makes an end of the case, for this is a previous question and the foundation of the defence fails," and judgment was affirmed. The counsel for the defendants in error appear to have sat by silently. This occurrence was very much like another which happened on the new trial which was ordered in Woodfall's case, a few years afterwards. The case was no doubt very gravely called on and the jury solemnly sworn, when the "Attorney General observed to the Chief Justice (Lord Mansfield) that he had not the original newspaper by which he could prove the publication. His Lordship laconically replied, 'That's not my fault, Mr. Attorney,' and in this manner the trial ended." 20 St. Tr. 897.

After the case of Leach vs. Money had thus gone off in the K. B. in Nov. 1765, the second rule against Almon was never heard of again. The ministry went out and the Rockingham administration came in. In C. B. however, the case of the general warrants went on in the case of Entick vs. Carrington and their illegality was established. So no judgment was ever given in Almon's case. The first rule went off on the flaw in the papers, though Almon's counsel seem not to have started that objection. It is said in the Annual Register that "about the middle of June (T. term) the judges called for the defendant's counsel, and, in the course of much altercation, repeatedly desired their consent to an amendment in the rule; where instead of the King against Almon, it was put the King against Wilkes. But to this the defendant's counsel very firmly refused to consent." This would have been a convenient way to have got rid of that proceeding too, but the Crown officers refused to yield and took a new rule upon the old charge, which they reinforced with "fresh matters of accusation." This rule died away with their political power and sleeps upon the files of the court to this day.

Mr. S. said that he considered that the result of these measures of the Ministry carried great weight against the argument of the Respondent's counsel. It was a decisive triumph over the Crown officers in both proceedings; and so far as any inference at all could be drawn, it was decidedly against the Respondent's case. The case of general warrants also showed how little respect was due to the vicious precedents which may be found in many parts of English history in support of arbitrary and unconstitutional assumptions of power. These warrants were well sustained by an almost uninterrupted practice, from the time of the Star Chamber down to the publication of the offensive number of the North Briton; and that circumstance was very properly stated by the Judge at the trial, as a ground for mitigating the damages. the proceeding against Almon had no precedents later than the Star Chamber itself. The Crown officers had none to cite.

But

Mr. S. then said that in looking carefully to the facts and dates in Almon's case, it might be well doubted, after all, whether it would have supported the power claimed by the Respondent, even if Almon had been attached at last and punished by summary conviction. The charge against him was of a libel on Lord Mansfield in reference to an amendment at his chambers in the Informations against Wilkes. The informations against Wilkes were filed in Michaelmas Term 1764, and Wilkes appeared and pleaded not guilty. Lord Mansfield made the orders for the amendments on the 20th of February, and the causes were tried on the 21st day of February 1764, and the verdicts taken before him at ni i prus. Writs of capias were issued (Mr. Wilkes being in France) as in ordinary cases of convictions and the proceedings went on to outlawry before the sheriff and coroners. At what time the outlawry was declared on the processes, does not appear from any report of the case; but the second demand on the exigent was as late as the 9th of August and there must have been five in all. At all events, no sentence was given on Mr. Wilkes until June 1768, and the case was finally undisposed of till that time. At what particular period in all these proceedings, Almon made the offensive publication, does not appear. If it was done before the return of the

verdict into the K. B. or judgment upon it, the case was then pending before the Court for all purposes; and it may be truly considered to have been so without question, up to the time of the outlawry at least; for the process of the Court was continuing on the conviction. Almon's publication was made before Hilary Term 1765, when the rule to show cause was made; and it was not improbable that the publication may have been made even before the outlawry. The question discussed seems to have been rather whether an attachment would lie for a libel on one of the Judges in reference to an act done at his chambers; and if the case was pending at this time, it may account for the confinement of the argument to that point. But on whatever point the case may be considered as turning, as the proceeding was dropped, it furnished no precedent. The counsel for Almon, however, cited precedents to show that Lord Coke refused to adopt that process in his court in a case of libel, when he was Chief Justice.

