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of this part of the river; and having, in consequence, subjected themselves to public prosecutions, now actually depending, come to parliament to sanctify this injustice, and protect them against the consequences of this violence; and not content with impunity, are to be rewarded with a gift of the absolute property of what they have thus possessed themselves, which, in their hands, and when applied to the uses they have destined it, will be of immense value; and this without even the pretence of a title in themselves, or any better foundation than the consent which his Majesty, through the ill advice of his ministers, has been induced to give, on a supposition of the title to the soil still remaining in the crown, although that title has been disputed, and the property claimed, under ancient grants from former kings, by the city of London, and by the church of Westminster; in support of whose claims, particularly the former, much evidence was gone into at the bar, for more than was sufficient to the only purpose for which it is competent to the jurisdiction of either House of Parliament, acting legislatively, to discuss men's titles, that of shewing that the claim is not a mere pretext to obstruct the Bill.

4. "Whether we consider the Bill as a public Bill, which it affects to be, or as a private Bill, which it really is, we conceive it to be equally destitute of foundation in precedent or principle. It is undoubtedly true, that the parliament frequently does, and ought to make free with property, on the terms of compensation, whenever it is wanted for public purposes; but the public claim extends no further than the public occasion requires: if, therefore, there were any public reason for this embank ment, and it were fit to entrust the execution of the work to private undertakers, we conceive it would be but just, that the emolument arising from thence should be given to the proprietors of the soil, if they chose to undertake it, in preference to any other who might apply for it; and, by parity of reason, if the property is doubtful, to those who have at least a colourable claim, in preference to those who have no claim at all. With regard to private Bills, we know of no instance in which parliament ever did interpose; and we conceive it will be an act of manifest injustice, whenever parliament shall interpose, to accommodate one man with the property of another, against his will, or even without his express consent, Such is the attention

of parliament to the preservation and tection of unknown and unclaimed rights, that no Bill for the regulation of private property is ever suffered to pass, though unopposed, without a general saving of all rights, except those of the parties petitioning for or consenting to the Bill; and when the regulation desired is opposed under a claim of title, if the evidence produced by the party opposing suffices to raise a doubt to whom the property belongs, the Bill proceeds no farther, but the parties are left to settle the doubt, and get it decided as they may in the courts below. We cannot, therefore, forbear to express our surprise and concern, that this Bill, sent up from the Commons without any such saving, should have passed this House without alteration, after so much evidence as was offered in support of the claims of the petitioners; and after the parliament had respectively declared their readiness to try those claims with the crown in the due course of law, both which claims the Bill itself recognizes as proper to be tried, and one of which, although they have been both treated as chimerical, the undertakers themselves were so far from thinking so, that they appeared in evidence to have been desirous of purchasing that of the city of London, at the price of an annual quit-rent of a farthing per foot.

5. "The saving clauses inserted in this Bill, if they can be so termed, serve only to shew, that in the idea of those who framed them, this was a Bill in which saving clauses were necessary, and that they were nevertheless determined so to frame them, as that they should be of no effect; for not to mention the obvious difference, to the disadvantages of the petitioners, between their provision and the general saving clause, which usually is, and always ought to be inserted in Bills where a saving clause is necessary, to deter the petitioners the more effectually from attempting to get through the embarrassments with which their right of suing is involved, the object of their suit is, by the terms of the provision, placed for ever out of their reach; and whether they succeed or miscarry, the property they contend for is to become at all events the property of the undertakers, and a verdict establishing the petitioners' titles is to be of no other use than to give them a claim to such a compensation as a jury may think fit to estimate, who will not fail to be told that they are to compute the soil as covered with

fect effect if the jurors were not held to be competent to try the whole matter aforesaid, for settling and clearing such doubts and controversies, and for securing to the subject the effectual and complete benefit of trial by juries in such indict

water, and subject to the public right of navigating over it. In order to give some colour to this extraordinary and unexampled provision, each of these clauses begins with asserting as a fact, that the petitioners had insisted on a compensation from the undertakers for the liberty of embankments and informations: be it enacted, ing; an assertion which the counsel for the petitioners flatly contradicted; of the truth of which, with regard to either of the petitioners, no evidence was offered on the part of the undertakers; and of the falsehood of which, with regard to the city of London, there can be no doubt, since, instead of claiming a compensation, it was not denied that it had been offered them, and they refused it. These clauses, therefore, we cannot but consider as a mockery of all the forms of parliamentary proceeding, and, with regard to the individuals whom they affect, as adding insult to oppression; and if we had no other objection to the Bill, we should think ourselves bound by the duty we owe to the petitioners, and to ourselves as members of this House, to protest against a proceeding of so alarming and dangerous an example to the property of the whole kingdom, naturally tending, as we conceive, to increase and justify the general want of confidence in the present parliament. (Signed) Wycomb, King, Tankerville."

Debate in the Commons on the Bill for explaining the Powers of Juries in Prosecutions for Libels.] March 7. Mr. Dowdeswell moved, "That leave be given to bring in a Bill for settling doubts and controversies concerning the right of jurors, in trials of persons prosecuted for writing, printing, and publishing libels, and for securing to the subject the effectual and complete benefit of trial by juries in such cases." He observed, that as doubts had arisen in the people's minds respecting the power of juries in cases of libel; to remove those doubts, he should propose an enacting Bill, to put an end to those doubts and controversies upon that subject, which had unhappily distracted our courts; but that if gentlemen liked a Declaratory Bill better, he had left the matter open. He then read his enacting Bill, as follows:

"Whereas doubts and controversies have arisen at various times concerning the right of jurors to try the whole matter laid in indictments and informations for seditious and other libels; and whereas trials by juries would be of none or imper

&c. That jurors duly impanelled and sworn to try the issue between the king and the defendant upon any indictment or information for a seditious libel, or a libel under any other denomination or description, shall be held and reputed competent to all intents and purposes, in law and in right, to try every part of the matter laid or charged in the said indictment or information, comprehending the criminal intention of the defendant and the civil tendency of the libel charged, as well as the mere fact of the publication thereof, and the application by inuendo of blanks, initial letters, pictures and other devices; any opinion, question, ambiguity, or doubt, to the contrary notwithstanding." Sir George Saville seconded the motion. Upon this occasion,

Mr. Edmund Burke* spoke as follows:

Sir; 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

* Burke's Works, vol. 10, p. 109. 8vo edit. 1812.

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 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 clusive province of the judge. Thus

having reduced the jury to the cognizance of facts, not in themselves presumptively criminal, but actions neutral and indif ferent, 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.

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 of fence, but no very precise definition of the crime, and no trial at all: see the statute of 3d Edward 1, 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 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 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 7, and in the 3d 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 1, 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.

I

The wisdom, however, of government is of more importance, than the laws. 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 judg ment, 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.

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We have in a libel, 1st, The writing. 2d. The communication, called by the lawyers the publication. 3d, The application to persons and facts. 4th, The intent and tendency. 5th, The matter,diminution of fame. The law-presumptions 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 public discussion of a public 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. 2. 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 will not bear an exact definition. It may seem to take away every thing, which it does not positively establish, and this night be inconvenient; or it may seem, vice versa, 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 [VOL. XVII.]

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 freedon, 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.

I

You cannot open your statute book without seeing positive provisions relative to every right of the subject. This 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, authority of courts, juries, must have been modelled according to the occasion. 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, 43 acts of parliament, in which they have been changed with all the authority of a creator over its creature, from Magna Charta to the great alterations, which were made in the 29th of George 2.

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 disco[E]

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