The Works of the Right Honourable Edmund Burke Volume VII Part 4

The more frequently this affair is discussed, the stronger the case appears to the sense and the feelings of mankind. I have no more doubt than I entertain of my existence, that this very thing, which is stated as an horrible thing, is the means of the preservation of our Const.i.tution whilst it lasts,--of curing it of many of the disorders which, attending every species of inst.i.tution, would attend the principle of an exact local representation, or a representation on the principle of numbers. If you reject personal representation, you are pushed upon expedience; and, then what they wish us to do is, to prefer their speculations on that subject to the happy experience of this country, of a growing liberty and a growing prosperity for five hundred years. Whatever respect I have for their talents, this, for one, I will not do. Then what is the standard of expedience? Expedience is that which is good for the community, and good for every individual in it.

Now this expedience is the _desideratum_, to be sought either without the experience of means or with that experience. If without, as in case of the fabrication of a new commonwealth, I will hear the learned arguing what promises to be expedient; but if we are to judge of a commonwealth actually existing, the first thing I inquire is, What has been _found_ expedient or inexpedient? And I will not take their _promise_ rather than the _performance_ of the Const.i.tution.

.... But no, this was not the cause of the discontents. I went through most of the northern parts,--the Yorks.h.i.+re election was then raging; the year before, through most of the western counties,--Bath, Bristol, Gloucester: not one word, either in the towns or country, on the subject of representation; much on the receipt tax, something on Mr. Fox's ambition; much greater apprehension of danger from thence than from want of representation. One would think that the ballast of the s.h.i.+p was s.h.i.+fted with us, and that our Const.i.tution had the gunwale under water.

But can you fairly and distinctly point out what one evil or grievance has happened which you can refer to the representative not following the opinion of his const.i.tuents? What one symptom do we find of this inequality? But it is not an arithmetical inequality with which we ought to trouble ourselves. If there be a moral, a political equality, this is the _desideratum_ in our Const.i.tution, and in every const.i.tution in the world. Moral inequality is as between places and between cla.s.ses. Now, I ask, what advantage do you find that the places which abound in representation possess over others in which it is more scanty, in security for freedom, in security for justice, or in any one of those means of procuring temporal prosperity and eternal happiness the ends for which society was formed? Are the local interests of Cornwall and Wilts.h.i.+re, for instance, their roads, ca.n.a.ls, their prisons, their police, better than Yorks.h.i.+re, Warwicks.h.i.+re, or Staffords.h.i.+re? Warwick has members: is Warwick or Stafford more opulent, happy, or free than Newcastle, or than Birmingham? Is Wilts.h.i.+re the pampered favorite, whilst Yorks.h.i.+re, like the child of the bondwoman, is turned out to the desert? This is like the unhappy persons who live, if they can be said to live, in the statical chair,--who are ever feeling their pulse, and who do not judge of health by the apt.i.tude of the body to perform its functions, but by their ideas of what ought to be the true balance between the several secretions. Is a committee of Cornwall, &c, thronged, and the others deserted? No. You have an equal representation, because you have men equally interested in the prosperity of the whole, who are involved in the general interest and the general sympathy; and, perhaps, these places furnis.h.i.+ng a superfluity of public agents and administrators, (whether in strictness they are representatives or not I do not mean to inquire, but they are agents and administrators,) they will stand clearer of local interests, pa.s.sions, prejudices, and cabals than the others, and therefore preserve the balance of the parts, and with a more general view and a more steady hand than the rest....

