Chapter V: Book III (4)

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 _felonicè_ 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 unfavorable, 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. 84. 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 the Seventh, 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 misdemeanors. For the trial of misdemeanors 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 humors, 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 clamors 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 armor, 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 shrink 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 neighborhood 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 arisen 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 clamors, will entirely change, if not very much relax from their rigor;--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 clamor is sufficient to shake the resolution they build upon the solid basis of a legal principle, I would endeavor 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.

Now I come to the last substitute for the proposed bill,--the spirit of juries operating their own jurisdiction. This I confess I think the worst of all, for the same reasons on which I objected to the others,--and for other weighty 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

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.

FOOTNOTES:

[2] The manuscript 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 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 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 incumbers 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 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 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 honor and esteem. To suffer the grave animadversion and censorial rebuke of the honorable 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 aristocratic. I am accused, I am told abroad, of being a man of aristocratic principles. If by aristocracy they mean the peers, I have no vulgar admiration, nor any vulgar antipathy towards 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 have incurred the odium of gentlemen in this House 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.

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 villanies 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 domestic life, and tear to pieces the dearest lies 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 dishonorable 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 show 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 honor, possibly the shame and scandal and blot of human society, to debauch 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 MADE IN THE HOUSE OF COMMONS,

FEBRUARY 17, 1772,

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 splendor 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 public 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 tunes could never execute their duty, and in time of disorder would infinitely aggravate the public confusions.

That the property of the Church is a favored 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.

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 laud, 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 long-continued _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 _bonâ 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 _bonâ fide_ be held.

But, first, it was not originally inalienable, no, not by the Canon Law, until the restraining act of the 11th [1st?] of Elizabeth. But the great revolution of the dissolution of monasteries, by the 31st Hen., ch. 13, has so mixed and confounded ecclesiastical with lay property, that a man may by every rule of good faith be possessed of it. The statute of Queen Elizabeth, ann. 1, ch. 1, [?] gave away the bishop's lands.

So far as to _lands_.

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 [1st?] 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 partition-wall was broken down, and tithes and Church possession became no longer synonymous terms. No [A?] 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 inquire 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 _bonâ 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 shown that a layman may be equitably seized of Church lands,--2. of tithes,--3. 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 anything against the Church, her dignities, her honors, 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.

NOTE.

These hints appear to have been first thoughts, which were probably intended to be amplified and connected, and so worked up into a regular dissertation. No date appears of the time when they were written, but it was probably before the year 1765.

HINTS

FOR AN ESSAY ON THE DRAMA.

It is generally observed that no species of writing is so difficult as the dramatic. 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 those who were 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 increased, 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 nothing is more dull in telling than the plot of a play. It is seldom or never a good story in itself; and in this particular, some of the greatest writers, both in ancient and modern theatres, have failed in the most miserable manner. It is well a play has still so many requisites to complete it, that, though the writer should not succeed in these particulars, and therefore should be so far from perfection, there are still enough left in which he may please, at less expense of labor to himself, and perhaps, too, with more real advantage to his auditory. It is, indeed, very difficult happily to excite the passions and draw the characters of men; but our nature leads us more directly to such paintings than to the invention of a story. We are imitative animals; and we are more naturally led to imitate the exertions of character and passion than to observe and describe a series of events, and to discover those relations and dependencies in them which will please. Nothing can be more rare than this quality. Herein, as I believe, consists the difference between the inventive and the descriptive genius. By the inventive genius I mean the creator of agreeable facts and incidents; by the descriptive, the delineator of characters, manners, and passions. Imitation calls us to this; we are in some cases almost forced to it, and it is comparatively easy. More observe the characters of men than the order of things: to the one we are formed by Nature, and by that sympathy from which we are so strongly led to take a part in the passions and manners of our fellow-men; the other is, as it were, foreign and extrinsical. Neither, indeed, can anything be done, even in this, without invention; but it is obvious that this invention is of a kind altogether different from the former. However, though the more sublime genius and the greatest art are required for the former, yet the latter, as it is more common and more easy, so it is more useful, and administers more directly to the great business of life.

If the drama requires such a combination of talents, the most common of which is very rarely to be found and difficult to be exerted, it is not surprising, at a time when almost all kinds of poetry are cultivated with little success, to find that we have done no great matters in this. Many causes may be assigned for our present weakness in that oldest and most excellent branch of philosophy, poetical learning, and particularly in what regards the theatre. I shall here only consider what appears to me to be one of these causes: I mean the wrong notion of the art itself, which begins to grow fashionable, especially among people of an elegant turn of mind with a weak understanding; and these are they that form the great body of the idle part of every polite and civilized nation. The prevailing system of that class of mankind is indolence. This gives them an aversion to all strong movements. It infuses a delicacy of sentiment, which, when it is real, and accompanied with a justness of thought, is an amiable quality, and favorable to the fine arts; but when it comes to make the whole of the character, it injures things more excellent than those which it improves, and degenerates into a false refinement, which diffuses a languor and breathes a frivolous air over everything which it can influence....

Having differed in my opinion about dramatic composition, and particularly in regard to comedy, with a gentleman for whose character and talents I have a very high respect, I thought myself obliged, on account of that difference, to a new and more exact examination of the grounds upon which I had formed my opinions. I thought it would be impossible to come to any clear and definite idea on this subject, without remounting to the natural passions or dispositions of men, which first gave rise to this species of writing; for from these alone its nature, its limits, and its true character can be determined.

There are but four general principles which can move men to interest themselves in the characters of others, and they may be classed under the heads of good and ill opinion: on the side of the first may be classed admiration and love, hatred and contempt on the other. And these have accordingly divided poetry into two very different kinds,--the panegyrical, and the satirical; under one of which heads all genuine poetry falls (for I do not reckon the didactic as poetry, in the strictness of speech).

Without question, the subject of all poetry was originally direct and personal. Fictitious character is a refinement, and comparatively modern; for abstraction is in its nature slow, and always follows the progress of philosophy. Men had always friends and enemies before they knew the exact nature of vice and virtue; they naturally, and with their best powers of eloquence, whether in prose or verse, magnified and set off the one, vilified and traduced the other.