struck at; where they would damn the principle, censure the persons, and annul the acts but where the law has 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 take 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 re

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scinded; 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 o 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, "Blesssed be not the complaining tongue, but blessed be the amending hand."

An improper and injurious account of the bill brought into the house of commons by Mr. Dowdeswell has lately appeared in one of the

The manuscript, from which this letter is taken, is in Mr. Burke's own handwriting, but it does not appear to whom it was address ed, nor is there any date affixed to it. It has been thought proper to insert it here as being connected with the subject of the foregoing speech.

public papers. I am not at all surprised at it, as I am not a stranger to the views and politics of those who have caused it to be inserted.

Mr. Dowdeswell did not bring in an enact ing bill to give to juries, as the account ex presses it, a power to try law and fact in matter of libel. Mr. Dowdeswell brought in a bill to put an end to those doubts and controversies upon that subject, which have unhappily distracted our courts, to the great detriment of

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the public, and to the great dishonour of the national justice.

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 innuendoes, 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 revolution; 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 and disgrace the authority of the judge, 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.

Mr. Dowdeswell's bill was brought in for that purpose. It gives to the jury no new powers; but, after reciting the doubts and controversies, (which nobody denies actually to subsist,) and after stating that, if juries are not reputed competent to try the whole matter, the 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 lo, who siate a doubt and controversy, with out charging with criminality those persons, who so doubted, and so controverted.

Such a style is frequent in acts of this nature; and is that only, which is suited to the occasion. An insidious use has been made of the words enact and declare, as if they were forma and operative words of force to distinguish different species of laws producing different effects. Nothing is more groundless, and I am persuaded no lawyer will stand to such an assertion. The gentlemen, who say that a bill ought to have been brought in upon the principle, and in the style of the petition of

right, and declaration of right, ought to cons!der how far the circumstances are the same in the two cases; and how far they are prepared to go the whole lengths of the reason of those remarkable laws. Mr. Dowdeswell and his friends are of opinion, that the circumstances are not the same, and that therefore the bill ought not to be the same.

sons,

It has been always disagreeable to the parwho compose that connection, to engage wantonly in a paper war; especially with gentlemen, for whom they have an esteem, and who seem to agree with them in the great grounds of their public conduct: but they can never consent to purchase any assistance from any persons by the forfeiture of their own reputation. They respect public opinion; and therefore whenever they shall be called upon, they are ready to meet their adversaries, as soon as they please, before the tribunal of the public, and there to justify the constitutional nature and tendency, the propriety, the prudence, and the policy of their bill. They are equally ready to explain and to justify all their proceedings in the conduct of it; equally ready to defend their resolution to make it one object (if ever they should have the power) in a plar of public reformation.

Your correspondent ought to have been sa tisfied with the assistance, which his friends have lent to administration in defeating tha: bill. He ought not to make a feeble endea vour (I dare say much to the displeasure of those friends) to disgrace the gentleman who brought it in. A measure, proposed by Mr. Dowdeswell, seconded by Sir George Saville, and supported by their friends, will stand fair with the public, even though it should have been opposed by that list of names, (respectable names I admit,) which have been printed with so much parade and ostentation in your papers.

It is not true, that Mr. Burke spoke in praise of Lord Mansfield. If he had found any thing in Lord Mansfield praiseworthy, I fancy he is not disposed to make an apology to any body for doing justice. Your correspondent's reason for asserting it is visible enough; and it is altogether in the strain of other misrepresentations. That gentleman spoke decently of the judges, and he did no more; most of the gentlemen, who debated on both sides, held the same language; and nobody will think their zeal the less warm, or the less effectual, because it is not attended with scurrility and virulence.

LIBEL BILL.

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 trial by juries would be of none or imperfect 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 indictments and informations; Be it enacted, &c. That jurors duly impannelled 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 said indictment or information, comprehending the criminal intention of the defendant, and the evil tendency of the libel charged, as well as the mere fact of the publication thereof, and the application by innuendo of blanks, initial letters, pictures, and other devices; any opinion, question, ambiguity or doubt to the contrary notwithstand ing.

THIS act [the marriage act] stands upon two principles; one, that the power of marrying without consent of parents should not take place till twenty-one years of age; the other, that all marriages should be public.

The proposition of the honourable mover goes to the first; and undoubtedly his motives are fair and honourable; and even in that measure, by which he would take away paternal power, he is influenced to it by filial piety, and he is led into it by a natural, and to him inevitable but real mistake, that the ordinary race of mankind advance as fast towards maturity of judgment and understanding as he does.