In every political proposal we must not leave out of the question the political views and object of the proposer; and these we discover, not by what he says, but by the principles he lays down. "I mean," says he, "a moderate and temperate reform: that is, I mean to do as little good as possible." If the Const.i.tution be what you represent it, and there be no danger in the change, you do wrong not to make the reform commensurate to the abuse. Fine reformer, indeed! generous donor! What is the cause of this parsimony of the liberty which you dole out to the people? Why all this limitation in giving blessings and benefits to mankind? You admit that there is an extreme in liberty, which may be infinitely noxious to those who are to receive it, and which in the end will leave them no liberty at all. I think so, too. They know it, and they feel it. The question is, then, What is the standard of that extreme? What that gentleman, and the a.s.sociations, or some parts of their phalanxes, think proper? Then our liberties are in their pleasure; it depends on their arbitrary will how far I shall be free. I will have none of that freedom. If, therefore, the standard of moderation be sought for, I will seek for it. Where? Not in their fancies, nor in my own: I will seek for it where I know it is to be found,--in the Const.i.tution I actually enjoy. Here it says to an encroaching prerogative,--"Your sceptre has its length; you cannot add an hair to your head, or a gem to your crown, but what an eternal law has given to it." Here it says to an overweening peerage,--"Your pride finds banks that it cannot overflow": here to a tumultuous and giddy people,--"There is a bound to the raging of the sea." Our Const.i.tution is like our island, which uses and restrains its subject sea; in vain the waves roar. In that Const.i.tution, I know, and exultingly I feel, both that I am free, and that I am not free dangerously to myself or to others. I know that no power on earth, acting as I ought to do, can touch my life, my liberty, or my property. I have that inward and dignified consciousness of my own security and independence, which const.i.tutes, and is the only thing which, does const.i.tute, the proud and comfortable sentiment of freedom in the human breast. I know, too, and I bless G.o.d for, my safe mediocrity: I know, that, if I possessed all the talents of the gentlemen on the side of the House I sit, and on the other, I cannot, by royal favor, or by popular delusion, or by oligarchical cabal, elevate myself above a certain very limited point, so as to endanger my own fall, or the ruin of my country. I know there is an order that keeps things fast in their place: it is made to us, and we are made to it. Why not ask another wife, other children, another body, another mind?

The great object of most of these reformers is, to prepare the destruction of the Const.i.tution, by disgracing and discrediting the House of Commons. For they think, (prudently, in my opinion,) that, if they can persuade the nation that the House of Commons is so const.i.tuted as not to secure the public liberty, not to have a proper connection with the public interests, so const.i.tuted as not either actually or virtually to be the representative of the people, it will be easy to prove that a government composed of a monarchy, an oligarchy chosen by the crown, and such a House of Commons, whatever good can be in such a system, can by no means be a system of free government.

The Const.i.tution of England is never to have a quietus; it is to be continually vilified, attacked, reproached, resisted; instead of being the hope and sure anchor in all storms, instead of being the means of redress to all grievances, itself is the grand grievance of the nation, our shame instead of our glory. If the only specific plan proposed, individual personal representation, is directly rejected by the person who is looked on as the great support of this business, then the only way of considering it is a question of convenience. An honorable gentleman prefers the individual to the present. He therefore himself sees no middle term whatsoever, and therefore prefers, of what he sees, the individual: this is the only thing distinct and sensible that has been advocated. He has, then, a scheme, which is the individual representation,--he is not at a loss, not inconsistent,--which scheme the other right honorable gentleman reprobates. Now what does this go to, but to lead directly to anarchy? For to discredit the only government which he either possesses or can project, what is this but to destroy all government? and this is anarchy. My right honorable friend, in supporting this motion, disgraces his friends and justifies his enemies in order to blacken the Const.i.tution of his country, even of that House of Commons which supported him. There is a difference between a moral or political exposure of a public evil relative to the administration of government, whether in men or systems, and a declaration of defects, real or supposed, in the fundamental const.i.tution of your country. The first may be cured in the individual by the motives of religion, virtue, honor, fear, shame, or interest. Men may be made to abandon also false systems, by exposing their absurdity or mischievous tendency to their own better thoughts, or to the contempt or indignation of the public; and after all, if they should exist, and exist uncorrected, they only disgrace individuals as fugitive opinions.

