§ Mr. Denman
having moved the order of the day for taking into consideration the Minutes of Evidence taken on the 17th instant,
§ Mr. Butterworth
requested to know, whether Mr. Kenrick still held the situation of recorder of Dover, or whether he had been removed from it?
§ Mr. Peel
replied, that he did not know 658 whether Mr. Kenrick did or did not hold the office, nor whether he discharged its duties in person or by deputy; but he could answer distinctly, that that gentleman had not been removed from the office by the authority of the government. He thought that the hon. gentleman, who himself represented Dover, was quite as likely as any person to know whether Mr. Kenrick was the recorder of that borough.
§ Mr. Denman
said, it was not easy for the member for Dover to know any thing of the recorder of Dover, as there was no such officer. There was a high steward in Dover, the nature of whose duties was similar to that of recorder; but before a person was eligible to that situation, it was necessary that his majesty should express his approbation of it. Now Mr. Kenrick had never been nominated by his majesty.
Counsel were then called in, and Mr. Gurney was heard at the bar in defence of Mr. Kenrick. Mr. Bolland then appeared at the bar, as junior counsel for Mr. Kenrick; and being asked by the Speaker if he wished to urge any thing in behalf of the accused, he declined addressing the House, upon the ground of the full and satisfactory manner in which Mr. Gurney had made his defence. The counsel being ordered to withdraw,
§ Mr. Denman
said, he rose at a period when it was permitted him to explain, in detail, the grounds upon which the motion had been made; and he felt that it was peculiarly necessary to do so, because, in the course of the preliminary discussion, misconceptions had been betrayed by hon. members, beyond any thing which he could possibly have conceived or anticipated. He little thought that any one in that House could be ignorant that it was the duty of the two Houses of parliament to watch with jealousy the conduct of the judges; and, in case of their betraying any dereliction of duty in the administration of justice, it was their business to address his majesty to remove them from their situations. In former periods of our history, the commissions of the judges were held by a very different tenure from that by which they were held at present. The office of judge was formerly held by a commission, dependent upon the good pleasure of the Crown. They were sometimes appointed, as their commissions expressed it, during their good behaviour, quamdiu se bene gesserint. Between the reigns of James 1st and the Revolution, the former tenure prevailed, and the judges were not 659 removable for ill behaviour, but at the sole pleasure of the king. With such a tenure, he need scarcely say, that the most capricious and unjustifiable removals took place, when judges had sufficient virtue and fortitude to perform their duty to the public. Thus, that very conduct which reflected lustre on the bench, was often the source of the displeasure of the Crown; and judges were removed from those seats to which they did the utmost honour. After the Revolution, this nefarious practice was happily put an end to, and the judges' commissions were directed to be made out by the present tenure of quamdiu se bene gesserint. This was permanently enacted by the act of Settlement, but, at the same time, it was expressly declared, that, upon the addresses of both Houses of parliament to the throne, the judges should be removed. In the first year of the reign of his late majesty, that sovereign being desirous that the judges should hold their offices by a tenure still more independent of the Crown, had addressed the parliament to this effect from the throne, and had provided that the judges should not be removed in the event of the demise of the Crown. But, in the settlement of this question, it was especially provided, that his majesty, his heirs, and successors, should remove any judge upon the address of the Houses of parliament.—All the preliminary attacks upon the present course of proceeding had been, therefore, thrown away; for it was the obvious duty of that House to make such inquiries into the conduct of judges, and to exercise their constitutional privilege of addressing the Crown to remove any judge who should conduct himself in a manner to disgrace his office. This was the tenure of office of the twelve judges of England; and, with reference to the eight judges of Wales, their tenure of office he conceived to be precisely the same. They held their seats by the 34th of Henry 8th which expressly gave them the same power of holding all manner of pleas of the Crown as the English judges; as well as the power of holding all actions and writs as the judges of the Common. Pleas. In addition to this, they exercised the same equitable jurisdiction as the lord Chancellor of England. Thus, throughout the whole principality of Wales, every judge of great session held the same power as the judges of the courts, of King's-bench and Common Pleas in England, and they also exercised 660 that enlarged and over-ruling equitable jurisdiction in Wales, which the lord Chancellor possesses within the realm of England. This immense power held by the Welch judges furnished the same reason for the House to watch and supervise their conduct with the same degree of jealousy with which they were constitutionally bound to watch the conduct of the English judges; and the manner of appointing individuals to the office of judge, in Wales, by no means made it less necessary for the House to be vigilant in the exercise of their duty. This being the case, he had only to remind the House, that Mr. Kenrick came before them as a judge of great sessions in Wales: he also filled the office of a justice of the peace, or magistrate, for the county of Surry, and he was called by himself, although not quite correctly, recorder of the town of Dover; for he believed his title was not quite complete, although formerly his appointment would have received, without any difficulty, his majesty's approbation. By the