e partition which separates the
functions of the legislator from those of the judge. "This man," it was
said, "may be a bad Englishman; and yet his cause may be the cause of
all good Englishmen. Only last year we passed an Act to regulate the
procedure of the ordinary courts in cases of treason. We passed that
Act because we thought that, in those courts, the life of a subject
obnoxious to the government was not then sufficiently secured. Yet the
life of a subject obnoxious to the government was then far more secure
than it will be if this House takes on itself to be the supreme criminal
judicature in political cases." Warm eulogies were pronounced on the
ancient national mode of trial by twelve good men and true; and indeed
the advantages of that mode of trial in political cases are obvious. The
prisoner is allowed to challenge any number of jurors with cause, and a
considerable number without cause. The twelve, from the moment at which
they are invested with their short magistracy, till the moment when they
lay it down, are kept separate from the rest of the community. Every
precaution is taken to prevent any agent of power from soliciting or
corrupting them. Every one of them must hear every word of the evidence
and every argument used on either side. The case is then summed up by a
judge who knows that, if he is guilty of partiality, he may be called to
account by the great inquest of the nation. In the trial of Fenwick at
the bar of the House of Commons all these securities were wanting. Some
hundreds of gentlemen, every one of whom had much more than half made
up his mind before the case was opened, performed the functions both of
judge and jury. They were not restrained, as a judge is restrained, by
the sense of responsibility; for who was to punish a Parliament? They
were not selected, as a jury is selected, in a manner which enables the
culprit to exclude his personal and political enemies. The arbiters of
his fate came in and went out as they chose. They heard a fragment here
and there of what was said against him, and a fragment here and there of
what was said in his favour. During the progress of the bill they were
exposed to every species of influence. One member was threatened by the
electors of his borough with the loss of his seat; another might obtain
a frigate for his brother from Russell; the vote of a third might be
secured by the caresses and Burgundy of Wharton. In the debates
arts were practised and