But it is quite otherwise with the frame and const.i.tution of the state: if that is disgraced, patriotism is destroyed in its very source. No man has ever willingly obeyed, much less was desirous of defending with his blood, a mischievous and absurd scheme of government. Our first, our dearest, most comprehensive relation, our country, is gone.

It suggests melancholy reflections, in consequence of the strange course we have long held, that we are now no longer quarrelling about the character, or about the conduct of men, or the tenor of measures, but we are grown out of humor with the English Const.i.tution itself: this is become the object of the animosity of Englishmen. This Const.i.tution in former days used to be the admiration and the envy of the world: it was the pattern for politicians, the theme of the eloquent, the meditation of the philosopher, in every part of the world. As to Englishmen, it was their pride, their consolation. By it they lived, for it they were ready to die. Its defects, if it had any, were partly covered by partiality, and partly borne by prudence. Now all its excellencies are forgot, its faults are now forcibly dragged into day, exaggerated by every artifice of representation. It is despised and rejected of men, and every device and invention of ingenuity or idleness set up in opposition or in preference to it. It is to this humor, and it is to the measures growing out of it, that I set myself (I hope not alone) in the most determined opposition. Never before did we at any time in this country meet upon the theory of our frame of government, to sit in judgment on the Const.i.tution of our country, to call it as a delinquent before us, and to accuse it of every defect and every vice,--to see whether it, an object of our veneration, even our adoration, did or did not accord with a preconceived scheme in the minds of certain gentlemen. Cast your eyes on the journals of Parliament. It is for fear of losing the inestimable treasure we have that I do not venture to game it out of my hands for the vain hope of improving it. I look with filial reverence on the Const.i.tution of my country, and never will cut it in pieces, and put it into the kettle of any magician, in order to boil it, with the puddle of their compounds, into youth and vigor. On the contrary, I will drive away such pretenders; I will nurse its venerable age, and with lenient arts extend a parent's breath.

SPEECH

ON

A MOTION, MADE BY THE RIGHT HON. WILLIAM DOWDESWELL,

MARCH 7, 1771,

FOR LEAVE TO BRING IN

A BILL FOR EXPLAINING THE POWERS OF JURIES IN PROSECUTIONS FOR LIBELS.

TOGETHER WITH

A LETTER IN VINDICATION OF THAT MEASURE,

AND

A COPY OF THE PROPOSED BILL.

I have always understood that a superintendence over the doctrines as well as the proceedings of the courts of justice was a princ.i.p.al object of the const.i.tution of this House,--that you were to watch at once over the lawyer and the law,--that there should be an orthodox faith, as well as proper works: and I have always looked with a degree of reverence and admiration on this mode of superintendence. For, being totally disengaged from the detail of juridical practice, we come something perhaps the better qualified, and certainly much the better disposed, to a.s.sert the genuine principle of the laws, in which we can, as a body, have no other than an enlarged and a public interest. We have no common cause of a professional attachment or professional emulations to bias our minds; we have no foregone opinions which from obstinacy and false point of honor we think ourselves at all events obliged to support. So that, with our own minds perfectly disengaged from the exercise, we may superintend the execution of the national justice, which from this circ.u.mstance is better secured to the people than in any other country under heaven it can be. As our situation puts us in a proper condition, our power enables us to execute this trust. We may, when we see cause of complaint, administer a remedy: it is in our choice by an address to remove an improper judge, by impeachment before the peers to pursue to destruction a corrupt judge, or by bill to a.s.sert, to explain, to enforce, or to reform the law, just as the occasion and necessity of the case shall guide us. We stand in a situation very honorable to ourselves and very useful to our country, if we do not abuse or abandon the trust that is placed in us.

The question now before you is upon the power of juries in prosecuting for libels. There are four opinions:--1. That the doctrine as held by the courts is proper and const.i.tutional, and therefore should not be altered; 2. That it is neither proper nor const.i.tutional, but that it will be rendered worse by your interference; 3. That it is wrong, but that the only remedy is a bill of retrospect; 4. The opinion of those who bring in the bill, that the thing is wrong, but that it is enough to direct the judgment of the court in future.