act of Settlement, and by the first of his late majesty, the patent of a judge would be repealed, in consequence of any crime proved against him before a jury, as a breach of the tenure by which he held his office, the quamdiu se bene gesserit becoming void on any proof of crime; but, at the same time, the discretion which had belonged to the Crown became Vested in parliament. This being the case, he quite agreed with what had been stated upon a former occasion, that the question before the House, and all similar questions, must be questions of degree; and it was entirely for the House to Consider, whether the present case was of sufficient magnitude, and whether it brought a sufficient scandal on the administration of justice, to require the interference of parliament. After the animadversions passed upon the character and conduct of the person who filled this high office, and who was now before the House, he thought that to depart from an investigation of the case, upon any of the grounds which had been urged in the preliminary discussion, would be for the House to give up one of its most valuable privileges, and to fly from one of its most important duties. It was incumbent upon the House to decide, whether Mr. Kenrick bad not forfeited all right to the good opinion and respectability of society, and he should therefore proceed to animadvert upon the case. It 661 had been stated, in the speech of the learned counsel at the bar, that the Morning Chronicle had animadverted upon the conduct of Mr. Kenrick, and that the articles in that paper had constituted a most atrocious libel. These supposed libels were published in August 1824. Between that month of August and the ensuing Michaelmas term, Mr. Kenrick had to consider of his application to be made to the court of King's-bench for a criminal information against the editor of that paper, as, the author of the libels in question. Most undoubtedly it was the paramount duty of any man who regarded his character, to have brought forward an application of this sort. It sounded, however, most strangely in the ears of the world, that a judge should have made application to the court of King's-bench for a criminal information, in consequence of libels of this atrocious nature, and that redress should have been refused by the Court [hear, hear!]. He might also here animadvert upon the fact, that the same judge had prosecuted a poor individual for stealing a scrap of wood of the value of less than twelve-pence; and, upon his proceeding to the sessions, the man charged was instantly dismissed, and the costs of the prosecution were refused to the prosecuting judge. These were two very singular situations for a judge to be placed in. It was notorious, that a rule existed in the court of King's-bench, that any person applying to the court for a criminal information against the author of a libel, should distinctly deny upon oath every imputation cast upon his character in the libel. The more atrocious was the libel, the more easy would it be to deny its aspersions. What were the libels that were the ground of this application to the court of King's-bench? They were all printed; and it was essential to the understanding of the case, to compare the libels with Mr. Kenrick's vindication. He (Mr. Denman) entirely dissented from many of the observations which the articles in the Morning Chronicle contained, although there were others that he approved of. But, the alleged libels would be indeed atrocious, if they were untrue; and, for that reason, when he found that Mr. Kenrick had applied for a criminal information against the alleged libeller, he looked very anxiously for the contradiction which his affidavits might contain to the libel. What was the substance of the charge brought against Mr. 662 Kenrick, in the Morning Chronicle? The articles in that paper not only accused Mr. Kenrick of prosecuting unnecessarily and unjustly a poor man of his neighbourhood, but they said, "you have done this because you wanted to get possession of his land" Mr. Kenrick did not deny this, except in one general phrase at the end of the affidavit. In this affidavit, all he said was, "I did not tamper with the wife of Franks, for the purpose of obtaining the freehold." But he did not say, that he did not prosecute the husband for that purpose, though that was the very charge. He did not say that he did not induce the magistrate to send the poor man to gaol, in order to wear him out, and terrify him, and get possession of his freehold. He did not deny this imputation. He did not deny the charge, that he used all means to induce the poor man to plead guilty, that he might get possession of the freehold. He made no such denial. He only denied that he tampered with his wife. It was not denied that he sent Franks to prison—to that miserable gaol, to be corrupted, and contaminated, and ruined, in order that he might fall an easier victim, and give up his freehold. Mr. Kenrick had the opportunity of answering all these charges, and he never denied any of them. So far from it, in another part of the proceedings, he virtually admitted the charges. In his letter to Mr. Collett, which appeared in the Stamford newspaper, he owned his having sent the man to gaol, and he never denied that he wished to obtain his freehold. He said, "About four or five years ago, I offered him, in exchange, another house, which he declined; and, from that time to the time of his coming out of gaol, I had never, directly or indirectly, treated with him, or made any offer, or, in any manner, endeavoured to purchase his cottage; I had bought another, which answered my purpose, and was indifferent about either of those, otherwise than to get rid of a bad neighbour." Thus, he admitted that he wanted to get rid of a bad neighbour; and he tried to effect his purpose by means of this piece of dirty plank [hear, hear!]