Imágenes de páginas
PDF
EPUB

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 pre-conceived 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 ven

ture 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.

SPEECH

ON A MOTION, MADE BY THE RIGHT HON. WM. DOWDESWELL, FOR LEAVE TO
BRING IN A BILL FOR EXPLAINING THE POWERS OF JURIES
IN PROSECUTIONS FOR LIBELS.*

:

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 our judges has in one point, and in one very essential point, deviated from the true principle.

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 publick interest. We have no common cause of a professional attachment, or professional emulations, to bias our minds; we have no foregone It is the very ancient privilege of the people of opinions, which from obstinacy and false point of England, that they shall be tried, except in the honour we think ourselves at all events obliged to known exceptions, not by judges appointed by support. So that with our own minds perfectly the Crown, but by their own fellow-subjects, the disengaged from the exercise, we may superintend peers of that county court, at which they owe their the execution, of the national justice; which from suit and service; and out of this principle the this circumstance is better secured to the people trial by juries has grown. This principle has not, than in any other country under heaven it can be. that I can find, been contested in any case by any As our situation puts us in a proper condition, our authority whatsoever; but there is one case, in power enables us to execute this trust. We may, which, without directly contesting the principle, when we see cause of complaint, administer a re- the whole substance, energy, and virtue of the medy; it is in our choice by an address to remove privilege is taken out of it; that is, in the case of an improper judge, by impeachment before the a trial by indictment or information for a libel. peers to pursue to destruction a corrupt judge, or The doctrine in that case, laid down by several by bill to assert, to explain, to enforce, or to re-judges, amounts to this, that the jury have no form 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

This speech was delivered on a motion, made by Mr. Dowdeswell, for leave to bring in a bill to ascertain the power of

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.

juries in prosecutions for libels; against which the question of adjournment was carried, on the 7th of March, 1771.

Thus having reduced the jury to the cognizance | see the statute of 3d Edward I. cap. 34. The law of of facts, not in themselves presumptively criminal, libels could not have arrived at a very early period but actions neutral and indifferent, the whole in this country. It is no wonder, that we find no matter, in which the subject has any concern or vestige of any constitution from authority, or of interest, is taken out of the hands of the jury; any deductions from legal science, in our old and if the jury take more upon themselves, what books and records upon that subject. The statute they so take is contrary to their duty; it is no of Scandalum Magnatum is the oldest, that I moral, but a merely natural, power; the same, know, and this goes but a little way in this sort of by which they may do any other improper act, learning. Libelling is not the crime of an illiterate the same, by which they may even prejudice them- people. When they were thought no mean clerks, selves with regard to any other part of the issue who could read and write; when he, who could before them. Such is the matter, as it now stands read and write, was presumptively a person in in possession of your highest criminal courts, holy orders, libels could not be general, or danhanded down to them from very respectable legal gerous; and scandals merely oral could spread ancestors. If this can once be established in this little, and must perish soon. It is writing, it is case, the application in principle to other cases printing, more emphatically, that imps calumny will be easy; and the practice will run upon a with those eagle wings, on which, as the poet says, descent, until the progress of an encroaching" immortal slanders fly." By the press they 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 de-ber was established. The press and its enemy merit, 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 considering 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 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 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:

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 cham

are nearly coeval. As no positive law against libels existed, they fell under the indefinite class of misdemeanours. For the trial of misdemeanours that court was instituted; 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 out-work, 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 Ju

nius, 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 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 important consideration, which can come before us, with minds heated with prejudice, and filled with passions, with vain popular opinions and humours; 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 versá, 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 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 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 extells 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 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 circumstances, 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.

[ocr errors]

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.

as facts should turn out upon that enquiry, aiming constantly at remedy as the end of all clamour, all debate, all writing, and all enquiry; 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 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.”

« AnteriorContinuar »