The Works of the Right Honourable Edmund Burke, Vol. 07 (of 12). Edmund Burke

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      A COPY OF THE PROPOSED BILL

      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 honor 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 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 honorable 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 exclusive province of the judge. Thus having reduced the jury to the cognizance of facts 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, 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 anything 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. 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 unfavorable, 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 3rd Edward I. cap. 84. 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 the Seventh, and in the third 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 I., 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 outwork 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 СКАЧАТЬ