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and authority to allow, or deny, the appeal of the party pretending to be aggrieved, and also to award, order, and regulate the terms, upon which appeals shall be obtained, in such cases in which the said court may think fit to allow such appeal.” If it be objected here, that by my own concession it is the supreme court that sits in the court of oyer and terminer and gaol delivery, and that, therefore, whether it sits in sessions, or in term, it is still the same court, and can allow or deny an appeal in either indifferently—I cannot admit either the concession, ortheconsequence, after granting to the supreme court its principal jurisdiction as a Court of King's Bench; it grants that it shall also be a court of equity; it also grants that it shall be a court of oyer and terminer and gaol delivery ; then grants that it shall be a court of ecclesiastical jurisdiction—and finally that it shall be a court of admiralty. Now all these are distinct and separate jurisdictions, which ought not to be confounded. The court of equity is altogether independent of the King's Bench ; the ecclesiastical and admiralty courts are in the same degree subordinate to it, for their proceedings may be suspended by prohibition, and as to the court of oyer and terminer and gaol delivery, the trials depending there may be removed to the King's Bench by certiorari. Though these courts are all held in the some place, and by the same judges, tley are yet as distinct as if they were hold in separate places, and before different persons, and without a doubt in my mind should studiously be kept distinct. Confusion is a cepious source of error, every thing will go wrong if we confound one jurisdiction with another—But if we keep them distinct and separate, as I think we ought, and do not suffer one jurisdiction to excrcise those powers which are expressly granted to another, it will follow that this power, not being granted to the court of oyer and terminer and gaol delivery, to uomine, and expressly granted to the supreme court of judicature, it belongs solely to the latter as a court of King's Bench. Yet this power odionot be exercised by the Supreine

court without issuing a writ of certiorari to bring the proceedings before it, and without reviewing them when they are before it, to enable it to see whether the causes, assigned for appealing to the immediate justice of the crown, are sufficient to justify it in calling his majesty's attention to the case, and if the cause be sufficient, it is further necessary to review the proceedings in order to enable the court to order and regulate the terms, upon which the appeal may be allowed. Second question. Having thus given my opinion on the first question I was called upon to consider, I proceed to the second, which, situated as I am, judge of this court, and a creditor of the late nabob, is a subject of peculiar delicacy and difficulty. Having received a letter from my lord chief justice in December last, I concluded my answer with this passage:– * As I understand from Mr. Orme that the next sessions will be entirely taken up with the business of the creditors, and as I am one myself, and therefore necessarily interested, and cannot with propriety sit or act, or offer any opinion on the occasion, I trust you will have the goodness to dispense with my attendance.” Two men were to be tried at the essions for forgery, and a conspiracy to defraud the creditors of a large sum of money—this trial was the occasion I wished to avoid. In justice to my own feelings, and to my own character, as an individual, I thought it right to decline exposing myself to the suspicion that even my presence might in some degree influence the verdict of the jury —but in declining to sit and offer any opinio: npon that occasion, it was not my in ution to seal up my lips for ever ; or preclude myself from the free discharge of my duty, in giving my opinion on any general or distinct point of law that might arise out of it, nor do I think that my letter, in a fair and liberal construction, will bear that interpretation. Yet my words were quoted, and this interpretation put upon them, the other day, by my lord chief iustice in open court. Why it was put upon them is too obvious to need an answer. But to borrow an expression from his lordship upon another occasion, it would be a dereliction of duty, if after the trial was over, and no application made for a new ore, I should decline, when publicly called upon, to deliver myopinion on a general point of law, which though immediately arising from this trial, may be hereafter brought into discussion in various other instances: I will, therefore, proceed to state the question in my own way—and shall word it thus:– Whether a person, convicted at a sessions of oyer and terminer and goal delivery of a conspiracy and forgery at common law, can be reprieved before judgment is pronounced, or, being so reprieved, can be let out upon bail : as also how the forged bond ought to be disposed of 2 This, I believe, is as general and fair a way of stating the question as any man could wish. Our charter makes no provision for reprieving a prisoner convicted of any offence under felony, nor for reprieving a felon convict until sentence be passed. We must, therefore, look for authority some where else, for the charter furnishes us with nothing like it. Plowden tells us (comment. 83.) that King Henry IV. asked Gascoine, one of his judges, if a man was to kill another in his presence, and a third person was indicted for the murder and convicted, how he would act : The judge replied, he would respite judgment, because he knew the person was innocent, and report to his Majesty to grant his pardon. And the king, he says, was well pleased that the law was so. Here then is very old authority for reprieving or respiting before judgment, an authority that seems to be fully recognized by the act of 1 Ed. VI. ch. 7. Sir Matthew Hale (2 P. C. 309.) is very explicit on this subject. Speaking of the misdemeanors of juries, he says—“But what if a jury give a verdict against all reason, convicting or acquitting a person indicted against all evidence, what shall be done : I say if the jury will convict a man against or without evidence, and against time