The bill brought in is for the purpose of a.s.serting and securing a great object in the juridical const.i.tution of this kingdom, which, from a long series of practices and opinions in our judges, has _in one point_, and in one very essential point, deviated from the true principle.

It is the very ancient privilege of the people of England, that they shall be tried, except in the known exceptions, not by judges appointed by the crown, but by their own fellow-subjects, the peers of that county court at which they owe their suit and service; and out of this principle the trial by juries has grown. This principle has not, that I can find, been contested in any case by any authority whatsoever; but there is one case in which, without directly contesting the principle, the whole substance, energy, and virtue of the privilege is taken out of it,--that is, in the case of a trial by indictment or information for a libel. The doctrine in that case, laid down by several judges, amounts to this: that the jury have no competence, where a libel is alleged, except to find the gross corporeal facts of the writing and the publication, together with the ident.i.ty of the things and persons to which it refers; but that the intent and the tendency of the work, in which intent and tendency the whole criminality consists, is the sole and exclusive province of the judge. Thus having reduced the jury to the cognizance of facts not in themselves presumptively criminal, but actions neutral and indifferent, the whole matter in which the subject has any concern or interest is taken out of the hands of the jury: and if the jury take more upon themselves, what they so take is contrary to their duty; it is no _moral_, but a merely _natural_ power,--the same by which they may do any other improper act, the same by which they may even prejudice themselves with regard to any other part of the issue before them. Such is the matter, as it now stands in possession of your highest criminal courts, handed down to them from very respectable legal ancestors. If this can once be established in this case, the application in principle to other cases will be easy, and the practice will run upon a descent, until the progress of an encroaching jurisdiction (for it is in its nature to encroach, when once it has pa.s.sed its limits) coming to confine the juries, case after case, to the corporeal fact, and to that alone, and excluding the intention of mind, the only source of merit and demerit, of reward or punishment, juries become a dead letter in the Const.i.tution.

For which reason it is high time to take this matter into the consideration of Parliament: and for that purpose it will be necessary to examine, first, whether there is anything in the peculiar nature of this crime that makes it necessary to exclude the jury from considering the intention in it, more than in others. So far from it, that I take it to be much less so from the a.n.a.logy of other criminal cases, where no such restraint is ordinarily put upon them. The act of homicide is _prima facie_ criminal; the intention is afterwards to appear, for the jury to acquit or condemn. In burglary do they insist that the jury have nothing to do but to find the taking of goods, and that, if they do, they must necessarily find the party guilty, and leave the rest to the judge, and that they have nothing to do with the word _felonice_ in the indictment?

The next point is, to consider it as a question of const.i.tutional policy: that is, whether the decision of the question of libel ought to be left to the judges as a presumption of law, rather than to the jury as matter of popular judgment,--as the malice in the case of murder, the felony in the case of stealing. If the intent and tendency are not matters within the province of popular judgment, but legal and technical conclusions formed upon general principles of law, let us see what they are. Certainly they are most unfavorable, indeed totally adverse, to the Const.i.tution of this country.

Here we must have recourse to a.n.a.logies; for we cannot argue on ruled cases one way or the other. See the history. The old books, deficient in general in crown cases, furnish us with little on this head. As to the crime, in the very early Saxon law I see an offence of this species, called folk-leasing, made a capital offence, but no very precise definition of the crime, and no trial at all. See the statute of 3rd Edward I. cap. 84. The law of libels could not have arrived at a very early period in this country. It is no wonder that we find no vestige of any const.i.tution from authority, or of any deductions from legal science, in our old books and records, upon that subject. The statute of _Scandalum Magnatum_ is the oldest that I know, and this goes but a little way in this sort of learning. Libelling is not the crime of an illiterate people. When they were thought no mean clerks who could read and write, when he who could read and write was presumptively a person in holy orders, libels could not be general or dangerous; and scandals merely _oral_ could _spread_ little and must _perish_ soon. It is writing, it is printing more emphatically, that imps calumny with those eagle-wings on which, as the poet says, "immortal slanders fly." By the press they spread, they last, they leave the sting in the wound.

