Volume VII Part 5 (1/2)
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 publis.h.i.+ng 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 const.i.tutional, 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 n.o.body 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 pa.s.sed 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 a.s.sertion. The gentlemen who say that a bill ought to have been brought in upon the principle and in the style of the Pet.i.tion of Right and Declaration of Right ought to consider how far the circ.u.mstances 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 circ.u.mstances 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 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 a.s.sistance 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 const.i.tutional 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 public reformation.
Your correspondent ought to have been satisfied with the a.s.sistance which his friends have lent to administration in defeating that bill. He ought not to make a feeble endeavor (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 Savile, 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 anything in Lord Mansfield praiseworthy, I fancy he is not disposed to make an apology to anybody for doing justice. Your correspondent's reason for a.s.serting it is visible enough; and it is altogether in the strain of other misrepresentations. That gentlemen spoke decently of the judges, and he did no more; most of the gentlemen who debated, on both sides, held the same language; and n.o.body will think their zeal the less warm, or the less effectual, because it is not attended with scurrility and virulence.
FOOTNOTES:
[2] The ma.n.u.script from which this Letter is taken is in Mr. Burke's own handwriting, but it does not appear to whom it was addressed, 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.
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 impanelled 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 notwithstanding.
SPEECH
ON
A BILL FOR THE REPEAL OF THE MARRIAGE ACT.
JUNE 15, 1781.
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 honorable mover goes to the first; and undoubtedly his motives are fair and honorable; 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 s.e.xes, 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 inst.i.tuted 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 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 inc.u.mbers 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 const.i.tuted that give a man the use of all his faculties at one time, that they may be mutually subservient, aiding and a.s.sisting 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 apprentices.h.i.+p, whilst his very labor 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 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 pa.s.sion of their children and their present gratification. Don't fear the power of a father: it is kind to pa.s.sion to give it time to cool. But their censures sometimes make me smile,--sometimes, for I am very infirm, make me angry: _saepe bilem, saepe joc.u.m movent_.