nius, as one piece, as one consistent plan of ope-
rations; 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 errour, 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 enquiry; not to examine into the most im-
portant consideration, which can come before us,
with minds heated with prejudice, and filled with
passions, with vain popular opinions and hu-
mours; and when we propose to examine into
the justice of others, to be unjust ourselves.

An enquiry is wished, as the most effectual way of putting an end to the clamours 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 constitutional 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 assume it, and they enquire too much, and too irreverently, because they think their representatives do not enquire at all.

will not bear an exact definition. It may seem to
take away every thing, which it does not positively
establish, and this might be inconvenient; or it
may seem, vice versa, to establish every thing,
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 cen-
sorial 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 assume 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 repetitions 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. The business of juries is the subject of not fewer than a dozen. To suppose, that juries are something innate in the constitution of Great Britain, that they have jumped, like Minerva, out of the head of Jove in complete armour, is a weak fancy supported neither by precedent nor by reason. Whatever is most ancient and venerable in our constitution, royal prerogative, privileges of parliament, rights of elections, autho

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-presump-rity of courts, juries, must have been modelled tions 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 constitutionally, 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 publick discussion of a publick 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. 2d. 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

according to the occasion. I spare your patience, and I pay a compliment to your understanding, in not attempting to prove, that any thing so elaborate and artificial as a jury was not the work of chance, but a matter of institution 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 his creature, from Magna Charta to the great alterations which were made in the 29th of George IId.

To talk of this matter in any other way is to turn a rational principle into an idle and vulgar superstition, like the antiquary, Dr. Woodward, who trembled to have his shield 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 dis- | extent. If the judges differ in their complexions, tress; application was made to some rich fellows much more will a jury. A timid jury will give in his neighbourhood to give him some assistance; way to an awful judge delivering oracularly the but they begged to be excused for fear of affront-law, and charging them on their oaths, and puting a person of his high birth; and so the poor ting it home to their consciences, to beware of gentleman was left to starve out of pure respect to judging, where the law had given them no comthe antiquity of his family. From this principle petence. We know, that they will do so, they has arisen an opinion, that I find current amongst have done so in an hundred instances; a respectgentlemen, that this distemper ought to be left to able member of your own house, no vulgar man, cure itself; that the judges having been well ex- tells you, that on the authority of a judge he found posed, and something terrified on account of these a man guilty, in whom at the same time he could clamours, will entirely change, if not very much find no guilt. But supposing them full of knowrelax from their rigour;—if the present race should ledge and full of manly confidence in themselves, not change, that the chances of succession may how will their knowledge, or their confidence, input other more constitutional judges in their form or inspirit others? They give no reason for place; lastly, if neither should happen, yet that their verdict, they can but condemn or acquit ; the spirit of an English jury will always be suffi- and no man can tell the motives, on which they cient for the vindication of its own rights, and will have acquitted or condemned. So that this hope not suffer itself to be overborne by the bench. I of the power of juries to assert their own jurisdicconfess, that I totally dissent from all these tion must be a principle blind, as being without opinions. These suppositions become the strongest reason, and as changeable as the complexion of reasons with me to evince the necessity of some men, and the temper of the times. 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 passions, that a popular clamour is sufficient to shake the resolution they build upon the solid basis of a legal principle, I would endeavour 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 quædam 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 institutions.

Now I come to the last substitute 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 mass of men infinitely large, must be of characters as various as the body they arise from is large in its

But after all, is it fit, that this dishonourable contention between the court and juries should subsist any longer? On what principle is it, that a jury refuses to be directed by the court as to its 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 errour, 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-God 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 constitution. 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 a

bill.

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 dishonoured; that their acts and judgments on this business are to be rescinded; they will undoubtedly vote against this bill, and for another sort.

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 præterito. I do this upon reasons of equity and constitutional policy. I do not want to censure the present judges. I think them to be excused for their errour. Ignorance is no excuse for a judge; it is changing the nature of his crime; it is not absolving. It must be such errour 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 constitution has been struck at; where they would damn the principle, censure the persons, and annul the acts-but I have read and heard much upon the conduct where the law has been by the accident of human of our courts in the business of libels. I was exfrailty depraved, or in a particular instance mis-tremely willing to enter into, and very free to act understood, where you neither mean to rescind as facts should turn out upon that enquiry, aimthe acts nor to censure the persons, in such cases ing constantly at remedy as the end of all clayou have taken the explanatory mode, and, with-mour, all debate, all writing, and all enquiry; for out 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 circumstances, and the occasion, and are of four kinds-1. Either the law is totally wanting, and then a new enact ing 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.

