ment on the constitution. Attempts, it wil appear, were formerly made, and for a time successfully, to deprive the people of this safeguard; but just and rigorous penalties were visited on the offenders, which "remain upon record as monuments of their infamy to be a terror to all that shall succeed them.

"It were an endless work, (says Lord Somers) to recite all the examples of this kind that are found in our histories and records; but that of Empsom and Dudley must not be omitted. They had craftily contrived to abolish grand juries, and to draw the lives and estates of the people into question without indictments by them; and by surprise, and other wicked practices, they gained an act of parliament for their countenance. Hereupon false accusations followed without number; oppression and injustice broke forth like a flood; and to gain the king's favour, they filled his coffers. The indictments against them, mentioned in Anderson's Reports, p.p. 156, 157, are worth reading; whereby they are charged with 'treason, for subverting the laws and customs of the land in their proceedings without grand juries, and procuring the murmuring and hatred of the people against the king, to the great danger of himself and the kingdom.'. Nothing could satisfy the kingdom, though the king was dead, whom they had flattered and served but such justice done upon them, and many of their instruments and officers, AS MAY FOR EVER MAKE THE EARS OF JUDGES TO TINGLE!"

And it seems that for a time this "justice" produced its intended influence:-the ears of the judges were made to tingle! "It is not to be forgotten (continues Lord Somers) that the judges in Queen Elizabeth's time, in the case of R. Cavendish, were, (as they told the Queen and her counsellors) by the punishment of former judges, especially of Empsom and Dudley, deterred from obeying her illegal commands. The Queen had sent several letters under her signet; great men pressed them to obey her patent under the great seal; and the reasons of their disobedience being required, they answered, "That the Queen herself, and the judges also, had taken an oath to keep the laws; and should obey her commands, the laws would not warrant them, and they should break their oath, to the offence of God and their country and the commonwealth, wherein they were born;" "and (say they) if we had no fear of God, yet the examples and punishment of others before us, who did offend the laws, do remember and recall us from the like offences!"

they

Judges are seldom forward to acknowledge that illegal commands may proceed from Royalty; and that such commands are not to be obeyed. But whatever might be the mode in which the offences of the wicked predecessors of these judges were committed; by whatever circumstances of aggravation they were attended; the essence of them appears to have been "proceedings without grand juries." This was the "treason;" this

the "subverting of the laws and customs of the land;" it was thus that they procured "the murmurings of the people against the king;" it was for this that they were consigned to an ignominious death!

And it might be difficult to point out any essential distinction between the proceedings without grand juries which were thus so severely visited by our ancestors, and those which are now pursued, not only with impunity, but with the full sanction of authority. It is true, Sir William Blackstone tells us of a power of proceeding by information having been reserved in the plan of our constitution; but it is evident, that in his apprehension it was reserved for extreme cases; that a day by day resort to it was not contemplated; and least of all in cases which, so far from being urgent, are often deferred for trial from term to term at the instance of the prosecutor. But we will quote that learned Judge's words:-"The objects of the king's own prosecutions, filed ex officio by his own Attorney-general, are properly such enormous misdemesnors as peculiarly tend to disturb or endanger his government, or to molest or affront him in the regular discharge of his royal functions. For offences so high and dangerous, in the punishment or prevention of which a moment's delay would be fatal, the law has given the crown the power of an immediate prosecution, without waiting for any previous application to another tribunal; which power, thus necessary, not only to the ease and safety, but even

to the very existence of the executive magistrate, was originally reserved in the great plan of the English constitution, wherein provision is wisely made for the due preservation of all its parts." B. 4. p. 308.

It is needless to remark, that prosecutions by information are now resorted to on occasions which bear no resemblance to this description of the cases for which they were reserved; and if there be in reality any sufficient reason to justify so extensive an encroachment on constitutional rule, it is to be regretted that it is not better understood. At a period when the exercise of this power is so alarmingly frequent, one might imagine that the individual to whom it is confided. would be anxious to reconcile it with some acknowledged principle; to relieve himself from the imputation and responsibility which ever attach to official discretion; to place his conduct above suspicion; to prove to his country that he is actuated, not by a malignant spirit of vengeance against those who have merely offended him or his patrons; but by an honest desire to maintain inviolate the genuine spirit of the law: that he does not seek to impute that as an offence, which may be highly meritorious; but to bring down upon him who has been guilty of a known crime, the certain punishment which awaits it. For a man so situated, to entertain good intentions, is very far from sufficient; the public ought to have the means of being abundantly satisfied as to the fact, (be his intentions good or evil,) that no injustice has been

committed; that no innocent man has been wrongfully accused. And no mode of affording this satisfaction can be so sure and so unexceptionable as that which the constitution has ordained,-an appeal to the judgment of indifferent men-the Grand Inquest, on whom it was designed that "the whole stream of justice in such cases" should depend.

And this appeal is more peculiarly necessary in the cases in which it is denied, on account of the extremely uncertain nature of the offence; for "if the law has an uncertain sense, who shall obey it?" In these circumstances, the anxiety manifested by the law of England, "not less for the reputation of the subjects, than for their lives and estates," possesses its highest value. Incalculable urgency is conferred upon "the reason why, in such cases, a man should not be brought to an open legal trial by a petit jury, till the grand jury have found the bill." Yet, although the assembled wisdom of parliament" was no long time ago employed in a vain endeavour to produce a legal definition of a libel, it is now altogether left to the discretion of the individual who happens to fill the office of Attorney-general, to determine as to the offence, and the evidence by which the charge is to be supported! The reputation of the accused is so far at the mercy of this officer; who may bring him at once to a public trial and although he may be eventually acquitted, he is involved in certain expense and anxiety, for which he can have

66