On the 20th of May Fox moved for a Grand Committee on courts of justice, to inquire into some late decisions of the courts in cases of libel. Thomas Erskine, the eloquent advocate, had lately, in the case of the Dean of St. Asaph, delivered a most brilliant and effective speech on the right of juries to decide both on fact and on law in such cases, the duty of the judge being only to explain the law. Fox adopted this doctrine of Erskine, and framed his speech in the most glowing terms. He complained, however, that such was not the practice of the courts, and he particularly animadverted on the custom and the doctrine of Lord Mansfield on this subject. He observed that in murder, in felony, in high treason, and in every other criminal indictment, it was the admitted province of the jury to decide both on law and fact. The practice in the case of libel was an anomaly, and clearly ought not to be so. He said that the doctrine which he recommended was no innovation; it had been asserted by John Lilburne, who, when prosecuted for a libel under the Commonwealth, declared that the jury were the real judges, and the judges themselves mere cyphers, so far as the verdict was concerned; and Lilburne had been acquitted, in spite of the judge and of the influence of Cromwell. He reviewed the doctrines of the Stuarts regarding libel, and observed that these could not be wrong then and right now. He contended that the late practice had been a serious inroad on the liberty of the press, and noted the case of the printer of the Morning Herald, who had been tried for merely commenting strongly on the sending of an armament to Nootka Sound, and on the conduct of Parliament in granting supplies for this purpose. He had been condemned to a year's imprisonment and to stand in the pillory. Pitt observed that he had always, since he had had a place in the Ministry, condemned the use of the pillory, and that there could be no difficulty in remitting that part of the sentence in this particular case. He supported Fox's view of the law, and recommended him to bring in two short Bills, instead of going into committee on the subject. Fox followed this advice, and brought in two Billsone to remove doubts respecting the rights and functions of juries in criminal cases; and the other to amend the Act of the 9th of Queen Anne for rendering the proceedings upon writs of Mandamus and informations in the nature of a Quo Warranto more speedy and effectual. The first Bill passed the Commons on the 2nd of June, but was thrown out in the Lords, through the influence of Chancellor Thurlow, who had never forgiven Pitt his contempt of his conduct on the Regency question during the king's malady. This defeated the object of Fox during this Session, but it was carried in the next, and Lord Thurlow's opposition lost him his position. The Great Seal was put into commission.

It was the 10th of November when Mar, aware that Argyll was advancing against him, at length marched out of Perth with all his baggage and provisions for twelve days. On the 12th, when they arrived at Ardoch, Argyll was posted at Dunblane, and he advanced to give them battle. The wild, uneven ground of Sheriffmuir lay between them, and it was on this spot that Argyll on quitting Stirling had hoped to meet them. He therefore drew up his men on this moorland in battle array, and did not wait long for the coming of the Highland army. It was on a Sunday morning, the 13th of November, that the battle of Sheriffmuir was fought. Argyll commanded the right wing of his army, General Whitham the left, and General Wightman the centre. He[31] calculated much on this open ground for the operations of his cavalry. On the other hand, Mar took the right wing of his army, and was thus opposed, not to Argyll, but to Whitham. The Highlanders, though called on to form in a moment, as it were, did so with a rapidity which astonished the enemy. They opened fire on Argyll so instantly and well, that it took the duke's forces by surprise. The left army retired on Stirling pursued by Mar. Argyll was compelled to be on the alert. He observed that Mar had drawn out his forces so as to outflank him; but, casting his eye on a morass on his right, he discovered that the frost had made it passable, and he ordered Major Cathcart to lead a squadron of horse across it, while with the rest of his cavalry he galloped round, and thus attacked the left wing of Mar both in front and flank. The Highlanders, thus taken by surprise, were thrown into confusion, but still fought with their wonted bravery. They were driven, however, by the momentum of the English horse, backwards; and between the spot whence the attack commenced and the river Allan, three miles distant, they rallied ten times, and fairly contested the field. Argyll, however, bore down upon them with all the force of his right wing, offering quarter to all who would surrender, and even parrying blows from his own dragoons which went to exterminate those already wounded. After an obstinate fight of three hours, he drove the Highlanders over the Allan, a great number of them being drowned in it. Mar at this crisis returned to learn the fate of the rest of his army. He found that he had been taking the office of a General of Division instead of that of the Commander-in-Chief, whose duty is to watch the movements of the whole field, and send aid to quarters which are giving way. Like Prince Rupert, in his ardour for victory over his enemies in front of him, he had totally forgotten the centre and left wing, and discovered now that the left wing was totally defeated. He was contented to draw off, and yet boast of victory.