The question is not now, whether the law ought to acknowledge and protect such a state of life as minority; nor whether the continuance, which is fixed for that state, be not improperly prolonged in the law of England. Neither of these in general are questioned. The only question is, whether matrimony is to be taken out of the general rule, and whether the minors of both sexes, without the consent of their parents, ought to have a capacity of contracting the matrimonial, whilst they 23ve not the capacity of contracting any other

'fnis bill was brought into the house of commons by Mr. Fox, June 1, 1781; and rejected on the second reading, without a division.

engagment. Now appears to me very clear, that they ought not. It is a great mistake to think, that mere animal propagation is the sole end of matrimony. Matrimony is instituted not only for the propagation of men, but for their nutrition, their education, their establishment; and for the answering of all the purposes of a rational and moral being; and it is not the duty of the community to consider alone of how many, but how useful citizens it shall be composed.

It is most certain, that men are well qualified for propagation, long before they are sufficiently qualified even by bodily strength, much less by mental prudence, and by acquired skill in trades and professions, for the maintenance of a family. Therefore, to enable and authorize any man to introduce citizens into the commonwelth before a rational security can be given that he may provide for them, and educate them as citizens ought to be provided for and educated, is totally incongruous with the whole order of society. Nay, it is fundamentally unjust; for a man that breeds a family without competent means of maintenance, incumbers other men with his children, and disables them so far from maintaining their own. The improvident marriage of one man becomes a tax upon the orderly and reTherefore gular marriage of all the rest. those laws are wisely constituted, that give a

man the use of all his faculties at one time; that they may be mutually subservient, aiding and assisting to each other: that the time of his completing his bodily strength, the time of mental discretion, the time of his having learn ed his trade, and the time at which he has the disposition of his fortune, should be likewise the time in which he is permitted to introduce citizens into the state, and to charge the community with their maintenance. To give a man a family during his apprenticeship, whilst his very labour belongs to another; to give him a family when you do not give him a fortune to maintain it; to give him a family before he can contract any one of those engagements, without which no business can be carried on, would be to burden the state with families without any security for their maintenance. When parents themselves marry their children, they become in some sort security to prevent the all consequences. You have this security in parental consent; the state takes its security in the knowledge of human nature. Parents ordinarily consider little the passion of their children, and their present gratification. Don't fear the power of a father; it is kind to passion to give it time to cool. But their censures sometimes make me smile; sometimes, for I am very infirm, make me angry; sæpe bilem, sæpe jocum movent.

It gives me pain to differ on this occasion from many, if not most of those whom I honour and esteem. To suffer the grave animadversion and censorial rebuke of the honourable gentleman who made the motion; of him whose good nature and good sense the house look upon with a particular partiality; whose approbation would have been one of the highest objects of my ambition; this hurts me. It is said, the marriage act is aristocratic. I am accused, I am told abroad, of being a man of aristocratic principles. If by aristocracy they mean the peers, I have no vulgar admiration, nor any vulgar antipathy towards them; I hold their order in cold and decent respect. I hold them to be of an absolute necessity in the constitution, but I think they are only good when kept within their proper bounds. I trust, whenever there has been a dispute between these houses, the part I have taken has not been equivocal. If by the aristocracy, which indeed comes nearer to the point, they mean an adherence to the rich and powerful against the poor and weak, this would indeed be a very extraordinary part. I have incurred the odium of gentlemen in this house for not paying sufficient regard to men of ample property. When, indeed the smallest rights of the poorest

people in the kingdom are in question, I would set my face against any act of pride and power countenanced by the highest that are in it. and if it should come to the last extremity and to a contest of blood, God forbid! God forbid!

my part is taken; I would take my fate with the poor, and low, and feeble. But if these people came to turn their liberty into a cloak for maliciousness, and to seek a privilege of exemption, not from power, but from the rules of morality and virtuous discipline, then 1 would join my hand to make them feel the force, which a few, united in a good cause, have over a multitude of the profligate and ferocious.

I wish the nature of the ground of repeal were considered with a little attention. It is said the act tends to accumulate, to keep up the power of great families, and to add wealth to wealth. It may be that it does so. It is impossible that any principle of law or government useful to the community should be established without an advantage to those who have the greatest stake in the country. Even some vices arise from it. The same laws which secure property encourage avarice; and the fences made about honest acquisition are the strong bars which secure the hoards of the miser. The dignities of magistracy are encouragements to ambition, with all the black train of villanies, which attend that wicked passion. But still we must have laws to se. cure property; and still we must have ranks and distinctions, and magistracy in the state, notwithstanding their manifest tendency to encourage avarice and ambition.

By affirming the parental authority throughout the state, parents in high rank will generally aim at, and will sometimes have the means too, of preserving their minor children from any but wealthy or splendid matches. But this authority preserves from a thousand misfortunes, which, embitter every part of every man's domestic life, and tear to pieces the dearest ties in human society.

I am no peer, nor like to be-but am in middle life, in the mass of citizens; yet I should feel for a son, who married a prostitute woman, or a daughter, who married a dishonourable and prostituted man, as much as any peer in the realm

You are afraid of the avaricious principle of fathers. But observe that the avaricious principle is here mitigated very considerably. It is avarice by proxy; it is avarice not working by itself or for itself, but through the medium of parental affection, meaning to procure good to its offspring. But the contest is rol between love and avarice.