of frankpledge, and the formal fwearing of all perfons to keep the King's peace is difufed, yet it is a matter worthy the attention of all perfons who hear me, that every man is at this day ftill bound by his natural allegiance, and by tacit obligation under which he is born: and in return for the benefit and protection of the laws, he is still held in duty to keep and maintain the peace of the King and the land.

And it was upon the ground of this allegiance, in view of frankpledge, that the ftatute of Hue and Cry was made: all perfons being charged in the King's name to aid and affift.

When I obferve that this act of 25 George 2. is declarative of the common law, in refpect to the punishment of the offence, it may be observed in general, that the penal ftatute law has grown to fo immenfe a fize as to make us think less than we fometimes ought to do of the officers and penalties at common law. This act particularly regards the mode of procefs. The fubterfuges of old offenders, more accurately verfed in the means of efcaping juftice than even their own follicitors or counfel, have occafioned acts of parliament to be made to reach offences with greater certainty in the process.

I know of no acts which the policy of the legiflature has dictated in this view that deferves to be applauded more than the act by which these parties are profecuted: and it does infinite honour to the Judge who drew it; not more diftinguished by his birth than his talents, the Honourable Mr. Juftice Bathurst.

As this act, the 25th of George 2. c. 36. is but little known, and I believe this is the first inftance

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in which it has been made use of, and carried into execution in this place, it will be for the benefit of the people, who make the audience here, to be acquainted with its contents. By the 5th fection of this act, the conftable, upon notice of any two inhabitants of a parish paying fcot and lot, that any perfons keep a diforderly house, is obliged to go before a justice; they then, upon oath that they can prove, are to enter into recognizances of 201. each to give evidence; and the conftable in 30 1. to profecute; and 10%. on conviction is to be paid by the overfeers to each of the parishioners fo informing, upon conviction of the offenders; and the overfeers to be reimbursed by the parish.

So that the policy of this act is to oblige the overfeers themselves to inform, in order to fave the money of the parish. It also obviates the false notion of dishonour in laying informations of this kind, by rendering such informations neceffary.

A common informer, that is to fay, a perfon who make a general trade of it, is certainly an odious character, but in fuch cases as thefe, where the morals, peace, and even fafety of families, in a whole neighbourhood is concerned, informations must be confidered in a very different light. Ill Fame, Notoriety, Vicinity, and a general diforderly manner of living, will justify every fuch fort of prosecution, which is an act of merit towards the public.

Having mentioned the words ill fame, and bad repute, it leads me to obferve, that the common law has not defined or ftrictly drawn the line to fhow what fort of houses are houses of bawdry. An indictment may even be generally laid of infamy and bad repute, at common law and fo Lord Mansfield, and the court of King's Bench, held in

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the cafe of the King, v. Higginson. No acts of parliament have defined the offence: in fhort, it was impoffible to define that which the law has better left to the idea of a jury: who being of the vicinity themselves cannot fail of being perfect judges of what houses may rightly be held to be Houfes of Bawdry, Ill Fame, or Disorderly, and the Keepers of them of course to be liable to the punishment inflicted by the laws.

With respect to evidence in fuch cafes I muft obferve to you, that lefs evidence is neceffary to induce a Grand Jury to find a bill, than may be fufficient to convict; because the evidence for the finding the bill is of the nature of the evidence upon examination of criminals in order to commitment; both being only in order to fomething farther, and as a foundation for a trial.

In fpeaking of evidence I muft obferve, that in cafes like thofe now before you, the turpitude of any witness is no objection either to their competency or credibility; unless there appears revenge a gainst the criminal: for without the evidence of perfons of ill fame, and diforderly lives, thofe perfons who are the principal abetters, perfuaders, and maintainers of fuch evil and miferable courses, cannot be brought to justice.

Gentlemen, I have endeavoured to clear the way for you; and I enter the more willingly into this detail upon account of this audience; and that the proceedings in the criminal laws may be well understood, in order that they may be well executed.

So full and large a differtation is the more proper for me, and in my place, in order that many of the young perfons of this Univerfity who are near me, and who are destined, fome of them, one day or o

ther

ther to profefs and practice the law, may understand the admirable conftitution of their country in these particulars, and may admire with you, that which we are all equally bound to fupport, the elegant fimplicity of the laws in criminal trials, which our ancestors, having built up with fo much folidity, confecrated to liberty.

I cannot conclude this charge, Gentlemen of the Jury, without publicly commending the zeal and diligence of a very good officer, the prefent high conftable, and faying a word of the nature of his office. It is an office of great truft and powers, and of a much antienter date as confervator of the peace by common law than that of the juftices of the peace, who were created by ftatute; and whose powers in fome refpects are thought to break in upon the line of the Great Charter. This officer may do many things upon view: and the petty conftables, who, I defire will take notice what I fay, are to obey him as their commanding officer, or to fuffer upon complaint duly made and proved for their disobedience; fubordination being the life of civil as well as of military difcipline. I fling out this because there has been lately an affault upon this officer in the discharge of his duty. And now I mention him as a confervator of the peace, I cannot omit the speaking of other confervators of the peace of a higher rank and character; left any perfons thould imagine, that their power is cealed, or to be refifted with impunity. I mean the Proctors of this Univerfity. By common law and ufage, and by the charters and privileges of both the Univerfities of this land confirmed by act of parliament, the Proctors in bóth Univerfities are the nightwatch and ward established by immemorial custom, and may apprehend and detain diforderly and fufpected perfons, and those who break the peace, upon their own view without special warrant to apprehend and

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detain, in the fame manner as any other peace officers and perfons keeping watch and ward in cities and great towns by law may do. For which fee the Statutes 13 Ed. 1. c. 4. 5 Hen. 4. c. 3.

Many people have entertained abfurd notions, and others have industriously cultivated them, that the verdict at the affizes in the cafe of Mart and his wife was decifive against the power of the ViceChancellor and the Proctors of the University.

In the cafe of Mart and his wife against Dr. Ellifton, Vice-Chancellor, and others, upon a motion for a new trial in the King's Bench, Lord Mansfield is faid, upon good authority, to have expreffed his furprize that any fet of men should have looked upon that caufe as a popular one; or wish to loosen the difcipline of the University: that the cause was tried under particular circumftances; and that the general rights and privileges of the University remained unimpeached by the verdict at the affizes. Sir Eardly Wilmot obferved, that from what appeared on the trial, the rights of the Univerfity were rather established than impeached; because it appeared, that no fuit had been commenced in confequence of the exercise of those rights for 200 years: fo that they never had the fanction before which they have now had.

This cafe of Mart against Dr. Elliston has been much talked of, and little understood in this place. I will ftate it fully; because it will have its ufes in the future government of this place: and it will remove, I am confident, many prejudices and errors.

This cause in the firft inftance, I mean on the trial at the affizes here, turned upon a special plea. The declaration of the plaintiff was for imprisonment of the plaintiff by the Vice-Chancellor and

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