Grenville rose and defended the Stamp Act. He denied that the right of taxation depended on representation. He complained justly, that when he proposed to tax America, there was little opposition in that House. He contended that protection and obedience were reciprocal, and he exposed the fallacy of Pitt's distinction between taxes and duties. There was much justice in these remarks. The words of Grenville, so pointedly directed against him, immediately called up Pitt again. He had spoken; it was contrary to all rule, but the lion of Parliament broke recklessly through the meshes of its regulations, and when he was called to order the members supported him by cries of "Go on! go on!" He went on, severely castigating Grenville for complaining of the liberty of speech in that House; and dropping in his indignation the terms of courtesy towards the late Minister of "honourable" or "right honourable," said simply"Sir, the gentleman tells us that America is obstinateAmerica is almost in open rebellion. Sir, I rejoice that America has resisted. Three millions of people so dead to all the feelings of liberty as voluntarily to submit to be slaves, would have been fit instruments to make slaves of all the rest." He then exposed the cases quoted by Grenville to show that taxation in this country had been imposed without representation, showing that these very instances led to immediate representation. "I would have cited them," he continued, "to show that even under arbitrary reigns Parliaments were ashamed of taxing a people without their consent. The gentleman asks when the Americans were emancipated? But I desire to know when they were made slaves?" He then touched on the true sources of benefit from our colonies, the profits of their trade. He estimated the profits derived from the American commerce at two millions sterling, adding triumphantly, "This is the fund that carried us victoriously through the late war. This is the price America pays us for protection." He then alluded to the comparative strength of the two countries. "I know the valour," he said, "of your troops. I know the skill of your officers. In a good cause, on a sound bottom, the force of this country can crush America to atoms. But in such a cause as this your success would be hazardous. America, if she fell, would fall like the strong man. She would embrace the pillars of the state, and pull down the constitution along with her." Here, had the Government been wise, they would have stopped; but they were not contented without experiencing a third defeat. The next morning, the 20th of December, they returned to the charge with an indictment against Mr. Hone for publishing a parody on the Athanasian Creed, called "The Sinecurist's Creed." The old Chief Justice was again on the bench, apparently as resolved as ever, and this time the defendant, on entering the court, appeared pale and exhausted, as he well might, for he had put forth exertions and powers of mind which had astonished the whole country and excited the deepest interest. The Attorney-General humanely offered to postpone the trial, but the defendant preferred to go on. He only begged for a few minutes' delay to enable him to put down a few notes on the Attorney-General's address after that was delivered; but the Chief Justice would not allow him this trifling favour, but said, if the defendant would make a formal request for the purpose, he would put off the trial for a day. This would have injured the cause of the defendant, by making it appear that he was in some degree worsted, and, fatigued as he was, he replied, promptly, "No! I make no such request." William Hone, on this third trial, once more seemed to forget his past fatigues, and rose with a strength that completely cowed the old and fiery judge. He did not desist till he had converted his dictatorial manner into a suppliant one. After quoting many eminent Churchmen as dissentients from the Athanasian Creed, and amongst them Warburton and Tillotson, he added, "Even his lordship's father, the Bishop of Carlisle, he believed, took a similar view of this creed." This was coming too near; and the judge said, "Whatever that opinion was, he has gone, many years ago, where he has had to account for his belief and his opinions. For common delicacy, forbear." "O, my lord," replied the satisfied defendant, "I shall certainly forbear." The judge had profited by the lesson to-day: he gave a much more temperate charge to the jury, and they required only twenty minutes to return the third and final victory of Not Guilty. Never had this arbitrary Government suffered so withering a defeat. The sensation throughout the country was immense. The very next day Lord Ellenborough sent in his announcement of retiring from[131] the bench, and in a very short time he retired from this world altogether (December 13, 1818), it being a settled conviction of the public mind that the mortification of such a putting-down, by a man whom he rose from his sick-bed to extinguish, tended materially to hasten that departure.

