mortgage, the borrower, it is evident, would have a right to deduct from it a sum (suppose th) equal to that which the lender would have had to pay on account of such sum, towards discharging the debt. It will be observed, that in my estimate of the amount of the national debt, I supposed that 3 per cent. would be paid off at 60, whereas the Edinburgh reviewers have asserted, in their critique on the bishop of Llandaff, that they would, and ought to be, paid off at 100. On this supposition it is evident that the stockholder would receive back almost twice as much as he had lent to government, the equity of which, to say the least of it, is certainly not very apparent. It would make a very material difference also in the proportion which would be required of every person's property to discharge the debt. This difficulty however would be done away, at least with respect to ths of the sum due to the stock holder, by securing to him on the land and houses, the same annual interest which he receives at present. The public would, by the method I have proposed, (as far as ths of his property goes at least) fulfil their engagements with him to the very letter, for if it is now worth while to give nearly 701. to receive an annual interest of 31. without having any other than the vague undefined security on which the funds rest at present, it would surely be worth as much to receive the same annual interest when the principal was secured on the best of all possible funds that of all the lands and houses in the nation. In short, I am persuaded, that after a measure of the kind I have pointed out was put in execution, 3 per cent stock would soon get up to 80, and probably more than that sum, so that if the stockholder had only ths of his real claim secured to him in this manner, it would be worth as much to him as the whole is at present. When his security was changed so much for the bet ter, and ths of it were rendered so much more valuable, the stockholder would not have much reason to complain, even though th of his capital, which is now worth 68, were paid off at 60; neither indeed would it make much difference to the public, were they to pay the remaining 4th or 66 millions at 68 or 70, the present price of stock instead of 60, the price I have calculated upon. But a question here occurs, Would not the price of stocks, even in this case, be subject to the same fluctuation as at present? Would not the funds, when placed even upon this footing, be liable to be raised or depressed by any acci dental difference in the foreign or domestic relations of the country ? in short, would not the French government in the probable future relative situation of the two countries, still have it in their power to raise and lower stocks at their pleasure in a time of peace, and take advantage of such changes of price, to put considerable sums in their own pockets? I must confess, that I think not, especially if it were enacted, that the stockholder should have a right, in case of the nonpayment of his interest, or on the pro bability of an invasion, to be considered joint proprietor with whatsoever land holder he pleased, and be authorised to distrain for his dividends in the same manner as is done for rent. In this case, property in the (new) funds would be just as secure as property in land; it would be the same at least as a mortgage on land, and as little liable to be affected in value by any difference in the situation of the country with respect to foreign powers. In both cases, (that of the funds and a mortgage) a permissory right to receive the rents would be vested in the hands of a second person, who would be answerable with his whole property for his fidelity in discharging his trust. If it should still be found however, that funded property was liable to be affected by foreign influence, its annihilation might be easily effected, and the mischief done away at once by the actual transfer of th of the land and houses from the present proprietors to the stock. holders. But in this case, the public would be in danger of losing the vast advantages which they derive from life and fire-insurance offices. These institutions, valuable as they are, could scarcely exist if it were not for the facility which the funds afford of safely investing their capital and occasional receipts, and as easily obtaining the occasional sums which they may be liable to be called upon to pay at a short notice. These institutions are, on the whole, so advantageous to a country, that it might be worth while to run some little risk of being injured by our neighbors, for the sake of retaining them. risk however might be diminished, were we to make a transfer of part (say 1) of the funded property; by this means the floating debt would be reduced to about 140 millions, which perhaps is no more than is necessary to render the This funds funds competent to produce all the ad vantages which they do at present. Were we, however, to place the debt on the footing I have proposed, and wisely make a radical change both in our foreign and domestic policy; a thing which we shall ere long be obliged to do, our financial arrangement of what ever description would not be liable to be in the least affected by any external or foreign influence whatsoever. I shall now proceed to examine for a monent, how people engaged in trade would be affected by the discharging of the national debt in the manner I have proposed. We have seen, that more than thirteen millions, a sum considerably greater than the whole amount of the income-tax, would have to be raised annually from somewhat less than th of the property of the country, and although taxes would be