vered to be no better than an old pot-lid. This species of tenderness to a jury puts me in mind of a gentleman of good condition, who had been reduced to great poverty and distress; application was made to some rich fellows in his neighbourhood to give him some assistance; but they begged to be excused for fear of affronting a person of his high birth; and so the poor gentleman was left to starve out of pure respect to the antiquity of his family. From this principle has arisen an opinion, that I find current amongst gentlemen, that this distemper ought to be left to cure itself; that the judges having been well exposed, and something terrified on account of these clamours, will entirely change, if not very much relax from their rigour; if the present race should not change, that the chances of succession may put other more constitu. tional judges in their place; lastly, if neither should happen, yet that the spirit of an English jury will always be sufficient for the vindication of its own rights, and will not suffer itself to be overborne by the bench. I confess that I totally dissent from all these opinions. These suppositions become the strongest reasons with me to evince the necessity of some clear and positive settlement of this question of contested jurisdiction. If judges are so full of levity, so full of timidity, if they are influenced by such mean and unworthy passions, that a popular clamour is sufficient to shake the resolution they build upon the solid basis of a legal principle, I would endeavour to fix that mercury by a positive law. If to please an administration the judges can go one way to-day, and to please the crowd they can go another to-morrow; if they will oscillate backward and forward betwen power and popularity, it is high time to fix the law in such a manner as to resemble, as it ought, the great Author of all law, in whom there is no variableness nor shadow of turning.

As to their succession, I have just the same opinion. I would not leave it to the chances of promotion, or to the characters of lawyers, what the law of the land, what the rights of juries, or what the liberty of the press should be. My law should not depend upon the fluctuation of the closet, or the complexion of men. Whether a black-haired man or a fair-haired man presided in the court of King's-bench, I would have the law the same; the same, whether he was born in domo regnatrice, and sucked from his infancy the milk of

courts, or was nurtured in the rugged discipline of a popular opposition. This law of court cabal and of party, this 'mens quædam nullo perturbata effectu,' this law of complexion, ought not be endured for a moment in a country, whose being depends upon the certainty, clearness, and stability of institutions.

Now I come to the last substitute for the proposed Bill, the spirit of juries operating their own jurisdiction. This I confess I think the worst of all for the same reasons, on which I objected to the others; and for other weighty reasons besides, which are separate and distinct. First, because juries, being taken at random out of a mass of men infinitely large, must be of characters as various as the body they arise from is large in its extent. If the judges differ in their complexions, much more will a jury. A timid jury will give way to an awful judge delivering oracularly the law, and charging them on their oaths, and putting it home to their consciences, to beware of judging, where the law had given them no competence. We know that they will do so, they have done so in an hundred instances; a respectable member of your own House, no vulgar man, tells you that on the authority of a judge he found a man guilty, in whom at the same time he could find no guilt. But supposing them full of knowledge and full of manly confidence in themselves, how will their knowledge, or their confidence, inform or inspirit others? They give no reason for their verdict, they can but condemn or acquit; and no man can tell the motives, on which they have acquitted or condemned. So that this hope of the power of juries to assert their own jurisdiction must be a principle blind, as being without reason, and as changeable as the complexion of men, and the temper of the times.

But after all, is it fit that this dishonourable contention between the court

and juries should subsist any longer? On what principle is it that a jury refuses to be directed by the court as to its competence? Whether a libel or no libel be a question of law or of fact may be doubtful, but a question of jurisdiction and competence is certainly a question of law; on this the court ought undoubtedly to judge, and to judge solely and exclusively. If they judge wrong from excusable error, you ought to correct it, as to-day it is proposed, by an explanatory Bill; or if by corruption, by Bill of penalties decla

ratory, and by punishment. What does a juror say to a judge when he refuses his opinion upon a question of judicature? You are so corrupt, that I should consider myself a partaker of your crime, were I to be guided by your opinion; or you are so grossly ignorant, that I, fresh from my hounds, from my plough, my counter, or my loom, am fit to direct you in your own profession. This is an unfitting, it is a dangerous state of things. The spirit of any sort of men is not a fit rule for deciding on 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, bat the amphitheatre for gladiators. No-God forbid! Juries ought to 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 præterito. 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 ancient 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 occasion, 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 made merely for the purpose of rendering the people discontented with their situa

tion, 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."*

* An incorrect report of this Speech having appeared in the Public Advertiser of the 13th of March 1771, Mr., Burke wrote the following Letter to the Editor of one of the public Journals. See Burke's Works, vol. 10, p. 129, 8vo edit. 1812.