direction or opinion of the court, the court hath this salvo, to reprieve the person convicted before judgment, and to acquaint the king, and certify for his pardon.” Now in the circumstances mentioned by Sir Matthew Hale, but confining the judges' opinion to matters of law, (2. l I. P. C. 3 13.) this is decisive of the first part of the question; and as to the second, namely, whether a convict reprieved before judgment can proerly be let out upon bail, it is easily disposed of. The charter empowers the court of oyer and terminer and gaol delivery, even in capital cases, and after judgment, to reprieve; and stating the case and evidence, and the reasons for recommending the criminal to the royal mercy, either to order the offender to be kept in strict custody, or deliver him out to sufficient bail, or mainprize, as the circumstances shall seem to require. But if the court of oyer and terminer and gaol delivery can do this in capital cases, and even after judgment has been passed, it would seem that it can do it in all minor offences, for omne majus continet in se minus— and it would the rather seem, so as this part of the charter contains no words of exclusion—it does not, for instance, say that the power shall be exercised in capital cases only, and therefore seems to give full operation to the maxim I have quoted. I have further to observe that this power vested in the court of oyer and terminer and gaol delivery, and if I am right in the opinion I have given on the first question, as I think I am, that that court is a distinct and separate jurisdiction from this: and if the due exercise of that power depends upon circumstances, it will follow, that when the proceedings have not been removed into this court, we can form no judgment whether it has been duly exercised or not, we can know nothing whatsoever of the circumstances, and therefore cannot say whether or not they were sufficient to justify the reprieve, or the admission to bail—the case is not before us. In regard to the third part of the question, namely, how the forged bond ought to be disposed of, it was moved the other day, and perhaps irregularly, as the proceedings have not been removed, that it should be lodged with the officer of the court; the bond being then, and I suppose it still is, in the hands of the commissioners for investigating the Carnatic debts. The opinion of my lord chief justice, if I understood him correctly, was, that it rested with these gentlemen to deposit the bond in court or not, as they should think proper. He said it could not be in safer hands than with the officers of the court; but that they were to use their discretion in the matter, that he would not order it. His lordship said he considered the bond, although tainted, to be still an outstanding claim ; and that, notwithstanding the verdict which pronounced it to be a forgery, he thought the commissioners were competent to exercise their judgment upon it, and to recommend it as a good and a valid bond, if they thought proper so to do, but that it would be a dereliction of duty if they suffered the verdict to influence their judgment in the investigation of that claim. This, I think, was the substance of what fell from his lordship; if I have any thing misconceived his meaning I shall be thankful to him to set me right —these sentiments fell from him in the warinth of argument, and I should be extremely sorry to impute them to him, unless, on reflection, he should think proper to avow them—but I must withhold my assent, as they stand at present, and should deem myself unworthy of the place I occupy on this bench, did I not express my warm dissent to sentiments, openly delivered, which, if adhered to, seem to me to be fraught with public inconvenience. It is impossible to say what may be the result of the reference to his Majesty—he may refuse to grant a pardon altogether—and it is n.ost likely he will, as I believe he has never yet been known to pardon the cline of forgery, and in that event judgment must not only be pronounced, but the bond cancelled (3 inst. G0), for all prosecutious of forgery have two objects in view, to defeat the criminal intention of the offender, where that intention has not

