a nation has long existed and flourished under it. It is a better presumption even of the choice of a nation, far better than any sudden and temporary arrangement by actual election. Because a nation is not an idea only of local extent, and individual momentary aggregation, but it is an idea of continuity, which extends in time as well as in numbers and in space. And this is a choice not of one day, or one set of people, not a tumultuary and giddy choice; it is a deliberate election of ages and of generations; it is a constitution made by what is ten thousand times better than choice; it is made by the peculiar circumstances, occasions, tempers, dispositions, and moral, civil, and social habitudes of the people, which disclose themselves only in a long space of time. It is a vestment, which accommodates itself to the body. Nor is prescription of government formed upon blind unmeaning prejudices-for man is a most unwise and a most wise being. The individual is foolish. The multitude for the moment is foolish, when they act without deliberation; but the species is wise, and when time is given to it, as a species it almost always acts right.

The reason for the crown as it is, for the lords as they are, is my reason for the commons as they are, the electors as they are. Now if the crown, and the lords, and the judicatures are all prescriptive, so is the house of commons of the very same origin, and of no other. We and our electors have their powers and privileges both made and circumscribed by prescription as much to the full as the other parts; and as such we have always claimed them, and on no other title. The house of commons is a legislative body corporate by prescription, not made upon any given theory, but existing prescriptively-just like the rest. This prescription has made it essentially what it is, an aggregate collection of three parts, knights, citizens, burgesses. The question is, whether this has been always so since the house of commons his taken its present shape and circumstances, and has been an essential operative part of the constitution; which, I take it, it has been for at least five hundred years.

This I resolve to myself in the affirmative: and then another question arises, whether this house stands firm upon its antient foundations, and is not, by time and accidents, so declined from its perpendicular, as to want the hand of the wise and experienced architects of the day to set it upright again, and to prop and buttress it up for duration; whether it continues true to the principles upon which it has hitherto

stood; whether this be de facto the constitu tion of the house of commons as it has been since the time that the house of commons has, without dispute, become a necessary and an efficient part of the British constitution? To ask whether a thing which has always been the same stands to its usual principle, seems to me to be perfectly absurd; for how do you know the principles but from the construction? and if that remains the same, the principles remain the same. It is true, that to say your constitution is what it has been, is no sufficient defence for those who say it is a bad constitution. It is an answer to those who say that it is a degenerate constitution. To those who say it is a bad one, I answer, look to its effects. In all moral machinery the moral results are its tests.

On what grounds do we go, to restore our constitution to what it has been at some given period, or to reform and reconstruct it upon principles more conformable to a sound theory of government? A prescriptive government, such as ours, never was the work of any legislator, never was made upon any foregone theory. It seems to me a preposterous way of reasoning, and a perfect confusion of ideas, to take the theories which learned and speculative men have made from that government, and then supposing it made on those theories which were made from it, to accuse the government as not corresponding with them. I do not vilify theory and speculation-no, because that would be to vilify reason itself. Neque decipitur ratio, neque decipit unquam. No: whenever I speak against theory, I mean always a weak, erroneous, fallacious, unfounded or imperfect theory; and one of the ways of discovering, that it is a false theory, is by comparing with practice. This is the true touchstone of all theories, which regard man and the affairs of men-does it suit his nature in general-does it suit his nature as modified by his habits?

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 constitution whilst it lasts; of curing it of many of the disorders, which, attending every species of institution, 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 comwealth 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 constitution. ***But no, this was not the cause of the discontents. I went through most of the northern parts; the Yorkshire 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 ship was shifted with us, and that our constitution had the gunnel 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 constituents? 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 constitution, and in every constitution of the world. Moral inequality is as between places and between classes. 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 Wiltshire, for instance, their roads, canals, their prisons, their police, better than Yorkshire, Warwickshire or Staffordshire? Warwick has members-is Warwick or Stafford more opulent, happy or free, than Newcastle or than Birmingham? Is Wiltshire the pampered favourite, whilst Yorkshire, 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 aptitude 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 furnishing 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) will stand clearer of local interests, passions, 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 constitution 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 associations, 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 constitution 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 constitution is

like our island, which uses and restrains its subject sea-in vain the waves roar. In that constitution 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 constitutes, and is the only thing which does constitute, the proud and comfortable sentiment of freedom in the human breast. I know too, and I bless God 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 favour, 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 constitution 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 constituted, as not to secure the public liberty; not to have a proper connection with the public interests; so constituted, 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

The constitution 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 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 honourable 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 a loss,

not inconsistent-which scheme the other right honourable gentleman roprobates. 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 houourable friend, in supporting this motion, disgraces his friends and justifies his enemies in order to blacken the constitution 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 constitution of your country. The first may be cured in the individual by the motives of religion, virtue, honour, 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 constitution 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 tenour of measures; but we are grown out of humour with the English constitution itself; this is become the object of the animosity of Englishmen. This consitution 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 humour, and it is to the measures growing out of it, that I set myself (I hope not alone) in the most deter

mined 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 constitution 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 constitution 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 vigour. On the contrary, I will drive away such pretenders; I will nurse its venerable age, and with lenient arts extend a parent's breath.

I HAVE always understood, that a superintendence over the doctrines, as well as the proceedings of the courts of justice, was a principal object of the constitution 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 assert 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 honour 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 circumstance is better secured to the people than in any other country under heaven it can be.

*This speech was delivered on a motion made by Mr. Dowdeswell, for leave to bring in a bill to ascertain the power of juries in prosecutions for libels; against which the question of adjournment was carried on the 7th of March, 1771.

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 assert, 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 honourable 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 constitutional, and therefore should not be altered. 2. That it is neither proper nor constitutional, 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 asserting and securing a great object in the juridical constitution of this kingdom; which, from a long series of practices and opinions in essential point, deviated from the true principle. our judges, has in one point, and in one very It is the very antient 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 identity 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 acts 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 passed 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 constitution.

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 any thing in the peculiar nature of this crime that makes it necessary to exclude the jury from consider ing the intention in it more than in others. So far from it, that I take it to be much less so from the analogy 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 felonicè in the indictment?

The next point is to consider it as a question of constitutional policy; that is, whether the decision of the question of libet 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 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 unfavourable, indeed totally adverse to the constitution of this country.

Here we must have recourse to analogies; 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 3d Edward I. cap. 34. 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 constitution 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 VII. and in the third year of that reign the court of Star Chamber was established. The press and its enemy are nearly