The friends of the Bill urged the necessity of it beyond doubt or controversy; because it did appear, from a late Paper given by lord Mansfield to the House of Lords, that it was the opinion of all the Judges of the King's-Bench, that the jury should determine only the fact, and the law should be left to the judges; that this was not only the opinion of the judges, but that, in a former debate, all the ministerial lawyers and leaders had supported the same; that the doctrine was dangerous in the highest degree, as encroaching on the palladium of English liberty, the trial by jury, as leaving the essence of the cause to the determination of interested men, the judges; that this doctrine, now adopted by the judges, was not of older date than the reign of queen Anne. In queen Elizabeth's reign, there was a remarkable case, which shewed the contrary to be the opinion then (an indictment of a grand jury at Lincoln, which found a true bill as to the fact, but no true bill as to the malice, &c. This the judges, at that time, determined to be no true bill; by which they determined, that the jury and disgrace the authority of the judges, 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.

"That it is the province of the jury, in informations and indictments for libels, to try nothing more than the fact of the composing, and of the publishing averments and innuendos, is a doctrine 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 RevoJution; and it prevails more or less with the jury according to the degree of 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

benefit of trial by jury will be of none, or imperfect, effect, it enacts, not that the jury shall have the power, but that they shall be held and reputed in law 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

order of the House of Commons. A complaint on these grounds was laid against two of them by one of the members, and a motion carried upon a division for proceeding against them. The printers were accordingly ordered to at tend, which they did not comply with; other notices were served, and different questions arose upon the mode of serving them; the messenger had not seen the printers, and left the order for their attendance with their servants: at length a final order was issued, and the leaving it at their houses was to be deemed a sufficient notice.

"The whole of this measure had been strongly opposed, as well upon its introduction, as upon the questions that arose in the different stages of its progress: though the abuse of the press was acknowledged, it was said, that this was an improper time, in the present temper and disposition of the people, to commit the question of privilege to an unnecessary discussion, and to administer new opportunities for a popular opposition to the branches of legislature, as well as to executive government; that prosecutions of this nature, instead of putting an end to the practice, would increase it, as they would promote the sale of the libels, which was known to be the case in some recent instances; that the ministerial writers were publicly encouraged to the most flagrant abuses of the press; and that while this was done in one instance, whereby some of the most respectable characters in the kingdom were mangled, without regard to shame or to truth, it was in vain to curb it in other cases, or to say to licentiousness, So far shalt thou go, but no further: and that though misrepresentations of any member were undoubtedly infamous, they ought to be legally punished by the person injured, and not by the authority of the House, which, however well supported by precedent, not being conducted by the ordinary forms of legal proceeding, had generally an odious and oppressive appearance.

On the other hand, the enormity of the abuse was insisted on; that it was prejudicial to the interest of gentlemen in their boroughs; that it had never been practised before during the sitting of parliament, and when done in the intervals, had been always conducted with decency; and that it was now become absolutely necessary, either to punish the offenders severely, or to reverse the standing order, which had not only been unobeyed, but violently and outrageously insulted.

"The final order to the printers, having been attended with as little success as the former notices bad been, a motion was made that they should be taken into the custody of

the Serjeant at Arms, for contempt of the orders of the House.-This was opposed, as persevering in a measure originally bad, and which would grow continually worse by the conduct that was pursued; and that it was highly impolitic to provoke the people by a needless display of authority, at a time when they were already too much heated and alarmed, and watched every exercise of power with the utmost jealousy and suspicion, especially in the House of Commons, which, since the business of the Middlesex election, the people were but too apt to consider rather as an instrument of the court than the representative of the people. To this it was answered, that notwithstanding the unjust and groundless suspicions of the vulgar, the dignity of the House must be supported; and that as the order had been made, it must now vindicate its own conduct, by enforcing obedience to it. The question being put, was carried, as every other had been upon this subject, by a prodigious majority.

"The Serjeant at Arms not having been able to meet with the delinquents, and having been besides laughed at by their servants, made his report accordingly to the House; upon which it was resolved to address for a royal proclamation against them, together with a reward for their apprehension; which being done, the proclamation was accordingly issued in the Gazette, and a reward of fifty pounds a piece offered for taking the delinquents.

"As if the original affair had not been capa. ble of affording sufficient trouble, the gentleman who introduced it, had now the fortune to find out six other printers, who were equally culpable with the two first, and accordingly moved to proceed against them. This motion was opposed with great earnestness: it was recommended to consideration, that they had already attempted to punish two, who had eluded their vigilance, and would probably gain a victory over the House; that the honour and dignity of parliament should never be committed on so slight a ground as that of a general order; that as the members for whom the printed speeches had been made, had not made any particular complaint of the injuries done them, the House in general had no business to take it up; and that the different publishers of newspapers throughout England, who were a numerous body, were all under the same predicament with those complained of, and if there was a general prosecution raised against them, the whole time of the House would be taken up, and its attention diverted from all matters of moment, to a ridiculous contest with a set of printers.