punish him for the means he employed to effect it—to inflict the punishment and yet to leave it in his power to effect his criminal intention would be absurd; and therefore, in cases of forgery, the court commonly takes care, by cancelling the forged paper, or delivering it up to the prosecutor for that purpose,

that an improper use shall not be made

of it; should then a refusal of pardon be the result of a reference to the crown, where shall we look for the forged bond, if it be suffered to remain with the commissioners; for these gentlemen act under instructions from the commissioners in England, by whom they are directed to transmit to them all bonds upon which any claim is founded. Should his Majesty, there. fore, be advised to adhere to his resolution not to pardon forgery, and orders come out to us to proceed to judgment, are we to send to England for the bond? The court ought not, surely, to expose itself to this inconvenience, nor to the far greater, perhaps, of rendering future judgment wholly ineffectual by seeing this bond acknowledged by the commissioners as a just claim, and put in a train of payment—a bond which, after a full defence, has been pronounced by a British jury to be a forgery; and the evidence brought in support of it, has been, by another jury, pronounced to be wilful and corrupt perjury. Should the commissioners be encouraged to venture so far as this, should they be led to hold the verdicts of two grand juries and two petit juries in such disregard as to declare this bond an honest and fair claim, shall we be justified in the eyes of our sovereign and out country, in assisting to lead them into error, by leaving it in their power so to do It is our duty, I think, to guard against the possibility of such a conduct: it is also our duty to await the result of the reference to his Majesty, and to have every thing in readiness to obey the royal orders as soon as we receive them—should the king be pleased so far to extend his mercy to the offenders as to grant them a conditional pardon, and the condition be that the forged bond shall be cancelled— How shall we carry his orders into exe

rench,--if it is not in our actual custody and power Why the officer of the court was permitted to return it to them I know not, but by suffering it to remain in the hands of the commissioners, we place ourselves in the situation of not being able to conform to the orders he may think proper to send to us---and why draw this inconvenierce on ourselves, when we have it in our power to avoid it, by directing that the bond be lodged with the officer of the court. At the same time that we draw a great inconvenience on ourselves by suffering the bond to remain in their hands, we expose them to solicitations and importunities to pass it as fair demand, which, in my opinion, ought to be avoided---for these gentlemen are not placed above the law---their powers of decision arise solely from the deed between the company and the creditors, which is neither ratified nor confirmed by parliament, as is evident from the 9th clause of the act--they are liable, like all other trustees, to suits for abuse of trust, and should not, I think, be unnecessarily exposed to it, nor to the serious inconvenience of admitting in the list of claims, which they are bound, through the commisstoners in England, to lay before the two houses of parliament at every sessions, with the grounds of their decision, that they passed this bond, or recommended it to be passed, in direct opposition to the verdict of a British Jury—for these reasons I am clearly and strongly of opinion that an order should be made for depositing the bond with the officer of the court.—I shall close what I had to say on this question by observing,

that though a creditor of the late nabob,

I am not, at present, in the smallest degree, interested in this bond. The verdict of a British jury having pronounced it to be a forgery, even the semblance of validity is for ever gone, and by its validity only could my interests be affected. Though the verdict has not had the aid of judgment, its propriety has not been questioned by the defendants themselves, and, by not praying a new trial, which might have been granted, they have acknowledged

