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SPEECH ON THE MIDDLESEX ELECTION
February, 1771

Mr. Speaker,—In every complicated Constitution (and every free Constitution is complicated) cases will arise, when the several orders of the State will clash with one another, and disputes will arise about the limits of their several rights and privileges.  It may be almost impossible to reconcile them.

Carry the principle on by which you expelled Mr. Wilkes, there is not a man in the House, hardly a man in the nation, who may not be disqualified.  That this House should have no power of expulsion is a hard saying.  That this House should have a general discretionary power of disqualification is a dangerous saying.  That the people should not choose their own representative, is a saying that shakes the Constitution.  That this House should name the representative, is a saying which, followed by practice, subverts the constitution.  They have the right of electing, you have a right of expelling; they of choosing, you of judging, and only of judging, of the choice.  What bounds shall be set to the freedom of that choice?  Their right is prior to ours, we all originate there.  They are the mortal enemies of the House of Commons, who would persuade them to think or to act as if they were a self-originated magistracy, independent of the people and unconnected with their opinions and feelings.  Under a pretence of exalting the dignity, they undermine the very foundations of this House.  When the question is asked here, what disturbs the people, whence all this clamour, we apply to the treasury-bench, and they tell us it is from the efforts of libellers and the wickedness of the people, a worn-out ministerial pretence.  If abroad the people are deceived by popular, within we are deluded by ministerial, cant.  The question amounts to this, whether you mean to be a legal tribunal, or an arbitrary and despotic assembly.  I see and I feel the delicacy and difficulty of the ground upon which we stand in this question.  I could wish, indeed, that they who advised the Crown had not left Parliament in this very ungraceful distress, in which they can neither retract with dignity nor persist with justice.  Another parliament might have satisfied the people without lowering themselves.  But our situation is not in our own choice: our conduct in that situation is all that is in our own option.  The substance of the question is, to put bounds to your own power by the rules and principles of law.  This is, I am sensible, a difficult thing to the corrupt, grasping, and ambitious part of human nature.  But the very difficulty argues and enforces the necessity of it.  First, because the greater the power, the more dangerous the abuse.  Since the Revolution, at least, the power of the nation has all flowed with a full tide into the House of Commons.  Secondly, because the House of Commons, as it is the most powerful, is the most corruptible part of the whole Constitution.  Our public wounds cannot be concealed; to be cured, they must be laid open.  The public does think we are a corrupt body.  In our legislative capacity we are, in most instances, esteemed a very wise body.  In our judicial, we have no credit, no character at, all.  Our judgments stink in the nostrils of the people.  They think us to be not only without virtue, but without shame.  Therefore, the greatness of our power, and the great and just opinion of our corruptibility and our corruption, render it necessary to fix some bound, to plant some landmark, which we are never to exceed.  That is what the bill proposes.  First, on this head, I lay it down as a fundamental rule in the law and constitution of this country, that this House has not by itself alone a legislative authority in any case whatsoever.  I know that the contrary was the doctrine of the usurping House of Commons which threw down the fences and bulwarks of law, which annihilated first the lords, then the Crown, then its constituents.  But the first thing that was done on the restoration of the Constitution was to settle this point.  Secondly, I lay it down as a rule, that the power of occasional incapacitation, on discretionary grounds, is a legislative power.  In order to establish this principle, if it should not be sufficiently proved by being stated, tell me what are the criteria, the characteristics, by which you distinguish between a legislative and a juridical act.  It will be necessary to state, shortly, the difference between a legislative and a juridical act.  A legislative act has no reference to any rule but these two: original justice, and discretionary application.  Therefore, it can give rights; rights where no rights existed before; and it can take away rights where they were before established.  For the law, which binds all others, does not and cannot bind the law-maker; he, and he alone, is above the law.  But a judge, a person exercising a judicial capacity, is neither to apply to original justice, nor to a discretionary application of it.  He goes to justice and discretion only at second hand, and through the medium of some superiors.  He is to work neither upon his opinion of the one nor of the other; but upon a fixed rule, of which he has not the making, but singly and solely the application to the case.

The power assumed by the House neither is, nor can be, judicial power exercised according to known law.  The properties of law are, first, that it should be known; secondly, that it should be fixed and not occasional.  First, this power cannot be according to the first property of law; because no man does or can know it, nor do you yourselves know upon what grounds you will vote the incapacity of any man.  No man in Westminster Hall, or in any court upon earth, will say that is law, upon which, if a man going to his counsel should say to him, “What is my tenure in law of this estate?” he would answer, “Truly, sir, I know not; the court has no rule but its own discretion: they will determine.”  It is not a, fixed law, because you profess you vary it according to the occasion, exercise it according to your discretion; no man can call for it as a right.  It is argued that the incapacity is not originally voted, but a consequence of a power of expulsion: but if you expel, not upon legal, but upon arbitrary, that is, upon discretionary grounds, and the incapacity is ex vi termini and inclusively comprehended in the expulsion, is not the incapacity voted in the expulsion?  Are they not convertible terms? and, if incapacity is voted to be inherent in expulsion, if expulsion be arbitrary, incapacity is arbitrary also.  I have, therefore, shown that the power of incapacitation is a legislative power; I have shown that legislative power does not belong to the House of Commons; and, therefore, it follows that the House of Commons has not a power of incapacitation.