. Let any man read the libel, and the depositions, and if he could say that he entertained the slightest doubt of the innocence of Franks, he should, indeed, look upon him with wonder. The slab had been lying as worthless in a ditch, and in its dirty state it was found, not in the possession of Franks, 663 but merely upon his premises. There was not the slightest evidence on the depositions that Franks had ever seen the slab. If Franks had seen it, he had evidently esteemed it a matter of so little value, that he had left it exposed to the view of Kenrick's men, who lived in his neighborhood. Thus this respectable man, the father of seven or eight children, was committed to gaol upon evidence in-sufficient-to have-committed the most dishonest character in the world. It did not require the slightest knowledge of law—it only required the exercise of common sense—to determine, that there was no case against Franks. The learned counsel had said, "God forbid that any undue influence should have been exercised by Mr. Kenrick over the mind of the magistrates who committed Franks!" But it was clear that, when a judge of the land came to swear before a magistrate against a poor man, he did come with a degree of authority that a magistrate might find it difficult td resist. It had been stated by Mr. Burgess, that he had committed Franks to gaol with considerable regret. Mr. Burgess having committed him, he would say; that nothing but the influence of a judge could have induced a magistrate to commit a man upon such a charge. Mr. Kenrick said, "My own carter saw Franks putting this slab upon his premises" that is to say, it was resting against a rabbit-hutch; where it had been placed by one of the children. Contrast this case with that of Cantor. In reference to that case, he' wished that counsel were allowed to address juries in cases of felony. In the case to which he alluded, there was a valuable article found in the possession of the brother of Mr. Kenrick's bailiff, but Mr. Kenrick had refused to inquire into the loss of this valuable sheep, although it had been traced into the possession of the prisoner [hear, hear!]. These two cases ought to be taken together; and, when the House found Mr. Kenrick's conduct so different in the one Case, from what it was in the other, it would excite the strongest suspicion that dome improper motive did actuate Mr. Kenrick in this most unjust prosecution against Franks; He must be allowed to observe, that the affidavits from which he was quoting were solely the affidavits which Kenrick had produced, in order to obtain his rule for a criminal information. There had been several others filed in answer to these, bat it had been argued, 664 that it was unjust to produce them against Kenrick, because he had had no opportunity of answering them, and they were, therefore, ex parte. But, omitting the affidavits that had been filed in answer to Kenrick's, these last themselves became ex parte. Mr. Kenrick had nothing to complain of in the mode of bringing forward this case. It was the most unfounded charge that was ever made, and the House had a right to inquire into the motives. It was the province of common sense to look for some extraordinary motive in the conduct of an individual, so contrary to his duties and station in society, and to his means of information. What was the motive imputed to Mr. Kenrick, in the articles which appeared in the Morning Chronicle? That he had violated his public functions, and had availed himself of his station, in order, unjustly, to dispossess Franks of his freehold. It was not denied that Mr. Kenrick looked to the consequences of his proceedings, and that he calculated they would dispossess Franks of his freehold; but he had stated that his motives were only to get rid of a bad neighbour. It would be well to inquire whether this was the real motive for such extraordinary conduct; and, if this turned out to be a mere pretence, the inference against Mr. Kenrick would be plain. In order to show that this was not his object—that it was a mere pretence, it would only be necessary to refer to Mr. Kenrick's own conduct. Mr. Kenrick, in order to establish that he wished to get rid of Franks, solely because he was a bad character, proceeded to state what the character of Franks was. The character of Franks was highly important in estimating the motives by which Mr. Kenrick was actuated. Mr. Kenrick had felt the necessity of making out something against Franks. It had been stated, that a bloody knife, wrapped in some paper, had been found, belonging to Franks; from which he wished it to be inferred, that Franks had been guilty of stealing a sheep, and of which he had not been even accused and, for which no affidavit had been filed against him. This appeared in Franks's letter to Collett, which appeared in the Stamford News. Collett attributed it to the author, Mr. Kenrick, excepting that Mr. Drakard had made a few alterations to the extent of admitting the direct charge of felony. It was to be observed that these attacks were going on whilst the Morning Chronicle was receiving 665 small sums of money for Franks, and public compassion was excited in his favour. The insertion of Kenrick's letter in the Stamford News was at this precise time, and had a tendency to check the compassion and bounty of the public. The House had a right to discover these circumstances by a judicial and inquisitorial inquiry. They had a right to expect an explanation from Mr. Kenrick. Mr. Collett might have been called to have produced the letter. Kenrick might have disavowed it when it was shown to him by Mr. James. To-day, the defence was, not that he did not send the letter with an intention of its being published, but that he was goaded to do so by the observations which were daily appearing in the Morning Chronicle. This excuse was not satisfactory to him. When a gentleman was called upon to vindicate his character, if he offered no evidence on the subject, it was quite clear that he had nothing to offer. The letter was evidently intended by Kenrick for publication; for, if Collett could have proved that it was delivered to him only for private information, Kenrick would have required him to have given such evidence. The absence of all evidence on the subject made it quite clear that the letter was written for insertion in that paper. If Kenrick knew any thing of the bloody knife, he ought