I am not of the opinion of those gentlemen, who are against disturbing the publick repose; I like a clamour 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 clamours aim at redress. But a clamour made merely for the purpose of rendering the people discontented with their situation, without an endeavour to give them a practical remedy, is indeed one of the worst acts of sedition.

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 publick will one day reap the benefit of their pious and judicious endeavours. They have now sown the seed; I hope they will live to see the flourishing 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 Coke 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.*

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

Mr. Dowdeswell did not bring in an enacting bill to give to juries, as the account expresses it, a power to try law and fact in matter of libel. Mr. Dowdeswell brought in a bill to put an end to those doubts and controversies upon that subject, which have unhappily distracted our courts to the great detriment of the publick, and to the great dishonour of the national justice.

That it is the province of the jury, in informations and endictments for libels, to try nothing more than the fact of the composing, and of the publishing averments and innuendos, is a doctrine held at present by all the judges of the king's bench, probably by most of the judges of the kingdom. The same doctrine has been held pretty uniformly since the revolution; and it prevails more or less with the jury according to the degree of respect, with which they are disposed to receive the opinions of the bench.

This doctrine, which, when it prevails, tends to annihilate the benefit of trial by jury, and when it is rejected by juries tends to weaken and disgrace the authority of the judge, is not a doctrine proper for an English judicature. For the sake both of judge and jury the controversy ought to be quieted, and the law ought to be settled in a manner clear, definitive, and constitutional, by the only authority competent to it, the authority of the legislature.

passed into an act of parliament. The implication is directly the contrary; and is as strongly conveyed as it is possible for those to do, who state a doubt and controversy, without charging with criminality those persons, who so doubted, and so controverted.

Such a style is frequent in acts of this nature; and is that only which is suited to the occasion. An insidious use has been made of the words enact and declare, as if they were formal and operative words of force to distinguish different species of laws producing different effects. Nothing is more groundless; and I am persuaded no lawyer will stand to such an assertion. The gentlemen who say, that a bill ought to have been brought in upon the principle, and in the style, of the petition of right, and declaration of right, ought to consider how far the circumstances are the same in the two cases; and how far they are prepared to go the whole lengths of the reason of those remarkable laws. Mr. Dowdeswell and his friends are of opinion, that the circumstances are not the same, and that therefore the bill ought not to be the same.

It has been always disagreeable to the persons, who compose that connexion, to engage wantonly in a paper war, especially with gentlemen for whom they have an esteem, and who seem to agree with them in the great grounds of their publick conduct: but they can never consent to purchase any assistance from any persons by the forfeiture of their own reputation. They respect publick opinion; and therefore whenever they shall be called upon, they are ready to meet their adversaries, as soon as they please, before the tribunal of Mr. Dowdeswell's bill was brought in for that the publick, and there to justify the constitutional purpose. It gives to the jury no new powers; nature and tendency, the propriety, the prudence, but, after reciting the doubts and controversies, and the policy of their bill. They are equally (which nobody denies actually to subsist,) and ready to explain and to justify all their proceedafter stating, that, if juries are not reputed compe-ings in the conduct of it; equally ready to defend tent to try the whole matter, the benefit of trial by their resolution to make it one object (if ever they jury will be of none, or imperfect, effect, it enacts, should have the power) in a plan of publick renot that the jury shall have the power, but that formation. they shall be held and reputed in law and right competent, to try the whole matter laid in the information. The bill is directing to the judges concerning the opinion in law, which they are known to hold upon this subject; and does not in the least imply, that the jury were to derive a new right and power from that bill, if it should have

The manuscript, from which this letter is taken, is in Mr. Burke's own hand-writing, but it does not appear to whom it was addressed; nor is there any date affixed to it. It has been

Your correspondent ought to have been satisfied with the assistance, which his friends have lent to administration in defeating that bill. He ought not to make a feeble endeavour (I dare say, much to the displeasure of those friends) to disgrace the gentleman who brought it in. A measure, proposed by Mr. Dowdeswell seconded by Sir George

thought proper to insert it here as being connected with the subject of the foregoing speech.

LIBEL BILL.

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SPEECH

ON THE SECOND READING OF A BILL FOR THE REPEAL OF THE MARRIAGE ACT.*