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

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СКАЧАТЬ 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 dishonorable contention between the court and juries should subsist any longer? On what principle is it that a jury [juror?] 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 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 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 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, 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:—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 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 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 dishonored, 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 clamor, 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 clamors aim at redress. But a clamor made merely for the purpose of rendering the people discontented with their situation, without an endeavor 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 clamor, 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 endeavors. 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."

      LETTER

ONMR. DOWDESWELL'S BILL FOR EXPLAINING THE POWERS OF JURIES IN PROSECUTIONS FOR LIBELS.2

      An improper and injurious account of the bill brought into the House of Commons by Mr. Dowdeswell has lately appeared in one of the 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 enacting bill to give to juries, as the account expresses 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 the public, and to the great dishonor 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 СКАЧАТЬ