to have sworn it in his affidavit; for all depended on the character of Franks. So far from swearing any thing against him, he only states, in the letter to Collett, that, "When I first came to my present residence, I found Franks in the employ of persons who were preparing my house for my reception. I received hints of his misconduct which excited my suspicions; and finding them well founded, I dismissed him." This was rather a queer way of dealing with the character of any human being, particularly as he had an opportunity of swearing to any particular fact. He then went on to state one of the most cruel things done by one man to another. He said— "I had, or rather my wife had, sent one of his daughters to school, and she was employed at needle-work, which occasioned her to have access to the house; various articles were missing; lace, stockings, clothes, silver-handled scissors, &c. were missing, belonging principally to the house-keeper, and much jealousy and suspicion was occasioned amongst my servants, till they all agreed on suspecting Franks's daughter, 666 when they acquainted roe with the circumstance, and I directed application to a neighbouring justice for a search-warrant, in the execution of which, all the articles were found in a box, in the bedroom of Franks and his wife, under their clothes; the magistrate requested my interference with the parties, on account of the tender age of the girl, to take their things again, and drop any prosecution. This was before the late act, giving a power to prosecute the abettors, had passed." Thus an imputed offence of a child ten years of age was brought forward many years after, when she was a young woman in respectable service, so as to cite her character before the public, injuring her reputation and feelings, merely because she happened to be the daughter of a poor man, against whom a Welch judge happened to make an unfounded accusation. As to the fact of the articles being found under the clothes in Franks's room, the child slept in the room with her parents, and the clothes were found in a deal box in her bed. So far Kenrick's case was disproved; but the most malignant part of the assertion was, that "this was before the late act giving a power to prosecute abettors;" as much as to say, that Franks was an abettor, and would have been prosecuted as such [hear, hear!]. This would have been proved, had it been true, when he moved, upon affidavits, for an information before the court of King's-bench. The inference was, therefore, plain. The House was bound to interfere, when it was so important for Mr. Kenrick to justify what he had stated in his letter to Coliett.—Well, next came the statement of the killing of the sheep and, because, forsooth, a bloody knife and a piece of paper were found in a particular spot, the unfortunate Franks was held to be guilty. Would the House for a moment entertain a belief that an individual was to be charged and confined to a prison upon such grounds? Again, it was said that Franks had for ten years been in the habit of nightly depredations in his neighbourhood; but not the slightest proof was brought forward in support of this assertion, and therefore he had, he conceived, an undoubted right, to say, that the assertion was unfounded. This had been repeatedly asserted in the Morning Chronicle; and that journal justly set forth, in contradiction to the statement, the very excellent character given 667 to Franks by the parties called upon his trial. Mr. Kenrick felt this; and, in the criminal information for which he moved against that journal, and the affidavits of the three or four neighbours whom he brought forward, not one word was said about Franks being a man of bad character. If, then, (he statement of Franks having been a man of bad character was true; if Mr. Kenrick was right in stating, that Franks had for years been in the habit of committing nightly depredations upon the neighbourhood, why did not that fact appear upon the face of these affidavits? After the evidence which had been given at their bar—after the admissions made upon all hands—he asked any hon. member to put his hand upon his heart, and say whether there was not before him sufficient ground for the course of proceeding which he had felt it his duty to adopt?—But it was said, and it was, he understood, true, that Mr. Kenrick had applied to Mr. Lawson, the clerk of the peace, to withdraw the proceedings, against Franks, upon the score of his former good character, although he had, on a former occasion, stated that his character was a bad one. From what had transpired, it was clear that Mr. Kenrick had involved himself in some such dilemma. In Mr. Kenrick's affidavit, he said, that he had written to Mr. Lawson, the clerk of the peace, a letter, of which he kept no copy, stating, to the best of hit recollection, how the said John Franks was circumstanced, and praying that the proceedings, against him might be withdrawn, upon the ground of his previous good character. If the previous character of Mr. Franks was so good, why was he committed to prison upon such light and inconclusive grounds? Even if the charge of taking a slab of timber of such trifling value were true, why should a man of such character be committed to prison? And, if his character of being a nightly depredator was true, why was he to be protected by the interference either of Mr. Kenrick or the clerk pf the peace? Was it consistent with the duty of a magistrate—wag it consistent with the character and dignity of a Welch judge—either to oppress an innocent individual in the one ease, or screen a guilty one in the other? Nay, more, was it consistent with the character of such an individual to keep back the witnesses necessary to support and prove a charges of felony? If the magistrate had found it necessary to 668 have the daughter taken before a magistrate, upon a charge of having stolen a pair of scissors and a little bit of silk—if he felt it necessary to proceed against Franks himself, under a conviction that lie had been a nightly depredator upon the property of his neighbours for the last ten years, why was it found necessary