should afterwards depend upon his will and pleasure.——The Drapier in his letter to Lord Molesworth has made a fair offer, "Secure his country from Wood's coinage," then condemn all he has writ and said as false and scandalous, when your lordship does as much I must confess it will be somewhat difficult to discover the impostor.