The counsel for Almon (Dunning and Glynn) met the proceeding with firmness and boldly treated it as an enormous stretch of jurisdiction-totally unwarranted by the law-an infringement of the constitutional securities of the People of England-subversive of the trial by jury, and the most interesting to the liberty of the subject of any that had ever been brought before that court. They said that if the attachment went, the court exercised the distinct and peculiar provinces of party, judge, witness and jury. Yet the court of K. B. listened with attention and respect to these arguments. They had very different views of the rights and duties of counsel from the Respondent in his court. They took no offence at the vindication at their bar of the constitutional rights of the People of England. It never entered into their minds that the Court was in danger of violence from the surrounding audience. They heard the counsel patiently, attentively, and with great deference and respect; and Ch. J. Wilmot, who sat in place of Ld. Mansfield, said, at the close of the argument, that the counsel on both sides had "learnedly and laudably discussed the question, and that as the cause was of great importance, his brethren and himself would take time to deliberate." And even when the second rule was granted, Mr. Dunning desired Arther time, as the case was "so interesting to public liberty," and the request was "readily granted." Mr. Storrs said that he had been surprised to find that the Respondent had taken offence at the offering of the same arguments by the counsel of Mr. Lawless-that he should have felt on that occasion such a carping jealousy, as to have imagined that gentlemen of the high and honorable character of Mr. Geyer and Mr. Maginnis, had intended them as personalities, for the purpose of provoking violence from his fellow-citizens on the spot. He could not account for this temperament of the Respondent, but by believing that he must have been conscious that the whole proceeding truly deserved the reprobation of every man who witnessed it. The whole testimony had unitedly proved that no indecorum of the slightest kind nor the least tendency to any disrespect of the authority of the court, had occurred throughout all the proceedings. Yet the Respondent had examined minutely, at a former period of this impeachment, as to the nature of the offensive topics thus urged by Mr. Lawless' counsel, and had even inquired whether they had not been addressed to the surrounding crowd!-a point which was flatly negatived. Mr. S. said he was almost ashamed of the cause of free government, to find that the time had come so soon, when an American Judge could not sit quietly upon the bench and hear the liberties and privileges of his fellow countrymen vindicated; and he regretted that the Respondent could have held the American bar in such low estimation, as not to have known that when these liberties and privileges are at stake, they would neither quail beneath the frowns of any Court, or palter with their duties to appease the sensibilities of any Judge.

What judgment the court would have given in Almon's case, is left to conjecture only. But since the death of Ch. J. Wilmot, a sketch of an opinion partially prepared by him, has appeared among some of his posthumous papers,

which have found their way into the press. We do not know that even this was ever sanctioned by the court.

He stated the objection of Mr. Dunning and Mr. Glynn with great fairness, viz.-that "papers reflecting merely on the qualities of the judges themselves, are not the proper objects of attachment."

After showing, what Mr. S. said he did not deny, that the proceeding by attachment in cases of contempt, was well warranted by the usages of the law of England-that it was coeval with the courts and a part of the "lex terrae," (all which was fully admitted by Almon's counsel) he came to the point in hand. "But it is said that the course of justice in those cases is obstructed, and the obstruction must be instantly removed; that there is no such necessity in the cases of libels upon courts or judges, which may wait for the ordinary method of prosecution without any inconvenience whatever. But when the nature of the offence of libelling judges for what they do in their judicial capacities, either in court or out of court, comes to be considered, it does, in my opinion, become more proper for an attachment than any other case whatsoever."

"By our constitution, the King is the fountain of justice, which is administered in this kingdom, 12 Co. 25. The King is de jure to distribute justice to all his subjects; and because he cannot do it himself, he delegates his power to his judges, who have the custody and guard of the King's oath, and sit in the seat of the King concerning his justice."

"The arraignment of the justice of the judges, is arraigning the King's justice. It is an impeachment of his wisdom and goodness in the choice of his judges, and excites in the minds of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them; and whenever men's allegiance to the laws is so fundamentally shaken, it is the most fatal and the most dangerous obstruction of justice; and, in my opinion, calls for a more rapid and immediate redress than any other obstruction whatever; not for the sake of the judges as private individuals, but because they are the channels by which the King's justice is conveyed to the people. To be impartial and to be universally thought to be so, are both absolutely necessary for the giving justice that free, open and uninterrupted current, which it has, for many ages, found all over this kingdom, and which so eminently distinguishes and exalts it above all nations upon the earth.”

