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their own choice. But as to the second, arising from an unfitness not fixed by nature, but superinduced by some positive acts, or arising from honourable motives, such as an occasional personal disability, of all things it ought to be defined by the fixed rule of law-what Lord Coke calls, the Golden Metwand of the Law, and not by the crooked cord of discretion. Whatever is general is better born. We take our common lot with men of the same description. But to be selected and marked out by a particular brand of unworthiness among our fellow-citizens, is a lot of all others the hardest to be borne: and consequently is of all others that act, which ought only to be trusted to the legislature, as not only legislative in its nature, but of all parts of legislature the most odious. The question is over, if this is shown not to be a legislative act. But what is very usual and natural, is to corrupt judicature into legislature. On this point it is proper to inquire whether a court of judicature, which decides without appeal, has it as a necessary incident of such judicature, that whatever it decides de jure is law. Nobody will, I hope, assert this, because the direct consequence would be the entire extinction of the difference between true and false judgments. For, if the judgment makes the law, and not the law directs the judgment, it is impossible there could be such a thing as an illegal judgment given.
But, instead of standing upon this ground, they introduce another question, wholly foreign to it, whether it ought not to be submitted to as if it were law. And then the question is, By the constitution of this country, what degree of submission is due to the authoritative acts of a limited power? This question of submission, determine it how you please, has nothing to do in this discussion and in this house. Here it is not, how long the people are bound to tolerate the illegality of our judgments, but whether we have a right to substitute our occasional opinion in the place of law, so as to deprive the citizen of his franchise.
SPEECH ON 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
Note.-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. The principle was carried out in Fox's Act, 1794.
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 to 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 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 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 informatiou for 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
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.
For which reason it is high time to take this mater into the consideration of parliament, and for that purpose it will be necessary to examine, first, whether there is anything 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 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 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 bistory. 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: see the statute of 3rd 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 magnatum 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 be, 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 eagle wings, on which, as the poet says, “ immortal slanders fly.” By the press they 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 Chamber was established. The press and its enemy are nearly coeval. As no positive law against libels existed, they fell under the indefinite class of misdemeanors. For the trial of misdemeanors 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 outwork, 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 Junius, 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 error, 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 inquiry ; 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 inquiry is wished, as the most effectaal 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 inquire too much, and too irreverently, because they think their representatives do not inquire at all.