to tamper with public justice, and make efforts to screen a guilty individual from the punishment which he deserved? Why should this magistrate try to screen this nightly thief from the operation of the law, "if it could be done without his forfeiting his recognizances?" Was it not clear that Mr. Kenrick was, throughout, actuated by a wish to rid himself of a person whom he considered a troublesome and inconvenient neighbour, and get possession by some means of his freehold? He would put it in this way—Mr. Kenrick having this object in view, thought he would best accomplish it, first by getting Franks into prison, and then letting him know that he would best relieve himself by pleading guilty to a charge of which he knew himself innocent. By this means his little freehold would become forfeited to the Crown, and being close in Mr. Kenrick's neighbourhood, every man knew how possible it was for a person so desiring, to get possession of it. He maintained, that there was abundant proof of such an intention on the part of Mr. Kenrick. In his letter to the gaoler of the prison in which Franks was confined, he said, "Sir, I shall be obliged to you to inform me in what manner John Franks, committed by Mr. Y. Burgess, for stealing a plank, my property, has conducted himself since he has been in your custody. The facts of the ease are so short, and so clear against him, that, I cannot suppose he can entertain any have of acquittal. I have no animosity against him, and if I find he has conducted himself with propriety since he has been in your custody, and his ready to acknowledge his guilt, and is sensible and sorry for his misconduct, I shall be ready to do all in my power to induce the court to be as lenient to him as it can be when convicted, or he shall plead guilty." He (Mr. Denman) was amused when he first read this pompous promise of an effort to mitigate the sentence of the court upon an admission of guilt. It was in substance saying that if Franks would only confess his culpability he might escape, perhaps some, seven or fourteen years' 669 transportation. This attempt to extort a confession of guilt was, in his view, without a parallel. He did, then, impute to Mr. Kenrick, when he sought to obtain this confession of guilt from the unhappy Franks, that he had it in his own contemplation to induce him to abandon his freehold. In another place, when the unfortunate prisoner mentioned what was likely to be the conduct of the Benefit Society to which he belonged, in the event of his conviction, Mr. Kenrick said, he would use his efforts to procure the most lenient sentence, upon an avowal of guilt. The offer was refused with the indignant feeling of an innocent man. Then came the story of the rabbit-hutch, &c, of which they had heard so much. He was now talking, not of a magistrate of the country, not of a judge of the land, not of a judge of the great sessions of Wales, or of a recorder of a borough—but of the wrongs and sufferings inflicted upon a poor and unprotected individual. The hon. and learned member adverted again to the facts stated in the Morning Chronicle, relative to Mr. Kenrick—facts which had never been rebutted by that gentleman or his friends—and Went on to ask whether, if a person so Convicted of improper conduct, as that person had been, were now to be recommended to the office of magistrate, or Welch judge, or recorder of a borough, his majesty's ministers would feel it right to appoint him to any of those offices? Assuredly they would not; and, if he was unfit to be so; appointed, was he not unfit to be continued in any one of those offices? If all which he bad stated was true, and they had undeniable evidence of the facts, was it not a public scandal to continue Mr. Kenrick any longer in the high and important office of an administrator of justice? Let the right hon. gentleman opposite speak. Would he give to such Ma person the power of life and death, the whole extent of the judicial authority—which would be the case in the present Instance, if the colleagues of Mr. Kenrick were absent? Would any man be secure of fair trial before Mr. Kenrick, for a plank of wood, if the prosecutor was a respectable person? If the motive were toot corrupt in the present ease, it nevertheless showed a defect of judgment. It had been truly said that if the conduct of an individual, was such that he ought not to be appointed to a situation, he ought, for the same reason, to be removed from 670 any situation he might fill. Would Mr. Kenrick, he asked, be included after what had transpired, in a commission for an adjoining county? Would his majesty's approbation be given for his appointment to a higher post? If not, how could the government, having the power of displacing this person, and being called upon by duty to do it, continue him in office? Was it necessary that he should actually disgrace himself on she bench before he could be removed? In reply to the objection which he had heard, that a lawyer should not bring forward such a question as this, it should be followed up by a resolution to occlude lawyers from sitting in parliament; for it was such persons who took the liveliest interest in these questions. He had also been told, that a person holding a judicial office ought not to have preferred this charge; but he hoped he could say that no 'member could be more free from improper motives, or less disposed to take up such a subject unnecessarily than himself. He hoped that gentlemen would feel themselves called upon to entertain this motion. He had performed what he conceived to be a solemn duty, in bringing it before the House. He considered that the charges were all proved, except that which related to Mr. Kenrick's application to withdraw the prosecution on account of Franks's good character; and he would accordingly move, "That it appears to this House, that the charge against William Kenrick, esquire, one Of his majesty's justices of great session in Wales, has been fully established by evidence, except so far as it imputes to him that be applied for leave to withdraw his prosecution against John Franks, on account of his good character."
