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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 te 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 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 practerito. 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 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 antient 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 where the law having 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 circumstances and the eccasion, 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 dishonoured; 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 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 Inade 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. 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 clamour, 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 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.”
On Mr. Dondesnell's Bill for explaining the Pomers of Jo. ries 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 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. Mr. Dowdeswell did not bring in an enacting bill to give to juries, as the account expresses it, a pomer to try lan' 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 public, and to the great dishonour of the national iustice. J That it is the province of the jury, in informations and indictments for libels, to try nothing more than the fact of the com§. and of the publishing averments and innuendoes, is a octrine 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 P 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. Mr. Dowdeswell's bill was brought in for that purpose. It gives to the jury no new powers; but, after reciting the doubts and controversies, (which nobody denies actually to subsist) and after stating that, if juries are not reputed competent to try the whole matter, the benefit of trial by jury will be of none or imperfect effect; it enacts, not that the jury shall have the ponyer, but that they shall be held and reputed in lan 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 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 come that connection, 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 public conduct: but they can never consent to purchase any assistance from any persons by the forfeiture of their own reputation. They respect public 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 the public, and there to justify the constitutional nature and tendency, the propriety, the prudence, and the policy of their bill. They are equally ready to explain and to justify all their proceedings in the conduct of it; equally ready to defend their resolution to make it one object (if ever they should have the power) in a plan of public reformation. 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 (s 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 Saville, and supported by their friends, will stand fair with the public, even though it should have been opposed by that list of names, (respectable names I admit) which have been printed with so much parade and ostentation in your !". It is not true, that Mr. Burke spoke in praise of Lord Mansfield. If he had found any thing in Lord Mansfield praiseworthy, I fancy he is not disposed to make an apology to any body for doing i. Your correspondent’s reason for asserting it is visible enough; and it is altogether in the strain of other misrepresentations. That gentleman spoke decently of the judges, and he did no more; most of the gentlemen, who debated on both sides, held the same language; and nobody will think their zeal the less warm, or the less effectual, because it is not attended with scurrility and virulence.
* 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 thought proper to insert it here as being connected with the subject of the foregoing speech.