taken off to the amount of more than twenty millions annually in consequence of this measure, still this part of the public would be but little benefited by it. They would have to pay to the stockholder for the first year, as much in interest as they now pay in taxes. The charge of interest indeed, would decrease in proportion as they advanced in discharging the capital of their debt. We are to consider therefore, a portion less than th of the national property, as being levied upon for the first year at least, to the amount of near 14 millions, and for the amount of aff the present taxes besides, except the income tax; and it is to be considered too, that this will have for the most part to be paid by people engaged in trade. It would seem at the first blush, that to take so much (5th of their whole property) annually, for hve successive years, from commercial people, would be productive of great inconvenience to them; but if we reflect a little, we shall see reason to think that this will be by no means the Case. Every man's capital would be levied upon in the same proportion, and man would stand exactly therefore every in the same relative situation after, as he did before, the money was paid. Trade at least, as carried on at present, is a sort of warfare; it is a struggle who can get the greatest share of the good things, and amass the greatest quantity of As in contests of a different nature, he that has the longest sword, so in this he that has the longest purse, usually gets the victory; but if all the swords, as well as all the purses, are equally curtailed, it is evident that the wealth. combatants will stand in the same re lative situation after, as they did before their weapons were shortened. Neither would the diminution of individual ca. pital tend to diminish the spirit of com iftercial enterprise. It is not so much the absolute as the relative accumulation of capital, which creates and invigorates commercial speculation. It is evident indeed, that the national capital would not on the whole be diminished; it would only be divided amongst a greater num ber of hands, and would therefore, in all probability, be productive of greater be nefit to the country. The diminution of the price of goods, consequent on the diminution of duties and taxes, would relider our present circulating medium more than adequate to carry on the commercial intercourse of the country. This superfluous currency would be the same as an accession of fresh capital, and might be turned to the greatest national advantage, by being employed in the culture of the waste lands, under a general inclosure act. For the Monthly Magazine. On the PRACTICE exercised by the TWO HOUSES OF PARLIAMENT of construing LIBEL into CONTEMPT, and PUNISHING it by their own ORDER. Opinion of lord Erskine, on the right of Summary Attachment, even by the courts of law, given so long back as 1785, on the occasion of an Attachment issued by the Court of King's Bench of Ireland against the magistrates of Leitrim, for being enga ged in holding a meeting for a reform in the representation of the people in parliament. It is applicable to the case of Mr. Gale Jones, because the proceeding against him is for an act that might clearly, safely, and effectually, have been brought before the ordinary courts of law.] I SIR, IN A LETTER TO A FRIEND. Bath, Jan. 13, 1785. FEEL myself very much honoured by your application to me on an occasion so important to the public freedom; and I only lament that neither my age nor experience are such as to give my opinion any authority with the court in which you practice: but whereever I have no doubt, I am always ready to say what I think; and you are, there fore, very welcome to my most public sentiments, if any use can be made of them. You have very properly confined your questious to the particular case, furnished me by the affidavit which you have transmitted to me; and my answers therefore need involve in them no general discussions upon the principles of civil government, which in the mere abstract are not often useful, nor always intelligible. The propositions to which my answers are meant strictly to apply, are First, Whether the facts charged by the atidavit, on which your Court of King's Bench is proceeding against the magistrates of Leitrim, are sufficient to warant any criminal prosecution for a misdemeanor whatsoever? Secondly, Whether, supposing them sufficient to warrant a prosecution by information or indictment, the court has any jurisdiction to proceed by attachment ? As you are pushed, in point of time, I can venture to answer both these ques tions at Bath, without the assistance of my books, because they would throw no light upon the first from its singularity, and the last is much too clear to require any from them. As to the first: the facts charged by the affidavit do of themselves neither establish nor exclude guit in the defendants. In one state of society such proceedings might be highly criminal; and, in another, truly virtuous and legal. To create a national delegation amongst a free people, already governed by ie presentation, can never be, under all circumstances, a crime: the objects of such delegation, and the purposes of those who seek to effect it, can alone deterinine the quality of the act, and the guilt or innocence of the actors. If it points (no matter upon what necessity) to supersede or to controul the existing government, it is self-evident that it cannot he tolerated by its laws. It may be a glorious revolution; but it is rebellion against the government which it changes. If, on the other hand, it extends no further than, to speak with certainty the united voice of