The Attorney General
said, he rose to oppose the motion, giving his hon. and learned friend, at the same time, full credit for having introduced it solely from a pure and conscientious sense of public duty. But, at the same time, after all that he had heard, he felt bound to come to a conclusion very different to that at which his hon. and learned friend had arrived. He felt that his hon. and learned friend had no right to bring into that House one grave and specific charge, and then turn round and call upon them to convict the accused party upon another. His hon. and learned friend stated, that he did not wish to proceed upon his first charge against Mr. Kenrick, but that there was another and a graver charge of which that 671 gentleman had been guilty. He begged the House to bear in their recollection the original charge. It was, that Mr. Kenrick had preferred a charge of felony against Franks, and, without giving sufficient evidence, had had him committed and brought to trial. There was no accusation of corrupt, motives or of malice; yet his hon. and learned friend said, not that this charge was proved, but that another charge of a deeper character had been substantiated, which Mr. Kenrick had never been called upon to answer. Had this proceeding taken place before another tribunal, his hon. and learned friend would have been told, that he was not competent to adopt this course, that he must confine himself to the record. The course was unjust to Mr. Kenrick, for this obvious reason: could the House be sure that if the charge had been differently worded, Mr. Kenrick would not have adduced evidence to refute it? This was enough to show the unjust course pursued by his hon. and learned friend. But, was it any offence to prosecute a man on insufficient evidence? Could any civil action be maintained, could any verdict be got, against a man on account of such an act, unless malice could be shown? The terms of the charge contained no crime cognizable by law. Mr. Kenrick was charged with having preferred an accusation on insufficient evidence; but, this very evidence was adduced before Mr. Burgess, who committed the prisoner. It followed, then, that Mr. Burgess must be charged as well as Mr. Kenrick. On that very evidence, too, the grand jury found the bill. No undue influence over the witnesses was imputed; there was nothing to impeach their character: they told the same story to Mr. Kenrick, to Mr. Burgess, and to the grand jury; and the House was now called upon to say that Mr. Kenrick was actuated by malicious motives. His hon. and learned friend said, that the property was of trifling value; it might be so: the owner of the property was the fittest person to judge of the propriety of prosecuting. The law said, that the act of taking it was a crime; and if the party prosecuted in a legal manner, and without corrupt motives, where was the crime? With regard to the slab, it was admitted on all hands that the property had been found on Franks's premises, and the conduct of the different branches of his family was of a nature to excite the strongest suspicions. When the bailiff or 672 servant of Mr. Kenrick first proceeded to Franks's, he measured the slab of timber, and returned to his master, On his going there a second time, the wife of Franks asked him, in a bullying tone, what business he had there? and added, before a word respecting Mr. Kenrick had been spoken, "that the timber did not belong to Mr. Kenrick." The son of Franks, too, a lad about fourteen, blustered and said, that the piece of timber had been the property of his father for years. To this, the servant of Mr. Kenrick answered by cutting a piece of the slab, and pointing out that, from its green state, it could not have been more than a month cut. It was not asserted now, that the father stole the timber, but the conduct of the family was of a nature to cause a suspicion that it had been taken by some of his family, with his privity. Now, with respect to the cottage, what was the evidence upon that subject? Why, Mr. Kenrick stated, that at one time he had offered to purchase the cottage; but that afterwards, on Franks's refusal to sell it, he had abandoned the intention altogether, and that took place six years ago: and so completely had he abandoned the intention, that though a better and more convenient cottage, immediately contiguous to the spot, had been offered, he declined to purchase it. Yet, although such was the fact, it was now stated, that he had instituted this proceeding against Franks for the purpose of obtaining possession of this cottage. Still, although Mr. Kenrick swore he had no malicious or corrupt view, but that he acted solely from a sense of the public duty he had to discharge, this charge was still persisted in, contrary not only to the probability of the case, but to the positive affidavit of Mr. Kenrick. The other alleged ground was, Mr. Kenrick's wish to make a footpath over Franks's ground. What was stated on oath on this subject by Mr. Kenrick? Why, that he had given a portion of his land in exchange for some allotments given to Franks and Gates, of less value than his own portion of land, and that he had told Franks, a pathway ought to be made across his allotment, in order to enable Gates, whose cottage was immediately contiguous, to enjoy more fully his own allotment. Yet, this had been insisted on as a proof of a corrupt motive on the part of Mr. Kenrick, and of hostility towards Franks.—Another circumstance stated was, that Mr. Kenrick had tampered with Franks's 673 wife, attempting to induce her, during her husband's confinement, to make an application for relief to the overseers, by which she would be compelled to sell the cottage. This statement was also positively denied. Its truth, if there was any truth in it, might have been established by witnesses at the bar, and yet there had not been any evidence on that subject. If, therefore, the House asked whether Mr. Kenrick's motives were malicious and corrupt, was not the whole charge negatived? In his opinion, it was. So much, then, for the first part, which, he thought, had been negatived by Mr. Kenrick's testimony, to impeach which, not even an attempt had been made.