"In the moral estimation of the offence and in every public consequence arising from it, what an infinite disproportion is there between speaking contumelious words of the rules of the court, for which attachments are granted constantly, and coolly and deliberately printing the most virulent and malignant scandal which fancy could suggest, upon the judges themselves. It seems to be material to fix the ideas of the words ' AUTHORITY' and 'contempt of court,' to speak with precision on the question."

more

Mr. S. said that he fully agreed here that the whole question turned on the proper legal signification of the word "authority." The merely comparative moral estimation of an offence with other contempts, could not sustain the jurisdiction, if the law itself had not conferred this power on the court. Ch. J. Wilmot may have, perhaps very justly, expressed his opinion that it became " proper" to punish a general libel by attachment than even actual violence to the court. But it is certainly no branch of the authority of the judges to make the law themselves for that end. He knew of no principles of the English constitution which inculcated that a man might be deprived of his liberty-not because any such jurisdiction had ever been actually conferred on the courtsbut because some judge thought that it was highly proper that they should have it. Nor did the argument of the Chief Justice acquire any strength by putting so conspicuously into the foreground the comparative immorality of the extreme case of the most cool, deliberate, most virulent and malignant scandal. The epithets may be strong, but, like most epithets, they really made the argument no stronger. He came to the true and only question at last, when he

men.

said, that the material point was to fix the legal sense of the word "authority." Mr. S. said that he considered that the Ch. J. had virtually given up the question when he found himself compelled to show that the offence of a general libel was an obstruction to justice;-for it was clearly that proposition that he considered his argument as finally establishing, and he rested the soundness of his conclusions on that principle only. It was a direct admission that the power of attachment for contempt was confined to cases of interruptions of the course of justice. So that the whole matter turned on the question whether an arraignment of the qualities of a judge was an obstruction to the legal authority of the court. Mr. S. said that he thought that the argument of the Ch. J. rested upon a subtle and false sense of some of the words which he had used. Thus, he had said that to be universally thought to be impartial was necessary to giving justice that "free, open, and uninterrupted current" which it had found for ages. Now, said Mr. S., we do not understand by the course of justice, the abstract or speculative estimation of the qualities of the judges in the minds of By the course of justice we mean the actual administration of the law through the process, forms, proceedings and judgments of the courts and the offcers of the law. To obstruct these proceedings, is to obstruct the legal course of justice, and an interference with the authority of the courts. The legal authority of the judges consists in their power and the uninterrupted exercise of their judicial functions. To doubt or deny their infallibility-to question their accomplishments-their legal acquirements their impartiality or their moral qualities, is an obstruction only of the good opinion of men as to their fitness for their places. But it is hardly good English to say that this is a denial of their judicial authority, in the legal sense of that word. If this be not so, then it is an obstruction of the course of justice to say, e. g. that the opinion of such a judge is no authority—and the argument of the Ch. J. would well sustain that as a contempt "not for the sake of the judges," but as a contempt of all law, and a fundamental shaking of the allegiance of the people of England to the King, by reason of such a constructive impeachment of the King's wisdom and goodness in having issued a patent to such a judge for that office. Mr. S. said that the argument was very far fetched at best; and he considered that its fallacy throughout was to be found in the subtle perversion of the legal sense and meaning of one or two words. So far from proving that such an offence is a contempt of the Court, Ch. J. Wilmot had rather shown, by this course of reasoning, that the offence was of a totally different character-that it belonged to another class denominated by Blackstone (Vol. 4. Ch. 9. II. sec. 3,) Contempls against the King's Person and Government, which he defines to be "speaking or writing against them, cursing or wishing him ill, giving out scandalous stories concerning him, or doing any thing that may tend to lessen him in the esteem of his subjects, may weaken his government or may raise jealousies between him and his people." And this is the offence of sedition or seditious libel, which has come back to the courts, from the Star Chamber-treated there, originally, as a contempt of the King and his Government, as a common law offence. We have seen that it was so treated in Wraynham's case in the St. Chamber for slandering Chancellor Bacon; and Ch. J. Wilmot has mixed up the reasoning in the Star Chamber to prove it to be a common law crime against the King, with his own, in order to show it to be a contempt of Court. So, he says-the King is the fountain of justice-the judges have the custody and guard of his oath, and sit in the seat of the King-to arraign their justice is to arraign the King's justice-to impeach his wisdom and goodness in the choice of them-thus to excite general dissatisfaction, indispose men's minds to obedience, and shake their allegiance to the laws. This was precisely the argument of the attorney general, in Mr. Hollis's case. (2 St. Tr. 1022.) "The offence wherewith I shall charge the three offenders at the bar is a misdemeanor of a high nature, tending to the defaming and scandal of justice," &c.