the nation to its representatives, without any derogation of their legislative authority and discretion, it is a legal proceeding, which ought not indeed to be lightly entertained, but which many national conjunctures may render wise and necessary. The attorney-general might, undoubt. edly, convert the facts contained in the affidavit into a legal charge of a high misdemeanor; which, when properly put into the form of an information, the defendants could not demur to: but he MONTHLY MAG. No. 199. could not accomplish this without putting upon the record averments of their criminal purposes and intentions; the truth of which averments, are facts which he must establish at the trial, or fail in his prosecution. It is the province of the jury, who are the best judges of the state of the nation, and the most deeply interested in the preservation of its tran quillity, to say, by their verdict, whether the defendants acted from principles of public spirit, and for the support of good government, or sought seditiously to disturb it. The one or the other of these objects would be collected at the trial, from the conduct of the defendants in summoning the meeting, and the purposes of it when met. If the jury saw reason, from the evidence, to think that its objects, however coloured by expressions the most guarded and legal, were, in effect, and intended to be, subversive of government and order, or calculated to stir up discontent, without adequate objects to vindicate the active attention of the public, they would be bound in conscience and in law to convict them; but if, on the other hand, their conduct appeared to be vindicated by public danger or necessity, directed to legal objects of reformation, and animated by a laudable zeal for the honour and prosperity of the nation, then no denarture from accustomed forms in the manner of assembling, nor any incorrect expressions in the description of their object, would bind, or even justify, a jury to convict them as libellers of the government, or disturbers of the peace. To constitute a legal charge of either of these offences, the crown (as I before observed) must aver the criminal intention, which is the essence of every crime; and these averments must be either proved at the trial, or, if to be inferred prima facie from the facts themselves, may be rebutted by evidence of the defendant's innocent purposes. If the criminal intent charged by the information be not established to the satisfaction of the jury, the information which charges it is not true; and they are bound to say so by a verdict of acquittal. I am therefore of opinion (in answer to the first question), that the defendants are liable to be prosecuted by informa tion; but that the success of such prosecution ought to depend upon the opinion which the people of Ireland, forming a jury, shall entertain of their intention in summoning the meeting, and the 3 M real real bona fide objects of the assembly when met. It is unnecessary to enlarge upon these principles, because their notoriety has no doubt suggested this novel attempt to proceed by attachment, where they have no place; and I cannot help remarking, that the prosecutor (if his prosecution be founded in policy or justice) has acted with great indiscretion, by shewing that he is afraid to trust the people with that decision upon it which belongs to them by the constitution; and which they are more likely to give with impartial justice, than the judges whom he desires to decide upon it at the expence of their oaths and of the law. This is a strong expression, which per haps I should not have used in answer ing the same case in the ordinary course of business; but writing to you, as a gentleman, I have no scruple in saying, that the judges of the Court of King's Bench cannot entertain a jurisdiction by attachment over the matter contained in the affidavit which you have sent me, without such a gross usurpation and abuse of power, as would make me think it my duty, were I a member of the Irish parliament, to call them to account for it by impeachment. The rights of the superior courts to proceed by attachment, and the limita tions imposed upon that right, are esta blished upon principles too plain to be anisunderstood. Every court must have power to enforce its own process, and to vindicate contempts of its authority; otherwise the laws would be despised, and this obvious necessity at once produces and limits the process of attachment. Wherever any act is done by a court which the subject is bound to obey, obedience may be enforced, and disobedience punished, by that summary proceeding. Upon this principle attachments issue against officers for contempts in not obeying the process of courts directed to them, as the ministerial servants of the law; and the parties on whom such process is served, may, in like ner, be attached for disobedience. process, given some judgment, made some legal order, or done some act, which the party against whom it issues, or others on whom it is binding, have either neglected to obey, contumaciously refused to submit to, excited others to defeat by artifice or force, or treated with terms of contumely and disrespect. But no crime, however enormous, even open treason and rebellion, which carry with them a contempt of all law, and the authority of all courts, can possibly be considered as a contempt of any parti cular court, so as to be punishable by attachment; unless the act, which is the object of that punishment, be in direct violation or obstruction of something previously done by the court which issues it, and which the party attached was bound, by some antecedent proceeding of it, to make the rule of