Complete Works of Edmund Burke

by Edmund Burke

  In every political proposal we must not leave out of the question the political views and object of the proposer; and these we discover, not by what he says, but by the principles he lays down. “I mean,” says he, “a moderate and temperate reform: that is, I mean to do as little good as possible.” If the Constitution be what you represent it, and there be no danger in the change, you do wrong not to make the reform commensurate to the abuse. Fine reformer, indeed! generous donor! What is the cause of this parsimony of the liberty which you dole out to the people? Why all this limitation in giving blessings and benefits to mankind? You admit that there is an extreme in liberty, which may be infinitely noxious to those who are to receive it, and which in the end will leave them no liberty at all. I think so, too. They know it, and they feel it. The question is, then, What is the standard of that extreme? What that gentleman, and the associations, or some parts of their phalanxes, think proper? Then our liberties are in their pleasure; it depends on their arbitrary will how far I shall be free. I will have none of that freedom. If, therefore, the standard of moderation be sought for, I will seek for it. Where? Not in their fancies, nor in my own: I will seek for it where I know it is to be found, — in the Constitution I actually enjoy. Here it says to an encroaching prerogative,— “Your sceptre has its length; you cannot add an hair to your head, or a gem to your crown, but what an eternal law has given to it.” Here it says to an overweening peerage,— “Your pride finds banks that it cannot overflow”: here to a tumultuous and giddy people,— “There is a bound to the raging of the sea.” Our Constitution is like our island, which uses and restrains its subject sea; in vain the waves roar. In that Constitution, I know, and exultingly I feel, both that I am free, and that I am not free dangerously to myself or to others. I know that no power on earth, acting as I ought to do, can touch my life, my liberty, or my property. I have that inward and dignified consciousness of my own security and independence, which constitutes, and is the only thing which, does constitute, the proud and comfortable sentiment of freedom in the human breast. I know, too, and I bless God for, my safe mediocrity: I know, that, if I possessed all the talents of the gentlemen on the side of the House I sit, and on the other, I cannot, by royal favor, or by popular delusion, or by oligarchical cabal, elevate myself above a certain very limited point, so as to endanger my own fall, or the ruin of my country. I know there is an order that keeps things fast in their place: it is made to us, and we are made to it. Why not ask another wife, other children, another body, another mind?

  The great object of most of these reformers is, to prepare the destruction of the Constitution, by disgracing and discrediting the House of Commons. For they think, (prudently, in my opinion,) that, if they can persuade the nation that the House of Commons is so constituted as not to secure the public liberty, not to have a proper connection with the public interests, so constituted as not either actually or virtually to be the representative of the people, it will be easy to prove that a government composed of a monarchy, an oligarchy chosen by the crown, and such a House of Commons, whatever good can be in such a system, can by no means be a system of free government.

  The Constitution of England is never to have a quietus; it is to be continually vilified, attacked, reproached, resisted; instead of being the hope and sure anchor in all storms, instead of being the means of redress to all grievances, itself is the grand grievance of the nation, our shame instead of our glory. If the only specific plan proposed, individual personal representation, is directly rejected by the person who is looked on as the great support of this business, then the only way of considering it is a question of convenience. An honorable gentleman prefers the individual to the present. He therefore himself sees no middle term whatsoever, and therefore prefers, of what he sees, the individual: this is the only thing distinct and sensible that has been advocated. He has, then, a scheme, which is the individual representation, — he is not at a loss, not inconsistent, — which scheme the other right honorable gentleman reprobates. Now what does this go to, but to lead directly to anarchy? For to discredit the only government which he either possesses or can project, what is this but to destroy all government? and this is anarchy. My right honorable friend, in supporting this motion, disgraces his friends and justifies his enemies in order to blacken the Constitution of his country, even of that House of Commons which supported him. There is a difference between a moral or political exposure of a public evil relative to the administration of government, whether in men or systems, and a declaration of defects, real or supposed, in the fundamental constitution of your country. The first may be cured in the individual by the motives of religion, virtue, honor, fear, shame, or interest. Men may be made to abandon also false systems, by exposing their absurdity or mischievous tendency to their own better thoughts, or to the contempt or indignation of the public; and after all, if they should exist, and exist uncorrected, they only disgrace individuals as fugitive opinions. But it is quite otherwise with the frame and constitution of the state: if that is disgraced, patriotism is destroyed in its very source. No man has ever willingly obeyed, much less was desirous of defending with his blood, a mischievous and absurd scheme of government. Our first, our dearest, most comprehensive relation, our country, is gone.

  It suggests melancholy reflections, in consequence of the strange course we have long held, that we are now no longer quarrelling about the character, or about the conduct of men, or the tenor of measures, but we are grown out of humor with the English Constitution itself: this is become the object of the animosity of Englishmen. This Constitution in former days used to be the admiration and the envy of the world: it was the pattern for politicians, the theme of the eloquent, the meditation of the philosopher, in every part of the world. As to Englishmen, it was their pride, their consolation. By it they lived, for it they were ready to die. Its defects, if it had any, were partly covered by partiality, and partly borne by prudence. Now all its excellencies are forgot, its faults are now forcibly dragged into day, exaggerated by every artifice of representation. It is despised and rejected of men, and every device and invention of ingenuity or idleness set up in opposition or in preference to it. It is to this humor, and it is to the measures growing out of it, that I set myself (I hope not alone) in the most determined opposition. Never before did we at any time in this country meet upon the theory of our frame of government, to sit in judgment on the Constitution of our country, to call it as a delinquent before us, and to accuse it of every defect and every vice, — to see whether it, an object of our veneration, even our adoration, did or did not accord with a preconceived scheme in the minds of certain gentlemen. Cast your eyes on the journals of Parliament. It is for fear of losing the inestimable treasure we have that I do not venture to game it out of my hands for the vain hope of improving it. I look with filial reverence on the Constitution of my country, and never will cut it in pieces, and put it into the kettle of any magician, in order to boil it, with the puddle of their compounds, into youth and vigor. On the contrary, I will drive away such pretenders; I will nurse its venerable age, and with lenient arts extend a parent’s breath.

  SPEECH ON A MOTION, MADE BY THE RIGHT HON. WILLIAM DOWDESWELL, MARCH 7, 1771, FOR LEAVE TO BRING IN A BILL FOR EXPLAINING THE POWERS OF JURIES IN PROSECUTIONS FOR LIBELS. TOGETHER WITH A LETTER IN VINDICATION OF THAT MEASURE, AND A COPY OF THE PROPOSED BILL.

  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 be 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 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 honor 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 honorable 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; and out of this principle the 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, and virtue of the privilege is taken out of it, — that is, in the case of a trial by indictment or information for a 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 cognizance 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 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. ca. 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.