I know not the origin of the House of Commons, but am very sure that it did not create itself; the electors wore prior to the elected; whose rights originated either from the people at large, or from some other form of legislature, which never could intend for the chosen a power of superseding the choosers.

If you have not a power of declaring an incapacity simply by the mere act of declaring it, it is evident to the most ordinary reason you cannot have a right of expulsion, inferring, or rather, including, an incapacity, For as the law, when it gives any direct right, gives also as necessary incidents all the means of acquiring the possession of that right, so where it does not give a right directly, it refuses all the means by which such a right may by any mediums be exercised, or in effect be indirectly acquired.  Else it is very obvious that the intention of the law in refusing that right might be entirely frustrated, and the whole power of the legislature baffled.  If there be no certain invariable rule of eligibility, it were better to get simplicity, if certainty is not to be had; and to resolve all the franchises of the subject into this one short proposition—the will and pleasure of the House of Commons.

The argument, drawn from the courts of law, applying the principles of law to new cases as they emerge, is altogether frivolous, inapplicable, and arises from a total ignorance of the bounds between civil and criminal jurisdiction, and of the separate maxims that govern these two provinces of law, that are eternally separate.  Undoubtedly the courts of law, where a new case comes before them, as they do every hour, then, that there may be no defect in justice, call in similar principles, and the example of the nearest determination, and do everything to draw the law to as near a conformity to general equity and right reason as they can bring it with its being a fixed principle.  Boni judicis est ampliare justitiam—that is, to make open and liberal justice.  But in criminal matters this parity of reason, and these analogies, ever have been, and ever ought to be, shunned.

Whatever is incident to a court of judicature, is necessary to the House of Commons, as judging in elections.  But a power of making incapacities is not necessary to a court of judicature; therefore a power of making incapacities is not necessary to the House of Commons.

Incapacity, declared by whatever authority, stands upon two principles: first, an incapacity arising from the supposed incongruity of two duties in the commonwealth; secondly, an incapacity arising from unfitness by infirmity of nature, or the criminality of conduct.  As to the first class of incapacities, they have no hardship annexed to them.  The persons so incapacitated are paid by one dignity for what they abandon in another, and, for the most part, the situation arises from their own choice.  But as to the second, arising from an unfitness not fixed by nature, but superinduced by some positive acts, or arising from honourable motives, such as an occasional personal disability, of all things it ought to be defined by the fixed rule of law—what Lord Coke calls the Golden Metwand of the Law, and not by the crooked cord of discretion.  Whatever is general is better born.  We take our common lot with men of the same description.  But to be selected and marked out by a particular brand of unworthiness among our fellow-citizens, is a lot of all others the hardest to be borne: and consequently is of all others that act which ought only to be trusted to the legislature, as not only legislative in its nature, but of all parts of legislature the most odious.  The question is over, if this is shown not to be a legislative act.  But what is very usual and natural, is to corrupt judicature into legislature.  On this point it is proper to inquire whether a court of judicature, which decides without appeal, has it as a necessary incident of such judicature, that whatever it decides de jure is law.  Nobody will, I hope, assert this, because the direct consequence would be the entire extinction of the difference between true and false judgments.  For, if the judgment makes the law, and not the law directs the judgment, it is impossible there could be such a thing as an illegal judgment given.

But, instead of standing upon this ground, they introduce another question, wholly foreign to it, whether it ought not to be submitted to as if it were law.  And then the question is, By the Constitution of this country, what degree of submission is due to the authoritative acts of a limited power?  This question of submission, determine it how you please, has nothing to do in this discussion and in this House.  Here it is not how long the people are bound to tolerate the illegality of our judgments, but whether we have a right to substitute our occasional opinion in the place of law, so as to deprive the citizen of his franchise.

SPEECH ON THE POWERS OF JURIES IN PROSECUTIONS FOR LIBELS
March, 1771

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 he 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 to 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 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.  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 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; out of this principle 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, acid virtue of the privilege, is taken out of it; that is, in the case of a trial by indictment or information for 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 cognisance 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 felonicé 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 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 3rd 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, 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 VII., 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 misdemeanours.  For the trial of misdemeanours 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 in all government, and if opinion be support, what takes away this destroys that support; but the liberty of the press is necessary to this government.

The wisdom, however, of government is of more importance than the laws.  I should study the temper of the people before I ventured on actions of this kind.  I would consider the whole of the prosecution of a libel of such importance as Junius, as one piece, as one consistent plan of operations; and I would contrive it so that, if I were defeated, I should not be disgraced; that even my victory should not be more ignominious than my defeat; I would so manage, that the lowest in the predicament of guilt should not be the only one in punishment.  I would not inform against the mere vender of a collection of pamphlets.  I would not put him to trial first, if I could possibly avoid it.  I would rather stand the consequences of my first error, than carry it to a judgment that must disgrace my prosecution, or the court.  We ought to examine these things in a manner which becomes ourselves, and becomes the object of the inquiry; not to examine into the most important consideration which can come before us, with minds heated with prejudice and filled with passions, with vain popular opinions and humours, and when we propose to examine into the justice of others, to be unjust ourselves.

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.