Читать книгу The Works of the Right Honourable Edmund Burke, Vol. 07 (of 12) - Edmund Burke - Страница 11

ON

MR. 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 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 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 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 assistance 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 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 public 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 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 asserting 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 nobody will think their zeal the less warm, or the less effectual, because it is not attended with scurrility and virulence.