The calculations of no political party had ever been more completely falsified than those of the Jacobites and their congeners the Tories on the death of the queen. They had relied on the fact that the House of Hanover was regarded with dislike as successors to the throne of England by all the Catholic Powers of Europe, on account of their Protestantism, and many of the Protestant Powers from jealousy; and reckoned that, whilst France would be disposed to support the claims of the Pretender, there were no Continental countries which would support those of Hanover, except Holland and the new kingdom of Prussia, neither of which gave them much alarm. Prussia was but a minor Power, not capable of furnishing much aid to a contest in England. Holland had been too much exhausted by a long war to be willing to engage in another, except for a cause which vitally concerned itself. In England, the Tories being in power, and Bolingbroke earnest in the interest of the Pretender, the Duke of Ormonde at the head of the army, there appeared to the minds of the Jacobites nothing to fear but the too early demise of the queen, which might find their plans yet unmatured. To this they, in fact, attributed their failure; but we may very confidently assert that, even had Anne lived as long as they desired her, there was one element omitted in their calculations which would have overthrown all their attemptsthe invincible antipathy to Popery in the heart of the nation, which the steadfast temper of the Pretender showed must inevitably come back with him to renew all the old struggles. The event of the queen's death discovered, too, the comparative weakness of the Tory faction, the strength and activity of the Whigs. The king showing no haste to arrive, gave ample opportunity to the Jacobiteshad they been in any degree prepared, as they ought to have been, after so many years, for this great crisisto introduce the Pretender and rally round his standard. But whilst George I. lingered, no Stuart appeared; and the Whigs had taken such careful and energetic precautions, that without him every attempt must only have brought destruction on the movers. The measures of Shrewsbury were complete. The way by sea was secured for the Protestant king, and the Regency Act provided for the security of every department of Government at home. Poland, abandoned to her own resources, made a brave but ineffectual defence. The Russians received several severe checks in their advance. At Zadorsk, at Palorma, and finally at Dulienska, the Poles fought them gallantly. At the last-named battle, on the 17th of July, the heroic Kosciusko made terrible havoc of the Russian lines, and was only prevented from utterly routing them by his flank being turned by another arrival of Russians, whom the Emperor Francis, of Austria, had allowed to march through Galicia. The Russians advanced to Warsaw, took regular possession of it, and of all the towns and military[399] forts throughout the country. They dismissed the patriot officers of the army, and dispersed the army itself in small divisions into widely-separated places. They abolished the new Constitution, thrust the burgher class again out of their newly-acquired privileges, and put the press under more ignominious restrictions than before. They confiscated the estates of nobles who had advocated the new reforms. Both Catherine and her Ministers treated the idea of any partition of Poland as the most groundless and ridiculous of notions. They pointed to the invasion of Germany already by Custine, the French Revolutionary general, and justified the temporary occupation of Poland as necessary to the security of both Poland and the neighbouring states. We must leave the three robber Powers, Russia, Prussia, and Austria, therefore, gloating over their prey, and ready to rend it asunder, in order to continue the narrative of the wild explosion of France. News arrived that the king, by proclamation, had prohibited the export of arms and military stores to America. This news was received with a burst of rage. The people of Rhode Island, who had burnt the king's schooner, The Gaspee, seized forty pieces of cannon on the batteries defending the harbour, and carried them into the country. The people of New Hampshire surprised a small fort called William and Mary, garrisoned only by one officer and five men, and carried off the ordnance, arms, ammunition and military stores. Everywhere orders were issued for the purchase of arms and ammunition; for training the militia; for erecting powder mills, and manufactories of arms and shot, as well as for making saltpetre. So far as it depended on the people of Massachusetts, it was already rebellion. Still, however, the other colonies, except, perhaps, Virginia, were far from this bellicose temper. The colonies, in general, thought the measures of the late Congress too strong; and the State of New York, in spite of the impetuosity of such men as Jay, carried a vote rejecting the resolutions of the Congress.