unconnected with the defendant had published a pamphlet, and distributed it in Wales, inculcating the doctrine that the jury, in cases of libel, are judges of the law as well as of the fact, and may return a verdict of not guilty, although the act of publication was proved, if they should be of opinion that the alleged libel contains nothing libellous. Erskine very indignantly resisted the application, but was overruled by the Chief Justice. The Dean of St. Asaph made an affidavit, showing that the supposed libel, which was a very harmless explanation of the principles of representative government, had been written by Sir William Jones, lately appointed an Indian Judge, and that the prosecution was maliciously instituted by an individual after the government, by the advice of the Attorney and Solicitor-Generals (Mr. Wallace and Mr. Lee), had refused to prosecute, and that he himself was not in any degree privy to the circulation of the pamphlet respecting the rights of juries. This affidavit being read and commented upon by counsel, the defendant himself interposed, and earnestly implored that he might be allowed then to take his trial:

Kenyon, C. J.: "Modus in rebus †-there must be an end of things."

Dean of St. Asaph: “Think, my Lord, of the anxiety I have suffered and the expense I am put to. Let me stand or fall by the decision of this jury: let me, if innocent, once more stand up as an honest injured man; if guilty, let me be dragged to a dungeon."

Kenyon, C. J.: "When the jury have given their verdict, if they find you guilty, the Court will then consider what judgment to pass."

Dean of St. Asaph: "My Lord, in God's name let me have a

*The Chief Justice professed great respect for Mr. Wallace, with whom he had several times exchanged the office of Attorney-General, but was highly offended by his opinion being stated that

the "Dialogue" was not a libel.

+ This classical quotation his Lordship was in the habit of introducing when he thought it was full time to put an end to any discussion.

verdict one way or the other. Don't let me be kept longer in suspense."

Kenyon, C. J.: "I desire that after I have given the judgment of the Court, that judgment may not be talked about; I have given it upon my oath, and I am answerable to my country for it. I have been before reminded that these things are not passing in a corner, but in the open face of the world. If I have done amiss, let the wrath and indignation of parliament be brought out against me; let me be impeached. I am ready to meet the storm whenever it comes, having at least one protection -the consciousness that I am right. In protection of the dignity of the Court, I do the best thing I can do for the public; for if my conduct here is extra-judicially arraigned, the administration of justice is arraigned and affronted, and that no man living shall do with impunity."

So the trial was postponed,—and when the case was entered again at the Great Sessions in April, 1784, Erskine a second time attending as special counsel for the defendant, it was removed by certiorari, and it came on before Judge Buller at the Shrewsbury Assizes in August of the same year-when the ever-memorable struggle took place between Erskine and Mr. Justice Buller.*

*21 St. Tr. 847.

CHAPTER XLIII.

CONTINUATION OF THE LIFE OF LORD KENYON TILL HE WAS APPOINTED CHIEF JUSTICE OF THE KING'S BENCH,

Kenyon is made Master

of the Rolls.

IN the spring of 1784 died Sir Thomas Sewell, who had been many years Master of the Rolls, and Mr. Kenyon claimed the vacant office, which was conceded to him. He rather wished to have withdrawn from Parliament altogether, feeling that he was unfit for it; but, luckily for him, the Secretary for the Treasury insisted upon his finding himself a seat, that he might swell the ministerial majority expected in the new House of Commons. yet Mr. Pitt had no high opinion of him, and had reluctantly agreed to his being restored to his office of Attorney-General and to his promotion to be Master of the Rolls. But he was endeared to the Premier by his services connected with the Westminster election.

As

Kenyon fulfilled his engagement with the government by purchasing his return for the borough of Tregony, and he could not have been blamed if, thinking little more of politics, he had simply attended to vote when he received the Treasury circular; but being compelled to disburse a large sum for his seat, he declared (in American phrase) that "he was resolved to go the whole hog." He therefore became a most zealous partisan, and strove to make himself conspicuous as a supporter of the government. His influence was now great among his countrymen in Wales, and he was able to procure votes for the ministerial candidate in several counties and boroughs within the limits of his juris

diction as Chief Justice of Chester. These services, however, were little noticed, compared with those which he rendered in the election for the city of Westminster. The grand object was, that Mr. Fox might appear to be rejected by his former constituents, and that the disgrace should be heaped upon him of being turned out by a man so obscure and ridiculous as Sir Cecil Wray. His Honour, the new Master of the Rolls, now occupied a house in Lincoln's Inn Fields, beyond the limits of the city and liberties of Westminster; but his stables behind the house were in the parish of St. Clement Danes, within the "Liberties," and for these he was rated and paid scot and lot. But, unfortunately, he could not as yet be said to be an inhabitant of the city or liberties. To get over this difficulty, he had a bed fitted up in the hay-loft over his stables; His vote in there he slept several nights, and then he minster went to the poll, and gave a plumper for election. Cecil Wray.

the West

respecting

tiny."

Such a proceeding might be justified or excused, but I am sorry to be obliged to condemn, in The bad adunqualified terms, the advice which he gave vice he gave respecting the "Scrutiny." This proceeding the "Scrubrought great and deserved obloquy upon the Prime Minister, whose character was yet so fair, and Kenyon's support of it was reprobated even by one of the most zealous and able lawyers on the ministerial side.

After the election had lasted forty days, Mr. Fox had a considerable majority over Sir Cecil Wray; but, at the return of the writ, the High Bailiff, instead of returning him with Lord Hood, who was at the head of the poll, corruptly granted a scrutiny, and stated, in answer to the mandate requiring him to return two citizens to serve for the city of Westminster, that “he should proceed with the scrutiny as expeditiously as

possible." According to the rate at which it was advancing, the calculation was that it could hardly finish before the end of the Parliament, and that it would involve Mr. Fox in an expense of 20,000l. Several motions were made in the House of Commons, that the High Bailiff should be ordered to make an immediate return. In opposing these the Master of the Rolls took the lead, and he contended "that the scrutiny was perfectly legal; that it might be continued after the return of the writ; that the High Bailiff could not properly make a return till he had satisfied his conscience which of the two candidates had the majority of good votes; that he ought to have the requisite time for this purpose, and that to force him to make an immediate return would be contrary to the maxim of justice, never to be forgotten-audi alteram partem." His Honour likewise mixed up his juridical argument with bitter invectives against the "Coalition," citing several passages from Mr. Fox's speeches during the American war, in which he had asserted that Lord North ought to be impeached and punished. Mr. John Scott (afterwards Lord Eldon), although a warm admirer and generally a steady supporter of Mr. Pitt, took a totally different view of the subject, and contended that both by common law and statute law the election must be finally closed before the return of the writ, so that the subsequent scrutiny was unlawful. Said he :

Honourable conduct of Lord Eldon

on this occasion.

"A very unnecessary tenderness is shown for the conscience of the High Bailiff. There will be no torture administered to it by compelling him to make a return before he has finished his scrutiny, for his oath only binds him to act according to the best of his judgment, and to return the candidate that has the majority of admitted votes. I confess I do not like that conscience in returning officers, under colour of which they may prevent the meeting of parliament for ever, or at least present the nation with the rump of a parliament on the day when the representatives of the whole nation ought to assemble."