crime of forgery may, perhaps, be pārdoned; but no pardon can stamp a value on the bond—that will for ever remain a tainted, and, I may venture to say, an useless, paper : for the cominissioners in England, with whom the final decision rests, on all the Carnatic claims, will unquestionably hold the trial by jury, that great palladium of our liberties, in too much veneration, to allow the opinions of any individuals here to be put in competition with the verdict of twelve men upon their oaths, nor would it, I apprehend, be suffered by parliament, to whom they undoubtedly are accountable. The quotation from my letter will, therefore, I trust, miss its evident aim—to cast on my opinion, if I should venture to give one, the imputation of interest ; but I am too well known in this settlement to have my integrity brought into question. I am not now interested in the fate of this bond, nor was I from the moment the justice of the verdict was acknowledged, by neither moving for a new trial, nor an arrest of judgment. I am neither interested in it myself, nor is any one connected with me. Third question.--- As to the question, whether the prayer of Mr. Marsh, for an order from this court to print the late trials, ought to be granted or not. I think that as these trials are not before this court, but before the court of oyer and terminer and gaol dedelivery, the application would more properly be made to that court; but, perhaps, as this is not a question of law, and my lord chief-justice, before whom the men were tried, presides here, we may, placing a perfect confidence in Mr. Marsh's ability and correctness, give him leave to print them : but what end will our permission answer, if there exists any where, within the settlement, a power to controul the liberty of the press ---He has already applied to the chief secretary of government for leave to publish them, and has ieceived for answer, that it is not thought expedient, and nothing more ; no reason given why it should not be printed; but it sometimes is not convenient to assign reasons ---The chief secretary could not have said, that

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power to revive the act of Charles II. for restraining the liberty of the press. That act, after two revivals, expired about 100 years ago, and all the efforts of king William, that great favourite of the nation, were not sufficient to prevail on parliament to revive it again. Parliament knew too well the value of a free press to put it under any other restriction, than that already imposed on it by the law of libels. The chief secretary might, perhaps, have said that government had been for many years in the exercise of a power to restrain the press; by prohibiting the publication of any thing that may create private uneasiness, or public ferment; and that the settlement had so long acquiesced in the assumption of this power, that it had grown into a right, which they now thought propel to exercise ; allowing fo a moment that the acquiescence of the settlement for twenty or twenty-five years past, (for beyond that period there was no press at Madras) could confer such a right. It was limited to the newspapers, and never extended, nor meant to be extended, to the length to which it would now be carried. In the case of the King against Paupiah and others, many years ago, for a conspiracy against Mr. David Haliburton, no such right was pretended to ; that trial was printed and published at Madras, and no objection whatsoever made to it on the part of government, even though the governor and council were then judges of oyer and terminer, and formed the court before whomon. defendant was tried. They were not lawyers, and were, therefore, liable to errors in judgment, which they might not have wished to have exposed to the observation of the public. But no objection whatever was made.---The other day at Calcutta the trial of Mr. Tucker, for an assault on a married lady, with intent to commit a rape, was printed and published. At Bombay all the trials of consequence are printed in the public papers--Imany have appeared in the public popers of Bengal, and some have lately appeared in our own Why then object to a publication of the late trial Are the characters and conduct of the men

to ied like a lady's far, a tor, eaco, , , , ,

be mentioned or are the public less interested in being acquainted with the circumstances which came out on their trials, than they were in those which have at various times already appeared 3–Nothing of this kind could possibly be the cause of refusing to let those trials be made public.—We must, therefore, look to something else—perhaps to an apprehension of improper interference in the suits of other men, approaching, may possibly amounting, to maintenance “ an offence” as Blackstone informs us (4 Com. 135) “ against public justice, as it keeps alive strife and contention, and perverts the remedial process of the law into an engine of oppression, and therefore, by the Roman law, it was a species of the crimen falsi to enrer into any confederacy, or to do any act to support another's law suit, by money, witness, or patronage."— The excellent lawyer and upright Judge, who quitted us last October, noticed a similar imprudence in the case of Abbot v. Hussain-ul-Moolk, and pronounced it from the bench to be maintenance. If, then, the secret reason of thinking it inexpedient to permit the publiccation of these trials, was to prevent

the exposure of their falling a second

time into the same error, it was certainly prudent—But more prudence would have been shewn, if they had taken the blunt hint of sir Henry Gwillim, and avoided the error altogether.—I was for three-and-twenty years a confidential servant of the company under this government, and feel an habitual leaning towards them —I am not, therefore, inclined to impute any thing to them beyond imprudence—but imprudent, I am afraid, they have been, in taking any part in a cause, which seemed to call on them for a steady and determined neutrality—and had I still been their attorney-general, this is the conduct I should have advised.—All this, however, may soon be overlooked and forgotten, if the error be not farther repeated; but the unauthorized restriction of the press cannot be so easily passed over. It is the dearest privilege

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