—This brought him to the consideration of the second part of the charge: that which imputed to Mr. Kenrick that he had published a libel on the character and conduct of Franks. Now, that it was a libel, was yet to be proved; and he had always understood that the burthen of proof lay upon the prosecutor. Because it was not proved, the House was not to draw inferences on the subject; they were not to call on Mr. Kenrick to answer that which had not been established against him. Yet such appeared to have been the doctrine of his hon. and learned friend, who had said, "though, it is true, I have not established the charge of the publication of the libel by Mr. Kenrick, in the Stamford newspaper, yet Mr. Kenrick is bound to clear himself from that charge." What was now stated, and that, too, by his hon. and learned friend, was, that a man was bound to clear himself from a charge not made out against him by the public prosecutor. Even though that charge had been made out, he apprehended there was no very great crime in writing a letter to a private connection, in explanation of a circumstance respecting which he had requested information. Mr. Collett had written a letter to Mr. Kenrick, and this alleged libel was the letter written in answer to that of Mr. Collett. Before he adverted to the terms of this letter, he wished to call the attention of the House to part of the evidence relating to the question whether it had been published by Mr. Kenrick. The met was, that it had been published by Drakard, under the direction of Mr. Collett; but Drakard did not state that he had been authorized by Mr. Kenrick to publish the letter. The attorney for the Morning Chronicle had called on Mr. Kenrick, and had asked him whether 674 that letter was his—not whether it had been published by his authority or with his knowledge, but whether it was his—and Mr. Kenrick refused, as he was at liberty to do, to answer the question. Mr. Collett, on being applied to, said he would not give up the original, and lie himself would take the consequence. In his opinion, there was no evidence whatever of publication. What was the nature of this letter? An application had been made to Mr. Kenrick to explain some circumstances which had been stated respecting him, and he had written an answer which was subsequently published. Now, when there was no evidence that that letter had been published by the authority of Mr. Kenrick, was it for that House to take notice of it, written, as it had been, under such peculiar circumstances? Did his learned friend mean to say that Mr. Kenrick was bound to give evidence that he had no concern in the publication? But, after all, suppose he had, was it not too much to say, that when he was goaded as he had been, day by day, he was to be strictly called to account, because, in a moment of irritation, he had gone beyond the letter of what was capable of proof? What were the charges in this letter? One related to a petty theft committed by the daughter, in which the father was stated to have been an abettor. That charge was not one got up by Mr. Kenrick for the purposes of the moment; for it appeared, by the statement of Franks himself, that when the charge was first made, Mr. Kenrick had got up in a great passion, and had said, that if he could get hold of Franks, he should be made an example of. All this had passed in a room in a small cottage, and that the articles alleged to have been stolen by the daughter, were articles of petty theft, which could hardly have been concealed from the knowledge of her parents.—He admitted that with respect to the sheep the charge must be allowed, on the testimony of Mr. Peters, to have been unfounded. But though that charge was not true it did not follow that Mr. Kenrick might not honestly have believed it at the moment. He said this injustice to Mr. Kenrick, or tie should rather say, as declaring to the House his own impression on the subject. He thought there was no sufficient evidence to support the present charge. In the first place, there was none that the letter had been published by the desire of Mr. Ken- 675 rick. He merely now, as an individual, impartially stated the evidence on which he founded his own opinion. No man felt more than he did the great importance of keeping the seat of justice pure: no man was more fully convinced how much depended on the character of the individuals who filled the seats of public justice, nor of the absolute necessity that their motives and conduct should be unsuspected; and he would be the last to support any individual who had proved himself unworthy of administering justice to a free people. His right hon. friend behind him had reminded him of one point of the evidence which he had omitted, and which regarded the conduct of Mr. Kenrick after Franks had been committed to prison. It was suggested in the Morning Chronicle, that Mr. Kenrick, after five or six weeks had elapsed, found himself in an awkward situation, and was desirous to get out of it. Now, the evidence on that point showed, that a few days before the sessions commenced, Franks's wife applied to Beall, to intercede with his master on behalf of her husband, and on his representations, Mr. Kenrick said he would write to the gaoler to know how Franks had conducted himself; for that if he had manifested any signs of contrition, he would take care the sentence should be lenient. If the House believed that Mr. Kenrick thought Franks innocent, and yet wished him to plead guilty, undoubtedly it would be a serious offence; but there was no evidence of that, while, on the other hand, the