Printing was not known in England much earlier than the reign of Henry the Seventh, and in the third year of that reign the court of Star-Chamber was established. The press and its enemy are nearly coeval.

As no positive law against libels existed, they fell under the indefinite cla.s.s of misdemeanors. For the trial of misdemeanors that court was inst.i.tuted. Their tendency to produce riots and disorders was a main part of the charge, and was laid in order to give the court jurisdiction chiefly against libels. The offence was new. Learning of their own upon the subject they had none; and they were obliged to resort to the only emporium where it was to be had, the Roman law. After the Star-Chamber was abolished in the 10th of Charles I., its authority indeed ceased, but its maxims subsisted and survived it. The spirit of the Star-Chamber has transmigrated and lived again; and Westminster Hall was obliged to borrow from the Star-Chamber, for the same reasons as the Star-Chamber had borrowed from the Roman Forum, because they had no law, statute, or tradition of their own. Thus the Roman law took possession of our courts,--I mean its doctrine, not its sanctions: the severity of capital punishment was omitted, all the rest remained. The grounds of these laws are just and equitable. Undoubtedly the good fame of every man ought to be under the protection of the laws, as well as his life and liberty and property. Good fame is an outwork that defends them all and renders them all valuable. The law forbids you to revenge; when it ties up the hands of some, it ought to restrain the tongues of others.

The good fame of government is the same; it ought not to be traduced.

This is necessary in all government; and if opinion be support, what takes away this destroys that support: but the liberty of the press is necessary to this government.

The wisdom, however, of government is of more importance than the laws.

I should study the temper of the people, before I ventured on actions of this kind. I would consider the whole of the prosecution of a libel of such importance as Junius, as one piece, as one consistent plan of operations: and I would contrive it so, that, if I were defeated, I should not be disgraced,--that even my victory should not be more ignominious than my defeat; I would so manage, that the lowest in the predicament of guilt should not be the only one in punishment. I would not inform against the mere vender of a collection of pamphlets. I would not put him to trial first, if I could possibly avoid it. I would rather stand the consequences of my first error than carry it to a judgment that must disgrace my prosecution or the court. We ought to examine these things in a manner which becomes ourselves, and becomes the object of the inquiry,--not to examine into the most important consideration which can come before us with minds heated with prejudice and filled with pa.s.sions, with vain popular opinions and humors, and, when we propose to examine into the justice of others, to be unjust ourselves.

An inquiry is wished, as the most effectual way of putting an end to the clamors and libels which are the disorder and disgrace of the times. For people remain quiet, they sleep secure, when they imagine that the vigilant eye of a censorial magistrate watches over all the proceedings of judicature, and that the sacred fire of an eternal const.i.tutional jealousy, which, is the guardian of liberty, law, and justice, is alive night and day, and burning in this House. But when the magistrate gives up his office and his duty, the people a.s.sume it, and they inquire too much and too irreverently, because they think their representatives do not inquire at all.

We have in a libel, 1st, the writing; 2nd, the communication, called by the lawyers the publication; 3rd, the application to persons and facts; 4th, the intent and tendency; 5th, the matter,--diminution of fame. The law presumptions on all these are in the communication. No intent can make a defamatory publication good, nothing can make it have a good tendency; truth is not pleadable. Taken _juridically_, the foundation of these law presumptions is not unjust; taken _const.i.tutionally_, they are ruinous, and tend to the total suppression of all publication. If juries are confined to the fact, no writing which censures, however justly or however temperately, the conduct of administration, can be unpunished. Therefore, if the intent and tendency be left to the judge, as legal conclusions growing from the fact, you may depend upon it you can have no public discussion of a public measure; which is a point which even those who are most offended with the licentiousness of the press (and it is very exorbitant, very provoking) will hardly contend for.

