like our island, which uses and restrains its subject sea-in vain the waves roar. In that constitution I know, and exultingly I feel, both that I am free, and that I am not free dangerously to myself or to others. I know that no power on earth, acting as 1 ought to do, can touch my life, my liberty, or my property. I have that inward and dignified Consciousness of my own security and independence, which constitutes, and is the only thing which does constitute, the proud and comfortable sentiment of freedom in the human breast. I know too, and I bless God for, my safe mediocrity; I know, that, if I possessed all the talents of the gentlemen on the side of the house I sit, and on the other, I cannot by royal favour, or by popular delusion, or by oligarchical cabal, elevate myself above a certain very limited point, so as to endanger my own fall or the ruin of my country. I know there is an order that keeps things fast in their place; it is made to us, and we are made to it. Why not ask another wife, other children, another body, another mind.

The great object of most of these reformers is to prepare the destruction of the constitution by disgracing and discrediting the house of commons. For they think, prudently in my opinion, that if they can persuade the nation that the house of commons is so constituted, as not to secure the public liberty; not to have a proper connection with the public interests; so constituted, as not either actually or virtually to be the representative of the people, it will be easy to prove that a government, composed of a monarchy, an oligarchy chosen by the crown, and such a house of commons, whatever good can be in such a system, can by no means be a system of free government.

The constitution of England is never to have a quietus; it is to be continually vilified, attacked, reproached, resisted; instead of being the hope and sure anchor in all storms, instead of being the means of redress to all grievances, itself is the grand grievance of the nation, our shame instead of our glory. If the only specific plan proposed, individual personal representation, is directly rejected by the person, who is looked on as the great support of this business, then the only way of considering it is a question of convenience. An honourable gentleman prefers the individual to the present. He therefore himself sees no middle term whatsoever, and therefore prefers of what he sees the individual; this is the only thing distinct and sensible that has been advocated. He has then a scheme, which is the individual representation; he is not a loss,

not inconsistent-which scheme the other right honourable gentleman roprobates. Now what does this go to, but to lead directly to anarchy? For to discredit the only government, which he either possesses or can project, what is this but to destroy all government; and this is anarchy. My right houourable friend, in supporting this motion, disgraces his friends and justifies his enemies in order to blacken the constitution of his country, even of that house of commons, which supported him. There is a difference between a moral or political exposure of a public evil relative to the administration of government, whether in men or systems, and a declaration of defects, real or supposed, in the fundamental constitution of your country. The first may be cured in the individual by the motives of religion, virtue, honour, fear, shame, or interest; men may be made to abandon also false systems by exposing their absurdity or mischievous tendency to their own better thoughts, or to the contempt or indignation of the public; and after all, if they should exist, and exist uncor rected, they only disgrace individuals as fugitive opinions. But it is quite otherwise with the frame and constitution of the state; if that is disgraced, patriotism is destroyed in its very source. No man has ever willingly obeyed, much less was desirous of defending with his blood, a mischievous and absurd scheme of government. Our first, our dearest, most comprehensive relation, our country is gone.

It suggests melancholy reflections, in consequence of the strange course we have long held, that we are now no longer quarrelling about the character or about the conduct of men, or the tenour of measures; but we are grown out of humour with the English constitution itself; this is become the object of the animosity of Englishmen. This consitution in former days used to be the admiration and the envy of the world; it was the pattern for politicians; the theme of the eloquent; the meditation of the philosopher in every part of the world-as to Englishmen, it was their pride, their consolation. By it they lived, for it they were ready to die. Its defects, if it had any, were partly covered by partiality, and partly borne by prudence. Now all its excellencies are forgot, its faults are now forcibly dragged into day, exaggerated by every artifice of representation; it is despised and rejected of men; and every device and invention of ingenuity or idleness set up in opposition or in preference to it. It is to this humour, and it is to the measures growing out of it, that I set myself (I hope not alone) in the most deter

mined 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 ■ 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 preconceived scheme in the minds of certain gentlemen. Cast your eyes on the journals of parliament. It

is for fear of losing the inestimable treasure wo 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

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 law. yer 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 some thing 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.

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 prose. cutions for libels; against which the question of adjournment was carried on the 7th of March,

1771.

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 antient 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 acts 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, ease 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 parlia ment: 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 primâ facie criminal. The intention is afterwards to appear, for the jury to acquit or condemn. İn 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 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 offence, but no very precise definition of the crime, and no trial at all: see the statute of 3d 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 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, ou 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

venient, 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 legis lative 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 antient 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 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, 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; appliIcation 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 sen an opinion, that I find current among gentlemen, that this distemper ought to be left to cure itself; that the judges, having been well expused, 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 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