Thoughts on the Present Discontents, and Speeches

An inquiry 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 inquire too much, and too irreverently, because they think their representatives do not inquire at all.

We have in a libel, 1st.  The writing.  2nd.  The communication, called by the lawyers the publication.  3rd.  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. 2nd.  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 everything which it does not positively establish, and this might be inconvenient; or it may seem vice versâ to establish everything 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 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 freedom, 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.

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.  I spare your patience, and I pay a compliment to your understanding, in not attempting to prove that anything 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 shrank from the rude touch of parliamentary remedy, have been the subject of not fewer than, I think, forty-three 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 II.

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 discovered 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 risen 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 constitutional 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 between 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 affectu, this law of complexion, ought not to 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 a 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 his competence?  Whether a libel or no libel be a question of law or of fact may be doubted, 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 declaratory, 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 bounds, from my plough, my counter, or my loom, am fit to direct you in your 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, but 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: first, a plausible principle of law; secondly, 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 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.”

SPEECH ON A BILL FOR SHORTENING THE DURATION OF PARLIAMENTS

It is always to be lamented when men are driven to search into the foundations of the commonwealth.  It is certainly necessary to resort to the theory of your government whenever you propose any alteration in the frame of it, whether that alteration means the revival of some former antiquated and forsaken constitution of state, or the introduction of some new improvement in the commonwealth.  The object of our deliberation is, to promote the good purposes for which elections have been instituted, and to prevent their inconveniences.  If we thought frequent elections attended with no inconvenience, or with but a trifling inconvenience, the strong overruling principle of the Constitution would sweep us like a torrent towards them.  But your remedy is to be suited to your disease—your present disease, and to your whole disease.  That man thinks much too highly, and therefore he thinks weakly and delusively, of any contrivance of human wisdom, who believes that it can make any sort of approach to perfection.  There is not, there never was, a principle of government under heaven, that does not, in the very pursuit of the good it proposes, naturally and inevitably lead into some inconvenience, which makes it absolutely necessary to counterwork and weaken the application of that first principle itself; and to abandon something of the extent of the advantage you proposed by it, in order to prevent also the inconveniences which have arisen from the instrument of all the good you had in view.

To govern according to the sense and agreeably to the interests of the people is a great and glorious object of government.  This object cannot be obtained but through the medium of popular election, and popular election is a mighty evil.  It is such, and so great an evil, that though there are few nations whose monarchs were not originally elective, very few are now elected.  They are the distempers of elections, that have destroyed all free states.  To cure these distempers is difficult, if not impossible; the only thing therefore left to save the commonwealth is to prevent their return too frequently.  The objects in view are, to have parliaments as frequent as they can be without distracting them in the prosecution of public business; on one hand, to secure their dependence upon the people, on the other to give them that quiet in their minds, and that ease in their fortunes, as to enable them to perform the most arduous and most painful duty in the world with spirit, with efficiency, with independency, and with experience, as real public counsellors, not as the canvassers at a perpetual election.  It is wise to compass as many good ends as possibly you can, and seeing there are inconveniences on both sides, with benefits on both, to give up a part of the benefit to soften the inconvenience.  The perfect cure is impracticable, because the disorder is dear to those from whom alone the cure can possibly be derived.  The utmost to be done is to palliate, to mitigate, to respite, to put off the evil day of the Constitution to its latest possible hour, and may it be a very late one!

This bill, I fear, would precipitate one of two consequences, I know not which most likely, or which most dangerous: either that the Crown by its constant stated power, influence, and revenue, would wear out all opposition in elections, or that a violent and furious popular spirit would arise.  I must see, to satisfy me, the remedies; I must see, from their operation in the cure of the old evil, and in the cure of those new evils, which are inseparable from all remedies, how they balance each other, and what is the total result.  The excellence of mathematics and metaphysics is to have but one thing before you, but he forms the best judgment in all moral disquisitions, who has the greatest number and variety of considerations, in one view before him, and can take them in with the best possible consideration of the middle results of all.