So far as to the first opinion,--that the doctrine is right, and needs no alteration. 2nd. The next is, that it is wrong, but that we are not in a condition to help it. I admit it is true that there are cases of a nature so delicate and complicated that an act of Parliament on the subject may become a matter of great difficulty. It sometimes cannot define with exactness, because the subject-matter will not bear an exact definition. It may seem to _take away_ everything which it does not positively _establish_, and this might be inconvenient; or it may seem, _vice versa_, to _establish_ everything which it does not _expressly take away_. It may be more advisable to leave such matters to the enlightened discretion of a judge, awed by a censorial House of Commons.

But then it rests upon those who object to a legislative interposition to prove these inconveniences in the particular case before them. For it would be a most dangerous, as it is a most idle and most groundless conceit, to a.s.sume as a general principle, that the rights and liberties of the subject are impaired by the care and attention of the legislature to secure them. If so, very ill would the purchase of Magna Charta have merited the deluge of blood which was shed in order to have the body of English privileges defined by a positive written law. This charter, the inestimable monument of English freedom, so long the boast and glory of this nation, would have been at once an instrument of our servitude and a monument of our folly, if this principle were true. The thirty-four confirmations would have been only so many repet.i.tions of their absurdity, so many new links in the chain, and so many invalidations of their right.

You cannot open your statute-book without seeing positive provisions relative to every right of the subject. This business of juries is the subject of not fewer than a dozen. To suppose that juries are something innate in the Const.i.tution of Great Britain, that they have jumped, like Minerva, out of the head of Jove in complete armor, is a weak fancy, supported neither by precedent nor by reason. Whatever is most ancient and venerable in our Const.i.tution, royal prerogative, privileges of Parliament, rights of elections, authority of courts, juries, must have been modelled according to the occasion. I spare your patience, and I pay a compliment to your understanding, in not attempting to prove that anything so elaborate and artificial as a jury was not the work of _chance_, but a matter of inst.i.tution, brought to its present state by the joint efforts of legislative authority and juridical prudence. It need not be ashamed of being (what in many parts of it, at least, it is) the offspring of an act of Parliament, unless it is a shame for our laws to be the results of our legislature. Juries, which sensitively shrink from the rude touch of Parliamentary remedy, have been the subject of not fewer than, I think, forty-three acts of Parliament, in which they have been changed with all the authority of a creator over its creature, from Magna Charta to the great alterations which were made in the 29th of George II.

To talk of this matter in any other way is to turn a rational principle into an idle and vulgar superst.i.tion,--like the antiquary, Dr. Woodward, who trembled to have his s.h.i.+eld scoured, for fear it should be discovered to be no better than an old pot-lid. This species of tenderness to a jury puts me in mind of a gentleman of good condition, who had been reduced to great poverty and distress: application was made to some rich fellows in his neighborhood to give him some a.s.sistance; but they begged to be excused, for fear of affronting a person of his high birth; and so the poor gentleman was left to starve, out of pure respect to the antiquity of his family. From this principle has arisen an opinion, that I find current amongst gentlemen, that this distemper ought to be left to cure itself:--that the judges, having been well exposed, and something terrified on account of these clamors, will entirely change, if not very much relax from their rigor;--if the present race should not change, that the chances of succession may put other more const.i.tutional judges in their place;--lastly, if neither should happen, yet that the spirit of an English jury will always be sufficient for the vindication of its own rights, and will not suffer itself to be overborne by the bench. I confess that I totally dissent from all these opinions. These suppositions become the strongest reasons with me to evince the necessity of some clear and positive settlement of this question of contested jurisdiction. If judges are so full of levity, so full of timidity, if they are influenced by such mean and unworthy pa.s.sions that a popular clamor is sufficient to shake the resolution they build upon the solid basis of a legal principle, I would endeavor to fix that mercury by a positive law. If to please an administration the judges can go one way to-day, and to please the crowd they can go another to-morrow, if they will oscillate backward and forward between power and popularity, it is high time to fix the law in such a manner as to resemble, as it ought, the great Author of all law, in whom there is no variableness nor shadow of turning.