his conduct. A constructive extension of contempt beyond the limits of this plain principle would evidently involve every misde meanor, and deprive the subject of the trial by jury, in all cases where the punishment does not extend to touch his life. The peculiar excellence of the English government consists in the right of being judged by the country in every criminal case, and not by fixed magistrates appointed by the crown. In the higher order of crimes, the people alone can ac cuse, and without their leave, distinctly expressed by an indictment found before them, no man can be capitally arraigned; and in all the lesser misdemeanors, which either the crown, or individuals borrowing its authority, may prosecute, the safety of individuals and the public freedom absolutely depend upon the well known immemorial right of every defendant to throw himself upon bis country for deliverance by the general plea of Not Guilty. By that plea, which in no such case can be demurred to by the Crown, or questioned by its judges, the whole charge comes before the jury on the general issue, who have ajurisdiction co-extensive with the accusation, the exman-ercise of which, in every instance, the authority of the court can neither limit, supersede, controul, or punish. Many other cases might be put, in which it is a legal proceeding, since every act which goes directly to frustrate the mandates of a court of justice, is a contempt of its authority. But I may venture to lay down this distinct and absolute limitation of such process, viz. that it can only issue in cases where the court which issues it, has awarded some Whenever this ceases to be the law of England, the English constitution is at an end; and its period in Ireland is ar rived already, if the Court of King's Bench can convert every crime, by construction, into a contempt of its autho rity, in order to punish by attachment. By this proceeding the party offended As I live in England, I leave it to the parliament and people of Ireland to consider what is their duty, if such authority is assumed and exercised by their judges: if it ever happens in this country, I shall give my opinion. It is sufficient for me to have given you my judgment as a lawyer upon both your questions; yet, as topics of policy can never be misplaced when magistrates are to exercise a discretionary authority, I cannot help concluding with an observation, which both the crown and its courts would do well to attend to upon every occasion. The great objects of criminal justice are reformation and example; but neither of them are to be produced by punish. ments which the laws will not warrant: on the contrary, they convert the offender into a suffering patriot; and that crime which would have been abhorred for its malignity, and the contagion of which would have been extinguished by a legal prosecution, unites an injured nation under the banners of the criminal, to protect the great rights of the community, which, in his person, have been endangered. These, sir, are my sentiments; and you may make what use of them you please. I am a zealous friend to a reform of the representation of the people in the par liaments of both kingdoms, and a sincere admirer of that spirit and perseverance which in these days, when every impor tant consideration is swallowed up in luxury and corruption, has so eminently distinguished the people of your country. The interests of both nations are in my opinion the same; and I sincerely hope that neither ill-timed severity on the part of government, nor precipitate measures on the part of the people of Ireland, may disturb that harmony between the remaining parts of the empire, which ought to be held more sacred, from a reflection on what has been lost. T. ERSKINE. YOU your miscellany for the following patriotic suggestion. Let the first square that shall be built in the capital of England, or in any of its provincial cities of eminence, such, for instance, as Liverpool or Bristol, be called by an act of the legislature for that purpose, Freedom Square, in honour of the abolition of slavery in the British colonies. A pillar may likewise be erected in the centre of this square, with appropriate emblems and inscriptions, and the names of those members of parliament who were most active and instrumental in the abolition be recorded in letters of gold on one side, and the names of the opposers in letters of lead on the other, to perpetuate their ignorance and imbecility. BRITANNICUs. ́ MEMOIRS AND REMAINS OF EMINENT PERSONS. SMUS JACOB CARSTENS was born A the 10th of May, 1754, at St. Gurgen, a village near Sleswick; where his father was a miller, and his mother was the daughter of an advocate. At nine years of age his parents sent him, as a day-scholar, to a school at Sleswick, whence he returned home every evening; and as he took with him in the mornings his victuals for the day, he used to make his meals within a church near the gymnasium. There the paintings which decorated the walls, first awakened his imagination; for he had already mani 3 fested a taste for drawing, in amusing himself by copying from the bad engra vings contained in his school-books. The performances of Jurian Ovens, one of the best disciples of Rembrandt, and who had fixed his residence in Hol stein, chiefly engaged his attention; and he frequently made use of a ladder, in order to examine them more closely. His imagination became exalted every time he contemplated these fine productions; and he thought it the height of ambition, to aspire at being, some time, able to execute master-pieces of equal merit. He applied with considerable ardour to feeble attempts, but he was entirely |