We of the opposition, who are not friends to the bill, give this pledge at least of our integrity and sincerity to the people, that in our situation of systematic opposition to the present ministers, in which all our hope of rendering it effectual depends upon popular interest and favour, we will not flatter them by a surrender of our uninfluenced judgment and opinion; we give a security, that if ever we should be in another situation, no flattery to any other sort of power and influence would induce us to act against the true interests of the people.

All are agreed that parliaments should not be perpetual; the only question is, what is the most convenient time for their duration?  On which there are three opinions.  We are agreed, too, that the term ought not to be chosen most likely in its operation to spread corruption, and to augment the already overgrown influence of the crown.  On these principles I mean to debate the question.  It is easy to pretend a zeal for liberty.  Those who think themselves not likely to be encumbered with the performance of their promises, either from their known inability, or total indifference about the performance, never fail to entertain the most lofty ideas.  They are certainly the most specious, and they cost them neither reflection to frame, nor pains to modify, nor management to support.  The task is of another nature to those who mean to promise nothing that it is not in their intentions, or may possibly be in their power to perform; to those who are bound and principled no more to delude the understandings than to violate the liberty of their fellow-subjects.  Faithful watchmen we ought to be over the rights and privileges of the people.  But our duty, if we are qualified for it as we ought, is to give them information, and not to receive it from them; we are not to go to school to them to learn the principles of law and government.  In doing so we should not dutifully serve, but we should basely and scandalously betray, the people, who are not capable of this service by nature, nor in any instance called to it by the Constitution.  I reverentially look up to the opinion of the people, and with an awe that is almost superstitious.  I should be ashamed to show my face before them, if I changed my ground, as they cried up or cried down men, or things, or opinions; if I wavered and shifted about with every change, and joined in it, or opposed, as best answered any low interest or passion; if I held them up hopes, which I knew I never intended, or promised what I well knew I could not perform.  Of all these things they are perfect sovereign judges without appeal; but as to the detail of particular measures, or to any general schemes of policy, they have neither enough of speculation in the closet, nor of experience in business, to decide upon it.  They can well see whether we are tools of a court, or their honest servants.  Of that they can well judge; and I wish that they always exercised their judgment; but of the particular merits of a measure I have other standards.  That the frequency of elections proposed by this bill has a tendency to increase the power and consideration of the electors, not lessen corruptibility, I do most readily allow; so far as it is desirable, this is what it has; I will tell you now what it has not: 1st.  It has no sort of tendency to increase their integrity and public spirit, unless an increase of power has an operation upon voters in elections, that it has in no other situation in the world, and upon no other part of mankind. 2nd.  This bill has no tendency to limit the quantity of influence in the Crown, to render its operation more difficult, or to counteract that operation, which it cannot prevent, in any way whatsoever.  It has its full weight, its full range, and its uncontrolled operation on the electors exactly as it had before. 3rd.  Nor, thirdly, does it abate the interest or inclination of Ministers to apply that influence to the electors: on the contrary, it renders it much more necessary to them, if they seek to have a majority in parliament, to increase the means of that influence, and redouble their diligence, and to sharpen dexterity in the application.  The whole effect of the bill is therefore the removing the application of some part of the influence from the elected to the electors, and further to strengthen and extend a court interest already great and powerful in boroughs; here to fix their magazines and places of arms, and thus to make them the principal, not the secondary, theatre of their manoeuvres for securing a determined majority in parliament.

I believe nobody will deny that the electors are corruptible.  They are men; it is saying nothing worse of them; many of them are but ill-informed in their minds, many feeble in their circumstances, easily over-reached, easily seduced.  If they are many, the wages of corruption are the lower; and would to God it were not rather a contemptible and hypocritical adulation than a charitable sentiment, to say that there is already no debauchery, no corruption, no bribery, no perjury, no blind fury, and interested faction among the electors in many parts of this kingdom: nor is it surprising, or at all blamable, in that class of private men, when they see their neighbours aggrandised, and themselves poor and virtuous, without that éclat or dignity which attends men in higher stations.