As to their succession I have just the same opinion. I would not leave it to the chances of promotion, or to the characters of lawyers, what the law of the land, what the rights of juries, or what the liberty of the press should be. My law should not depend upon the fluctuation of the closet or the complexion of men. Whether a black-haired man or a fair-haired man presided in the Court of King's Bench, I would have the law the same; the same, whether he was born _in domo regnatrice_ and sucked from his infancy the milk of courts, or was nurtured in the rugged discipline of a popular opposition. This law of court cabal and of party, this _mens quaedam nullo perturbata affectu_, this law of complexion, ought not to be endured for a moment in a country whose being depends upon the certainty, clearness, and stability of inst.i.tutions.

Now I come to the last subst.i.tute for the proposed bill,--the spirit of juries operating their own jurisdiction. This I confess I think the worst of all, for the same reasons on which I objected to the others,--and for other weighty reasons besides, which are separate and distinct. First, because juries, being taken at random out of a ma.s.s of men infinitely large, must be of characters as various as the body they arise from is large in its extent. If the judges differ in their complexions, much more will a jury. A timid jury will give way to an awful judge delivering oracularly the law, and charging them on their oaths, and putting it home to their consciences to beware of judging, where the law had given them no competence. We know that they will do so, they have done so in an hundred instances. A respectable member of your own House, no vulgar man, tells you, that, on the authority of a judge, he found a man guilty in whom at the same time he could find no guilt. But supposing them full of knowledge and full of manly confidence in themselves, how will their knowledge or their confidence inform or inspirit others? They give no reason for their verdict, they can but condemn or acquit; and no man can tell the motives on which they have acquitted or condemned. So that this hope of the power of juries to a.s.sert their own jurisdiction must be a principle blind, as being without reason, and as changeable as the complexion of men and the temper of the times.

But, after all, is it fit that this dishonorable contention between the court and juries should subsist any longer? On what principle is it that a jury [juror?] refuses to be directed by the court as to his _competence_? Whether a libel or no libel be a question of law or of fact may be doubtful; but a question of jurisdiction and competence is certainly a question of law: on this the court ought undoubtedly to judge, and to judge solely and exclusively. If they judge wrong from excusable error, you ought to correct it, as to-day it is proposed, by an explanatory bill,--or if by corruption, by bill of _penalties_ declaratory, and by punishment. What does a juror say to a judge, when he refuses his opinion upon a question of judicature? "You are so corrupt, that I should consider myself a partaker of your crime, were I to be guided by your opinion"; or, "You are so grossly ignorant, that I, fresh from my hounds, from my plough, my counter, or my loom, am fit to direct you in your own profession." This is an unfitting, it is a dangerous state of things. The spirit of any sort of men is not a fit _rule_ for deciding on the bounds of their jurisdiction: first, because it is different in different men, and even different in the same at different times, and can never become the proper directing line of law; next, because it is not reason, but feeling, and, when once it is irritated, it is not apt to confine itself within its proper limits. If it becomes not difference in opinion upon law, but a trial of spirit between parties, our courts of law are no longer the temple of justice, but the amphitheatre for gladiators. No,--G.o.d forbid! Juries ought to take their law from the bench only; but it is _our_ business that they should hear nothing from the bench but what is agreeable to the principles of the Const.i.tution. The jury are to hear the judge: the judge is to hear the law, where it speaks plain; where it does not, he is to hear the legislature. As I do not think these opinions of the judges to be agreeable to those principles, I wish to take the only method in which they can or ought to be corrected,--by bill.

