Thoughts on the Present Discontents, and Speeches
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Edmund Burke >> Thoughts on the Present Discontents, and Speeches
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An inquiry is wished, as the most effectual way of putting an end to
the clamours 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 versa 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
armour, 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
shrank 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 neighbourhood 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 risen 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 clamours, will entirely change, if not very much
relax from their rigour; 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 clamour is
sufficient to shake the resolution they build upon the solid basis
of a legal principle, I would endeavour 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
quaedam 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 a
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 dishonourable contention between
the court and juries should subsist any longer? On what principle
is it that a jury 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 doubted, 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 bounds, from my plough, my counter,
or my loom, am fit to direct you in your 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 praeterito. 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: first, a plausible principle
of law; secondly, 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 having 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 dishonoured,
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 clamour 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 clamours aim at redress. But a clamour made merely for the
purpose of rendering the people discontented with their situation,
without an endeavour 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 clamour, 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 endeavours. 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."
SPEECH ON A BILL FOR SHORTENING THE DURATION OF PARLIAMENTS
It is always to be lamented when men are driven to search into the
foundations of the commonwealth. It is certainly necessary to
resort to the theory of your government whenever you propose any
alteration in the frame of it, whether that alteration means the
revival of some former antiquated and forsaken constitution of
state, or the introduction of some new improvement in the
commonwealth. The object of our deliberation is, to promote the
good purposes for which elections have been instituted, and to
prevent their inconveniences. If we thought frequent elections
attended with no inconvenience, or with but a trifling
inconvenience, the strong overruling principle of the Constitution
would sweep us like a torrent towards them. But your remedy is to
be suited to your disease--your present disease, and to your whole
disease. That man thinks much too highly, and therefore he thinks
weakly and delusively, of any contrivance of human wisdom, who
believes that it can make any sort of approach to perfection. There
is not, there never was, a principle of government under heaven,
that does not, in the very pursuit of the good it proposes,
naturally and inevitably lead into some inconvenience, which makes
it absolutely necessary to counterwork and weaken the application of
that first principle itself; and to abandon something of the extent
of the advantage you proposed by it, in order to prevent also the
inconveniences which have arisen from the instrument of all the good
you had in view.
To govern according to the sense and agreeably to the interests of
the people is a great and glorious object of government. This
object cannot be obtained but through the medium of popular
election, and popular election is a mighty evil. It is such, and so
great an evil, that though there are few nations whose monarchs were
not originally elective, very few are now elected. They are the
distempers of elections, that have destroyed all free states. To
cure these distempers is difficult, if not impossible; the only
thing therefore left to save the commonwealth is to prevent their
return too frequently. The objects in view are, to have parliaments
as frequent as they can be without distracting them in the
prosecution of public business; on one hand, to secure their
dependence upon the people, on the other to give them that quiet in
their minds, and that ease in their fortunes, as to enable them to
perform the most arduous and most painful duty in the world with
spirit, with efficiency, with independency, and with experience, as
real public counsellors, not as the canvassers at a perpetual
election. It is wise to compass as many good ends as possibly you
can, and seeing there are inconveniences on both sides, with
benefits on both, to give up a part of the benefit to soften the
inconvenience. The perfect cure is impracticable, because the
disorder is dear to those from whom alone the cure can possibly be
derived. The utmost to be done is to palliate, to mitigate, to
respite, to put off the evil day of the Constitution to its latest
possible hour, and may it be a very late one!
This bill, I fear, would precipitate one of two consequences, I know
not which most likely, or which most dangerous: either that the
Crown by its constant stated power, influence, and revenue, would
wear out all opposition in elections, or that a violent and furious
popular spirit would arise. I must see, to satisfy me, the
remedies; I must see, from their operation in the cure of the old
evil, and in the cure of those new evils, which are inseparable from
all remedies, how they balance each other, and what is the total
result. The excellence of mathematics and metaphysics is to have
but one thing before you, but he forms the best judgment in all
moral disquisitions, who has the greatest number and variety of
considerations, in one view before him, and can take them in with
the best possible consideration of the middle results of all.