case was very different if Mr. Kenrick believed Franks to be guilty. In that case, he might be of opinion that, though guilty, Franks had been sufficiently punished by the three months' imprisonment he had already suffered, and that after such a punishment it was likely he would return a reformed member of society, and, for that reason, Mr. Kenrick determined to use his influence to obtain a very lenient sentence. This had come to the knowledge of Franks's wife, and she had said, that the leniency of the sentence would be utterly unavailing, for that Franks was a subscriber to a benefit fund, and that if he was convicted, he would, by that conviction, forfeit all title to relief from it. Mr. Kenrick then said, he would interfere to prevent the prosecution being pressed. Under similar circumstances, what gentleman was there in that House who would not do the same? Franks had 676 already suffered punishment, which Mr. Kenrick deemed sufficient to have reformed him, and therefore, to prevent his conviction taking place, he wrote a letter to the clerk of the peace, who sent an answer, that the prosecution could not be given up without the recognizances being forfeited. His learned friend had said, that Mr. Kenrick ought to have persevered strictly in the prosecution. From that opinion he differed. The two witnesses were bound to appear, but there was no such obligation on Mr. Kenrick, and he was therefore fully at liberty to say, that the witness who was under his control, and whose testimony was most material, should not attend the trial, and that he would not employ counsel against the prisoner. He did so, and when the case was called on, as there was no counsel to press for a conviction, nor any witness to give testimony, Franks was discharged. There was no gentleman in the House who would not do the same, when there was no obligation to continue a prosecution, that, if successful, must end in the ruin of the prisoner's family. Was this, too, to be imputed to Mr. Kenrick, as proceeding from a corrupt and hostile motive towards Franks? The statement that Mr. Kenrick was desirous Franks should plead guilty, could not be reconciled with the fact that he would not pursue the prosecution, and that he kept back a witness who could swear to that most important circumstance, of the slab having been in Franks's possession. How could it be said, therefore, that he had desired Franks to plead guilty, when he did not use the means in his power to pursue that prosecution with success? This was the third and last charge against Mr. Kenrick, and this, he thought, was answered as fully as the other two—Before he sat down, he would allude to the prejudice which had gone abroad against Mr. Kenrick, upon what had been done in the court of King's-bench. It was generally supposed that the judges of that court had investigated the matter, and had given their judgment against Mr. Kenrick on the merits of the case. Such was not the fact. One counsel only, and that counsel employed for the defendant, had been heard, when the court decided the question on a ground foreign to the merits of the question. Their ground of decision was, that as the alleged libel on Mr. Kenrick had been published, that gentleman had his remedy by indictment 677 for libel, to which they would leave I lira. As to the costs, when the court were asked to grant them, their lordships said, that if the defendant insisted on having his costs, they must hear the other side; the question of costs, therefore, was not pressed. He said this by way of removing a prejudice which had gone abroad against Mr. Kenrick, as if the court of King's-bench had, in fact, decided against him on the merits of the case. He had now only to observe, that he had known Mr. Kenrick in early life, and afterwards in courts of justice, and had never known him to do any thing that was improper. He had also been employed as an advocate against that gentleman in the court of King's-bench. He did not know what were the exact limits of the duties of a counsel, but his impression was, that it was the duty of a counsel zealously to fulfil the charge consigned to him, without prejudice or partiality, and without regard to consequences, whatever they might be. With such ideas of the duty of a counsel, he had appeared against. Mr. Kenrick, discharging from his mind all partial recollections; and now, acting as a member of parliament, and called upon to give his opinion on a grave and serious charge, he felt himself bound to say that he considered it not proved, and that he must therefore give a decided negative to the motion.
§ Mr. Denman
shortly replied. He said, that under all the circumstances of the case, he should not press the House to a division; but he was, at the same time, bound to declare, that his opinions remained unaltered, and that if he had the giving or refusing of judicial offices, he would not confer any situation on Mr. Kenrick, Neither had his hon. and learned friend ventured to declare, that if he had such power he should consider Mr. Kenrick a fit object of judicial nomination. It was easy to anticipate what would be the result of his motion; but he was nevertheless sure that the people of England would not consider themselves well used, if Mr. Kenrick was continued in office. He decidedly differed from the hon. and learned gentleman as to the effect of the evidence in the case; particularly as to the fact of Mr. Kenrick's having kept back the material witness at Franks's trial. He did not believe that that witness could have proved any thing more than had been proved in his absence. If the House had not been already annoyed by the length 678 of these discussions, he would have pressed this proceeding further. His opinion, he repeated, remained unaltered. He had done what he considered to be his duty, and should leave the case with the House.
§ The resolution was then put, and negatived.