Next, my opinion is, that it ought to be rather by a bill for removing controversies than by a bill in the state of manifest and express declaration and in words _de praeterito_. I do this upon reasons of equity and const.i.tutional policy. I do not want to censure the present judges. I think them to be excused for their error. Ignorance is no excuse for a judge; it is changing the nature of his crime; it is not absolving. It must be such error as a wise and conscientious judge may possibly fall into, and must arise from one or both these causes:--1. A plausible principle of law; 2. The precedents of respectable authorities, and in good times. In the first, the principle of law, that the judge is to decide on law, the jury to decide on fact, is an ancient and venerable principle and maxim of the law; and if supported in this application by precedents of good times and of good men, the judge, if wrong, ought to be corrected,--he ought not to be reproved or to be disgraced, or the authority or respect to your tribunals to be impaired.

In cases in which declaratory bills have been made, where by violence and corruption some fundamental part of the Const.i.tution has been struck at, where they would d.a.m.n the principle, censure the persons, and annul the acts,--but where the law has been by the accident of human frailty depraved or in a particular instance misunderstood, where you neither mean to rescind the acts nor to censure the persons, in such cases you have taken the explanatory mode, and, without condemning what is done, you direct the future judgment of the court.

All bills for the reformation of the law must be according to the subject-matter, the circ.u.mstances, and the occasion, and are of four kinds:--1. Either the law is totally wanting, and then a new enacting statute must be made to supply that want; or, 2. it is _defective_, then a new law must be made to enforce it; 3. or it is opposed by power or fraud, and then an act must be made to declare it; 4. or it is rendered doubtful and controverted, and then a law must be made to explain it.

These must be applied according to the exigence of the case: one is just as good as another of them. Miserable indeed would be the resources, poor and unfurnished the stores and magazines of legislation, if we were bound up to a little narrow form, and not able to frame our acts of Parliament according to every disposition of our own minds and to every possible emergency of the commonwealth,--to make them declaratory, enforcing, explanatory, repealing, just in what mode or in what degree we please.

Those who think that the judges living and dead are to be condemned, that your tribunals of justice are to be dishonored, that their acts and judgments on this business are to be rescinded,--they will undoubtedly vote against this bill, and for another sort.

I am not of the opinion of those gentlemen who are against disturbing the public repose: I like a clamor, whenever there is an abuse. The fire-bell at midnight disturbs your sleep, but it keeps you from being burned in your bed. The hue-and-cry alarms the county, but it preserves all the property of the province. All these clamors aim at _redress_.

But a clamor made merely for the purpose of rendering the people discontented with their situation, without an endeavor to give them a practical remedy, is indeed one of the worst acts of sedition.

I have read and heard much upon the conduct of our courts in the business of libels. I was extremely willing to enter into, and very free to act as facts should turn out on that inquiry, aiming constantly at remedy as the end of all clamor, all debate, all writing, and all inquiry; for which reason I did embrace, and do now with joy, this method of giving quiet to the courts, jurisdiction to juries, liberty to the press, and satisfaction to the people. I thank my friends for what they have done; I hope the public will one day reap the benefit of their pious and judicious endeavors. They have now sown the seed; I hope they will live to see the flouris.h.i.+ng harvest. Their bill is sown in weakness; it will, I trust, be reaped in power. And then, however, we shall have reason to apply to them what my Lord c.o.ke says was an aphorism continually in the mouth of a great sage of the law,--"Blessed be not the complaining tongue, but _blessed be the amending hand_."

LETTER

ON

MR. DOWDESWELL'S BILL FOR EXPLAINING THE POWERS OF JURIES IN PROSECUTIONS FOR LIBELS.[2]

An improper and injurious account of the bill brought into the House of Commons by Mr. Dowdeswell has lately appeared in one of the public papers. I am not at all surprised at it, as I am not a stranger to the views and politics of those who have caused it to be inserted.