it  e:3ccc|>ts  ^om  its  protection  by  tb^  sixteenth
aeotion,  persons  who  may  have  committed  any
*'  capital  ofience"  in  Scotland  or  Ireland.  If
the  principle  of  that  exception  were  now  open
to  discussion,  sure  I  am  that  much  might  be
said  against  its  policy.  On  the  one  side,  you
would  have  to  consider  the  mischief  of  letting
ihis  statute  protect  acapital  offender  from  punish-
ment, by  prohibiting  his  transmission  to  that

-  jurisdiction


427

jariisdictiDh  ^ere  his  crime  was  committed,  anil
where  alone  he  could  be  tried*  On  the  other,  you
would  have  to  weigh  the  danger  to  be  feared  ftoxa
the  abuse  of  such  a  power,  which  as  the  habeaii
ccH'pus  act  stood,  could  not  be  resorted  to  in  any
ordinary  way ;  but  was  cotlfihed  to  the  soul  axid
esdnsire  exercise  of  the  advisers  of  the  p^reroga*
tive.  You. would  have  to  co^isider  whether  it  was
more  likely  that  it  would  be  used  agdirist  the
guilty  or  the  obnoxious ;  whether  it  'was  mom
likely  to^  be  xm^d  as  an  instrument  of  justice
against  the  bad,  or  a  pretext  of  oppression
against  the  good;  and  iSnally,  whether  you  might
not  apply  to  the  subject  thb  humane  maxim  df
our  law*-*tiiat  better  it  i>  that  one  hundred  guilty
men  should^^scape,  than  that  one  innocei^t,  and,
let  me  add,  meritorious  man^  should  su£fer.  But
cor  ancestors  have  considered  the  questi^*,  they
have  decided;  and,  until  we  are  better  satified
th^n  I  fear  we  can  be,  that  we  have  not  degene*
iafeed~ftom  their  virtue,  it  can  scarely  become  us
to  pass  any  light  or  hasty  condemnation  upon
idieir  wisdom.  In  this  great  statute,  then  my
lords^  you  have  the  line  of  demarcation  between
the  prerogative  and  the  people,  as  well  as  betufteen
the  criminal  law  and  the  subject,  defined  with  all
the  exactness,  and  guarded  by  every  precaution
that  human  prudence  could  devise.  Wretched
must  that  legislature  be,  whose  acts  you  cannot
trace  to  the  first  unchangeable  principles  of  i^
tional  prerogative,  of  civil  liberty,  of  equal  jus-
ticer!    In  this  act  you  trace  them  all  distinctly.