"The King, amongst many his princely virtues, is known to excel in that proper virtue of the imperial throne, which is Justice. It is a royal virtue, which doth employ the other three cardinal virtues in her service,”—and he enumerates them, Wisdom, fortitude and temperance.

"For this, his Majesty's virtue of justice, God hath of late raised an occasion, and erected, as it were, a stage or theatre much to his honor, for him to show it, and act it in the pursuit of the untimely death of Sir Thomas Overbury," &c. "This great work of his Majesty's Justice, the more excellent it is, your lordships will soon conclude the greater is the offence of any that have sought to affront or to traduce it. And therefore, before I descend unto the charge of these offenders, I will set before your lordships the weight of that which they have sought to impeach," &c.

After various encomiums and a review of "his Majesty's princely and sacred proceeding" on Sir Thomas Overbury's murder, he considered the criticisms or comments upon such cases, as subjecting "the majesty of justice to popular and vulgar talk and opinion "—and that, as to a matter "which is res judicata," it was "intolerable."

The same argument was offered by another attorney general, in Mr. Wraynham's case, (2 St. Tr. 1061) to show it to be a crime to slander Ch. Bacon, though he was then dead. It was the attributes of the King," clemency and justice," that were scandalized ;--the attorney general saying, that though Sir F. Bacon was dead, "the State yet lives ;"—and Sir E. Coke said, that "the slander of a dead man is punishable in this court, as Lewis Pickering is able to tell, whom I caused here to be censured for a slander against an Archbishop that is dead; for justice lives, though the party be dead." The attorney general said that these slanders "set divisions between the King and his great magistrates, to discourage judges and vilify justice." The Bishop of London did not stop with his argument where Ch. J. Wilmot rested the point-that the judges sit in "the seat of the King." He said," they sit in God's seat, and execute his, and not their own judgments." He seems to have been the first too to treat a scandal of the judges as an assault upon their authority. "Anima et vita regnorum authoritas;—" take it away from the magistrate of state, take it away from the King himself, et subversa jacet pristina sedes soliorum."

So, King James himself, in his reply to the letter of the Judges in the case of Commendams, said to them: "Our pleasure therefore is, who are the head and fountain of Justice under God in our dominions, and we, out of our absolute power and authority royal, do command you that you forbear to meddle any further in this plea till our coming to town." And he rebuked the Judges when he called them before the Council at Whitehall, for not reproving the barrister in that case, who had presumed to argue against his Prerogative. "He had observed," he said, "that ever since his coming to the Crown, the popular sort of lawyers had been the men that most affrontedly in all parliament had trodden upon his Prerogative, which being most contrary to their vocation of any men, since the law or lawyers can never be respected, if the King be not reverenced; it did, therefore, best become the Judges of any, to check and bridle such impudent lawyers, and in their several benches to disgrace them that bear so little respect to their King's Authority."

Mr. Storrs said that the whole argument of Ch. J. Wilmot was little more than a repetition of some of these arguments, which, in a proper case, might show the political nature of the offence of Sedition or Seditious Libel. But it was a mere fiction to pervert the principles on which that class of offences rested so far as to confound the moral value of the opinions of the judges with the political attributes of the Crown. To say that the judges have "the custody and guard of the King's oath," was quite too nice a refinement for a legal argument by which a man's liberty is to be summarily taken away. It was no more than to say that the Chancellor was the keeper of the King's conscience, and not so truly, even as one of those harmless, and perhaps useful fictions, in which the theory of