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sentative 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 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 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 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 {j 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 honourable 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 honourable 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 new no longer WOL. V. {41 )

quarrelling about the character or about the conduct of men, or the tenor 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 constitution 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 pru

dence. Now all its excellencies are forgot, its faults are now forcibly dragged into day, exaggerated by every artifice of re

presentation; it is despised and rejected of men; and every

device and invention of ingenuity or idleness set up in opposi

tion 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 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 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 gentle

men. 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.


On a Motion made by the right hon. Wm. Dondeswell, for leave to bring in a Bill for explaining the powers of Juries in prosecutions for Libels. *

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. 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 guideus. 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 rosecuting 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

* 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.

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. 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 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 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 perjure 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, 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 pe. culiar 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 felonice 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 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. 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 Magmatum 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 eagles' wings, on which, as the poet says, “immortal slanders fly.” By the press they spread, they last.

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