We of the opposition, who are not friends to the bill, give this
pledge at least of our integrity and sincerity to the people, that
in our situation of systematic opposition to the present ministers,
in which all our hope of rendering it effectual depends upon popular
interest and favour, we will not flatter them by a surrender of our
uninfluenced judgment and opinion; we give a security, that if ever
we should be in another situation, no flattery to any other sort of
power and influence would induce us to act against the true
interests of the people.
All are agreed that parliaments should not be perpetual; the only
question is, what is the most convenient time for their duration?
On which there are three opinions. We are agreed, too, that the
term ought not to be chosen most likely in its operation to spread
corruption, and to augment the already overgrown influence of the
crown. On these principles I mean to debate the question. It is
easy to pretend a zeal for liberty. Those who think themselves not
likely to be encumbered with the performance of their promises,
either from their known inability, or total indifference about the
performance, never fail to entertain the most lofty ideas. They are
certainly the most specious, and they cost them neither reflection
to frame, nor pains to modify, nor management to support. The task
is of another nature to those who mean to promise nothing that it is
not in their intentions, or may possibly be in their power to
perform; to those who are bound and principled no more to delude the
understandings than to violate the liberty of their fellow-subjects.
Faithful watchmen we ought to be over the rights and privileges of
the people. But our duty, if we are qualified for it as we ought,
is to give them information, and not to receive it from them; we are
not to go to school to them to learn the principles of law and
government. In doing so we should not dutifully serve, but we
should basely and scandalously betray, the people, who are not
capable of this service by nature, nor in any instance called to it
by the Constitution. I reverentially look up to the opinion of the
people, and with an awe that is almost superstitious. I should be
ashamed to show my face before them, if I changed my ground, as they
cried up or cried down men, or things, or opinions; if I wavered and
shifted about with every change, and joined in it, or opposed, as
best answered any low interest or passion; if I held them up hopes,
which I knew I never intended, or promised what I well knew I could
not perform. Of all these things they are perfect sovereign judges
without appeal; but as to the detail of particular measures, or to
any general schemes of policy, they have neither enough of
speculation in the closet, nor of experience in business, to decide
upon it. They can well see whether we are tools of a court, or
their honest servants. Of that they can well judge; and I wish that
they always exercised their judgment; but of the particular merits
of a measure I have other standards. That the frequency of
elections proposed by this bill has a tendency to increase the power
and consideration of the electors, not lessen corruptibility, I do
most readily allow; so far as it is desirable, this is what it has;
I will tell you now what it has not: 1st. It has no sort of
tendency to increase their integrity and public spirit, unless an
increase of power has an operation upon voters in elections, that it
has in no other situation in the world, and upon no other part of
mankind. 2nd. This bill has no tendency to limit the quantity of
influence in the Crown, to render its operation more difficult, or
to counteract that operation, which it cannot prevent, in any way
whatsoever. It has its full weight, its full range, and its
uncontrolled operation on the electors exactly as it had before.
3rd. Nor, thirdly, does it abate the interest or inclination of
Ministers to apply that influence to the electors: on the contrary,
it renders it much more necessary to them, if they seek to have a
majority in parliament, to increase the means of that influence, and
redouble their diligence, and to sharpen dexterity in the
application. The whole effect of the bill is therefore the removing
the application of some part of the influence from the elected to
the electors, and further to strengthen and extend a court interest
already great and powerful in boroughs; here to fix their magazines
and places of arms, and thus to make them the principal, not the
secondary, theatre of their manoeuvres for securing a determined
majority in parliament.
I believe nobody will deny that the electors are corruptible. They
are men; it is saying nothing worse of them; many of them are but
ill-informed in their minds, many feeble in their circumstances,
easily over-reached, easily seduced. If they are many, the wages of
corruption are the lower; and would to God it were not rather a
contemptible and hypocritical adulation than a charitable sentiment,
to say that there is already no debauchery, no corruption, no
bribery, no perjury, no blind fury, and interested faction among the
electors in many parts of this kingdom: nor is it surprising, or at
all blamable, in that class of private men, when they see their
neighbours aggrandised, and themselves poor and virtuous, without
that eclat or dignity which attends men in higher stations.
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