LETTER ON MR. DOWDESWELL'S BILL FOR EXPLAINING THE POWERS OF JURIES IN PROSECUTIONS FOR LIBELS.* An improper and injurious account of the bill brought into the house of commons by Mr. Dowdeswell has lately appeared in one of the publick papers. I am not at all surprised at it; as I am not a stranger to the views and politicks 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 publick, and to the great dishonour of the national justice. That it is the province of the jury, in informations and endictments for libels, to try nothing more than the fact of the composing, and of the publishing averments and innuendos, 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 The manuscript, from which this letter is taken, is in Mr. Burke's own hand-writing, but it does not appear to whom it was addressed; nor is there any date affixed to it. It has been passed into an act of parliament. The implication is directly the contrary; and is as strongly conveyed as it is possible for those to do, who state a doubt and controversy, without 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 formal 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 consider 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. It has been always disagreeable to the persons, who compose that connexion, 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 publick conduct: but they can never consent to purchase any assistance from any persons by the forfeiture of their own reputation. They respect publick 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 publick, 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 plan of publick reformation. Your correspondent ought to have been satisfied with the assistance, which his friends have lent to administration in defeating that bill. He ought not to make a feeble endeavour (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 thought proper to insert it here as being connected with the subject of the foregoing speech. Saville, and supported by their friends, will stand fair with the publick, 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 endictments 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 endictments and informations; BE it enacted, &c. That jurors duly empannelled and sworn to try the issue between the king and defendant | | upon any endictment 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 endictment 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 notwithstanding. SPEECH ON THE SECOND READING OF A BILL FOR THE REPEAL OF THE MARRIAGE ACT.* 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 publick. 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 This bill was brought into the house of commons by Mr. 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 have not the capacity of contracting any other, engagement. Now it 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 Fox, June 1, 1781; and rejected. on the second reading, without a division. 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. | 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 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 I 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. 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 in-have incurred the odium of gentlemen in this house troduce citizens into the commonwealth, 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, encumbers 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 regular marriage of all the rest. Therefore 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 learned 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 burthen 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 ill 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 aristocratick. I am accused, I am told abroad, of being a man of aristocratick principles. If by aristocracy they mean the peers, I have no vulgar admiration, nor any vulgar antipathy, towards 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 villainies, which attend that wicked passion. But still we must have laws to secure 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 domestick 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 prostituted 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 not between love and avarice. While you would guard against the possible operation of this species of benevolent avarice, the avarice of the father, you let loose another species of avarice; that of the fortune-hunter, unmitigated, unqualified. To shew the motives, who has heard of a man running away with a woman not worth sixpence? Do not call this by the name of the sweet and best passion-love. It is robbery; not a jot better than any other. Would you suffer the sworn enemy of his family, his life, and his honour, possibly the shame, and scandal, and blot of human society, to de bauch from his care and protection the dearest pledge that he has on earth, the sole comfort of his declining years, almost in infantine imbecility; and with it to carry into the hands of his enemy, and the disgrace of nature, the dear-earned substance of a careful and laborious life? Think of the daughter of an honest, virtuous parent allied to vice and infamy. Think of the hopeful son tied for life by the meretricious arts of the refuse of mercenary and promiscuous lewdness. Have mercy on the youth of both sexes; protect them from their ignorance and inexperience; protect one part of life by the wisdom of another; protect them by the wisdom of laws, and the care of nature. SPEECH ON A MOTION FOR LEAVE TO BRING IN A BILL TO QUIET THE POSSESSIONS OF THE SUBJECT AGAINST DORMANT CLAIMS OF THE CHURCH.