i8t0d. 
me by the affidavit which you have trans- 
nutted to me;-and my answers therefore 
need involve in them no general discus- 
sions upon the principles of civil govern- 
ment, which inthe mere abstract are 
not often useful, nor always intelligible. 
The proposiuons to which my answers 
are meant strictly to apply, are 
First, Whether the facts charged by 
the aflidavit, on which your Court of 
King’s Bench is proceeding against the 
magistrates of Leitrim, are sufficient to 
warrant any criminal prosecution for a 
misdemeanor whatsoever 2 
Secondly, Whether, supposing them 
sufficient to warrant a prosecution by 
information or indictment, the court has 
any jurisdiction to proceed by attach- 
ment ? 
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 es- 
tablish nor exclude guilt in the .defend- 
ants. In one state of society such pro- 
ceedings might be highly criminal; and, 
in another, truly virtuous and legal. 
To create a nationai delegation amongst 
a free people, already governed. by re- 
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 de- 
termine the quality of the-act, and the 
guilt or Innocence of ¢he actors. 
If it points (no matter upon what ne- 
cessity) to supersede orto controul the 
existing government, it is self-evident 
that it cannot he tolerated by its laws, 
It may be aglorious 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 repre- 
sentatives, 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 de- 
fendants could not demur to; but he 
Monrutx Mac. No, 199. 
Lord Erskine’s Opinion on Siammary Attachment. 
44G 
could not accomplish this without pute - 
ting 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 judzes of the 
state of the nation, and the most deeply 
interested im 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 yood 
government, or sought seditiously to dis- 
turb it. The one orthe other of these 
objects would be collected at the trial, 
from the conduct of the defendants in 
summoning the meeting, and the pur- 
poses of it when met. ~ 
Ifthe jury saw reason, from the evi- 
dence, 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 inlaw 
to convict them; but if, on the other 
hand, their conduct appeared to be yvin- 
dicated 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 departure from accustomed forms 
in the manner of ussembling, nor any in- 
correct 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 cf either 
of these offences, the crown (as I before 
observed) must aver the criminal inten- 
tion, which is the essence of every crime; 
and these averments must he either pro- 
ved at the trial, or, if to be inferred 
prima facie from the facts themselves, 
may be rebutted by evidence of the de- 
fendant’s inuocent purposes. If the cri- 
minal intent charged by the information 
be not established to the satisfaction of 
the jury, the information which charges 
it is not true; and tliey are bound to 
say so by a verdict of acquittal. 
Iam 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 pro- 
secution ought to depend upon the opi- 
nion which the people of Ireland, form. 
ing a jury, shall entertain of their inten- 
tion in summoning the meeting, and the 
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