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CHAPTER XI.

We have hitherto been occupied with the statement and discussion of circumstances proving that Sir PHILIP FRANCIS was JUNIUS. The course of our investigation now leads us to consider the opinions they mutually held on several important subjects, which species of agreement, though subordinate in point of proof to the more direct evidence before detailed, is yet capable of adding greatly to the force of our argument.

But though we profess to have departed from the relation of plain, indisputable facts, it will be seen that many such are to be arrived at through the medium of recorded opinions. Of this kind is the proof which we now submit to the reader, that Sir PHILIP FRANCIS was " acquainted with English judicature," in a degree sufficient for the Author of JUNIUS's Letters, though, like the latter, not a lawyer by profession; and what is a more decided bond of union between the two, that the sentiments Sir PHILIP entertained respecting the profession of the law, and those who practise it, were perfectly in unison with the declarations of JUNIUS.

In that fine speech on the murder of Mustapha Cawn, “ Mr. FRANCIS, addressing himself to the Crown Lawyers, observed, that whereas it had been urged by them that penal statutes ought to be construed strictly, he fully assented to that proposition; but he insisted that the learned gentlemen did not adhere to their own rule, when they maintained that the present case did not fall within the intent and meaning of the statute of the 33d of Henry the 8th. This statute says, 'all murders within the king's dominions or without:' not a word of British subjects. What right have the lawyers to say that none but British subjects were intended? What right have they to a particular construction of general words? Is not the killing a foreigner as much a murder as any other? But it is said, that no man has yet been tried for the murder of a man under that statute. Perhaps in fact it may be so. Perhaps the case never occurred. But does it follow that because you may never have had the same occasion which you have now to resort to this statute, you may not resort to it when the case occurs? It could not in the nature of things be a statute much in common use. There was another statute of the 28th of the same king against piracy, the words of which were exactly the same with that of the 33d. Yet under that of the 28th, William Townsend had been tried at the Admiralty Sessions on the 1st of No

vember, 1781, for the murder of Gerrardo Silvestrino, master of a Venetian ship, about 70 leagues from Cape St. Vincent, and stated in the indictment to be in the dominions of Portugal; and for this murder of a foreigner, on the high seas, without the king's dominions, the murderer had been convicted and executed. He challenged the lawyers to state, if they could, any difference between the two statutes as to the point in question. The Attorney General had asked, with great gravity, how would it be possible for him to frame the indictment; how could he insert in it those essential words, against the peace of our sovereign lord the King?' and this had been insisted on as a grand insurmountable difficulty. Unlearned as he was, he would undertake to give those learned persons the information they wanted. First then he informed them that those words, though usual, were not necessary in an indictment. Had they ever heard of Hawkins' Pleas of the Crown? He understood it was a book of great authority. Would they listen to it? would they suffer their learning to bend to it? The words of Hawkins are, 'It hath been adjudged not to be necessary in an indictment of death, to alledge that the person killed was in the peace of God and of our Lord the King, &c. though such words are commonly put into indictments; for they are not words of substance.' As to the clause that the act done was

against the peace of the King, the same author says that there are four precedents without it in Coke's Entries, two of them for different homicides, and that Rastal's Precedents, both of indictments of felony, and of inferior offences, do as often omit the words contra pacem, as make use of them.""

"Nevertheless," said Mr. FRANCIS, "if the Attorney General still thinks that the words against the peace of the King are indispensable, I take it upon me to inform him, that they may be made use of, not only without violence to, but in the fairest construction of the statute. Every thing created by that statute for the trial of murders committed without the king's dominions is founded on a legal fiction, a wise, a useful, and a salutary fiction of the law, for securing the great end of justice; namely, that the crime, though in fact committed on the other side of the globe, was supposed and taken to be committed in some county of England. This was the direct and avowed fiction of the law itself: but the moment it was admitted that the act in question was done in a county of England, it followed of course, it was a consequence unavoidable, that the crime was against the peace of the King, and all the pretended difficulty about framing the indictment was annihilated."

"Mr. FRANCIS concluded with saying, that

as to the present case, he had done enough and would do no more. If the world should be of opinion that the cause of public justice is deserted, let it rest with the great inquest of the nation, which refuses to inquire. Let it rest with the executive government, which refuses to execute the laws. Let it rest with the law officers of the crown, who are bound, ex officio, to inform against crimes. They who have the power are vested with the trust. Their duty is implied in their station. They have no right to expect that individuals should perform it for them. The fate of the motion I see is decided. Nothing is left for me but to lament, as I do with the deepest concern, that it should be in the power of so very little law, to get the better of so many motives of policy, justice, and benevolence, as belong to the present question, and have been urged in support of it without the shadow of a reply *."

"In the course of this night the House would hear abundance of legal and technical argument, more likely to perplex than to enlighten their minds; he therefore humbly recommended to those gentlemen, who, like himself, were not learned, to ask their own understanding what was reasonable, to ask their own conscience what was just, and leave it to the learned profession to prove, if they could, that

Parliamentary Debates,xxvii. 350.