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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 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 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. Dowdeswell, for leave to bring in a Bill for explaining the Powers of Juries in Prosecutions for Libels*.
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
*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.
publick 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 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 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 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.