* IF I considered this bill as an attack upon the church, brought in for the purpose of impoverishing and weakening the clergy, I should be one of the foremost in an early and vigorous opposition to it. I admit, the same reasons do not press for limiting the claims of the church, that existed for limiting the Crown by that wisest of all laws, which has secured the property, the peace, and the freedom of this country from the most dangerous mode of attack which could be made upon them all. I am very sensible of the propriety of maintaining that venerable body with decency (and with more than mere decency). I would maintain it according to the ranks wisely established in it with that sober and temperate splendour, that is suitable to a sacred character invested with high dignity. There ought to be a symmetry between all the parts and orders of a state. A poor clergy in an opulent nation can have little correspondence with the body it is to instruct, and it is a disgrace to the publick sentiments of religion. Such irreligious frugality is even bad economy, as the little, that is given, is entirely thrown away. Such an impoverished and degraded clergy in quiet times could never execute their duty, and in time of disorder would infinitely aggravate the publick confusions. That the property of the church is a favoured and privileged property, I readily admit. It is made with great wisdom, since a perpetual body with a perpetual duty ought to have a perpetual provision. This motion was made the 17th February 1772, and rejected The question is not the property of the church, or its security. The question is, whether you will render the principle of prescription a principle of the law of this land, and incorporate it with the whole of your jurisprudence; whether, having given it first against the laity, then against the Crown, you will now extend it to the church. The acts, which were made, giving limitation against the laity, were not acts against the property of those, who might be precluded by limitations. The act of quiet against the Crown was not against the interests of the Crown, but against a power of vexation. If the principle of prescription be not a constitution of positive law, but a principle of natural equity, then to hold it out against any man is not doing him injustice. That tithes are due of common right is readily granted; and if this principle had been kept in its original straitness, it might indeed be supposed, that to plead an exemption was to plead a longcontinued fraud; and that no man could be deceived in such a title; as the moment he bought land he must know, that he bought land tithed. Prescription could not aid him, for prescription can only attach on a supposed bona fide possession. But the fact is, that the principle has been broken in upon. Here it is necessary to distinguish two sorts of property.-1, Land carries no mark on it to distinguish it as ecclesiastical, as tithes do, which are a charge on land; therefore, though it had been made inalienable, it ought perhaps to be subject to limitation. It might bona fide be held. But first it was not originally inalienable; no, on a division; the numbers being, Ayes 117, Noes 141. As to tithes, they are not things in their own nature subject to be barred by prescription upon the general principle. But tithes and church lands, by the statutes of Henry VIII. and the 11th Eliz. have become objects in commercio; for by coming to the Crown they became grantable in that way to the subject, and a great part of the church lands passed through the Crown to the people. By passing to the king, tithes became property to a mixed party; by passing from the king, they became absolutely lay property; the partitionwall was broken down, and tithes and church possession became no longer synonymous terms. No man therefore might become a fair purchaser of tithes, and of exemption from tithes. By the statute of Elizabeth, the lands took the same course, (I will not enquire by what justice, good policy, and decency,) but they passed into lay-lands, became the object of purchases for valuable consideration, and of marriage settlements. Now, if tithes might come to a layman, land in the hands of a layman might be also tithe-free. So that there was an object, which a layman might become seized of equitably and bona fide; there was something, on which a prescription might attach, the end of which is to secure the natural well-meaning ignorance of men, and to secure property by the best of all principles, continuance. I have therefore shewn, that a layman may be equitably seized of church lands-2. Of tithes3. Of exemption from tithes; and you will not contend, that there should be no prescription. Will you say, that the alienations made before the 11th of Elizabeth shall not stand good? I do not mean any thing against the church, her dignities, her honours, her privileges, or her possessions. I should wish even to enlarge them all; not that the church of England is incompetently endowed. This is to take nothing from her but the power of making herself odious. If she be secure herself, she can have no objection to the security of others. For I hope she is secure from lay-bigotry and anti-priestcraft, for certainly such things there are. I heartily wish to see the church secure in such possessions, as will not only enable her ministers to preach the gospel with ease, but of such a kind, as will enable them to preach it with its full effect-so that the pastor shall not have the inauspicious appearance of a tax-gatherer;-such a maintenance as is compatible with the civil prosperity and improvement of their country. HINTS FOR AN ESSAY ON THE DRAMA.* It is generally observed, that no species of writing is so difficult as the dramatick. It must indeed appear so, were we to consider it upon one side only. It is a dialogue, or species of composition, which in itself requires all the mastery of a complete writer with grace and spirit to support. We may add, that it must have a fable too, which necessarily requires invention, one of the rarest qualities of the human mind. It would surprise us, if we were to examine the thing critically, how few good original stories there are in the world. The most celebrated borrow from each other, and are content with some new turn; some corrective, addition, or embellishment. Many of the most celebrated writers in that way can claim no other merit. I do not think La Fontaine has one original story. And if we pursue him to These hints appear to have been first thoughts, which were probably intended to be amplified and connected, and so worked those, who are his originals, the Italian writers of tales and novels, we shall find most even of them drawing from antiquity, or borrowing from the Eastern world, or adopting and decorating the little popular stories they found current and traditionary in their country. Sometimes they laid the foundation of their tale in real fact. Even after all their borrowing from so many funds, they are still far from opulent. How few stories has Boccace, which are tolerable, and how much fewer are there, which you would desire to read twice. But this general difficulty is greatly encreased when we come to the drama. Here a fable is essential; a fable, which is to be conducted with rapidity, clearness, consistency, and surprise, without any, or certainly with very little, aid from narrative. This is the reason, that generally no up into a regular dissertation. No date appears of the time when they were written, but it was probably before the year 1765. |