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twg_000012585600 | They were complimented upon the principle of this connection by a poet who was in high esteem with them. Addison, who knew their sentiments, could not praise them for what they considered as no proper subject of commendation. As a poet who knew his business, he could not applaud them for a thing which in general estima... | 60 | gutenberg | unknown |
twg_000012585601 | reputable. Addressing himself to Britain, "Thy favourites grow not up by fortune's sport, Or from the crimes or follies of a Court; On the firm basis of desert they rise, From long-tried faith, and friendship's holy ties." The Whigs of those days believed that the only proper method of rising into power was through bar... | 60 | gutenberg | unknown |
twg_000012585602 | experimented fidelity. At that time it was not imagined that patriotism was a bloody idol, which required the sacrifice of children and parents, or dearest connections in private life, and of all the virtues that rise from those relations. They were not of that ingenious paradoxical morality to imagine that a spirit of... | 60 | gutenberg | unknown |
twg_000012585603 | the sufferings of your friends, or that disinterestedness was clearly manifested at the expense of other people's fortune. They believed that no men could act with effect who did not act in concert; that no men could act in concert who did not act with confidence; that no men could act with confidence who were not boun... | 60 | gutenberg | unknown |
twg_000012585604 | opinions, common affections, and common interests. These wise men, for such I must call Lord Sunderland, Lord Godolphin, Lord Somers, and Lord Marlborough, were too well principled in these maxims, upon which the whole fabric of public strength is built, to be blown off their ground by the breath of every childish talk... | 60 | gutenberg | unknown |
twg_000012585605 | be called an ambitious Junto, or that their resolution to stand or fall together should, by placemen, be interpreted into a scuffle for places. Party is a body of men united for promoting by their joint endeavours the national interest, upon some particular principle in which they are all agreed. For my part, I find it... | 60 | gutenberg | unknown |
twg_000012585606 | any one believes in his own politics, or thinks them to be of any weight, who refuses to adopt the means of having them reduced into practice. It is the business of the speculative philosopher to mark the proper ends of Government. It is the business of the politician, who is the philosopher in action, to find out prop... | 60 | gutenberg | unknown |
twg_000012585607 | towards those ends, and to employ them with effect. Therefore, every honourable connection will avow it as their first purpose to pursue every just method to put the men who hold their opinions into such a condition as may enable them to carry their common plans into execution, with all the power and authority of the S... | 60 | gutenberg | unknown |
twg_000012585608 | is attached to certain situations, it is their duty to contend for these situations. Without a proscription of others, they are bound to give to their own party the preference in all things, and by no means, for private considerations, to accept any offers of power in which the whole body is not included, nor to suffer... | 60 | gutenberg | unknown |
twg_000012585609 | led, or to be controlled, or to be over-balanced, in office or in council, by those who contradict, the very fundamental principles on which their party is formed, and even those upon which every fair connection must stand. Such a generous contention for power, on such manly and honourable maxims, will easily be distin... | 60 | gutenberg | unknown |
twg_000012585610 | for place and emolument. The very style of such persons will serve to discriminate them from those numberless impostors who have deluded the ignorant with professions incompatible with human practice, and have afterwards incensed them by practices below the level of vulgar rectitude. It is an advantage to all narrow wi... | 60 | gutenberg | unknown |
twg_000012585611 | air, and, on a cursory view, appear equal to first principles. They are light and portable. They are as current as copper coin, and about as valuable. They serve equally the first capacities and the lowest, and they are, at least, as useful to the worst men as the best. Of this stamp is the cant of _Not men_, _but | 60 | gutenberg | unknown |
twg_000012585612 | measures_; a sort of charm, by which many people got loose from every honourable engagement. When I see a man acting this desultory and disconnected part, with as much detriment to his own fortune as prejudice to the cause of any party, I am not persuaded that he is right, but I am ready to believe he is in earnest. | 60 | gutenberg | unknown |
twg_000012585613 | I respect virtue in all its situations, even when it is found in the unsuitable company of weakness. I lament to see qualities, rare and valuable, squandered away without any public utility. But when a gentleman with great visible emoluments abandons the party in which he has long acted, and tells you it is because he ... | 60 | gutenberg | unknown |
twg_000012585614 | judgment that he acts on the merits of the several measures as they arise, and that he is obliged to follow his own conscience, and not that of others, he gives reasons which it is impossible to controvert, and discovers a character which it is impossible to mistake. What shall we think of him who never differed from a... | 60 | gutenberg | unknown |
twg_000012585615 | set of men until the moment they lost their power, and who never agreed with them in a single instance afterwards? Would not such a coincidence of interest and opinion be rather fortunate? Would it not be an extraordinary cast upon the dice that a man's connections should degenerate into faction, precisely at the criti... | 60 | gutenberg | unknown |
twg_000012585616 | power or he accepts a place? When people desert their connections, the desertion is a manifest fact, upon which a direct simple issue lies, triable by plain men. Whether a _measure_ of Government be right or wrong is _no matter of fact_, but a mere affair of opinion, on which men may, as they do, dispute and wrangle wi... | 60 | gutenberg | unknown |
twg_000012585617 | But whether the individual thinks the measure right or wrong is a point at still a greater distance from the reach of all human decision. It is therefore very convenient to politicians not to put the judgment of their conduct on overt acts, cognisable in any ordinary court, but upon such a matter as can be triable only... | 60 | gutenberg | unknown |
twg_000012585618 | secret tribunal, where they are sure of being heard with favour, or where at worst the sentence will be only private whipping. I believe the reader would wish to find no substance in a doctrine which has a tendency to destroy all test of character as deduced from conduct. He will therefore excuse my adding something mo... | 60 | gutenberg | unknown |
twg_000012585619 | clearing up a point which the great convenience of obscurity to dishonesty has been able to cover with some degree of darkness and doubt. In order to throw an odium on political connection, these politicians suppose it a necessary incident to it that you are blindly to follow the opinions of your party when in direct o... | 60 | gutenberg | unknown |
twg_000012585620 | clear ideas, a degree of servitude that no worthy man could bear the thought of submitting to, and such as, I believe, no connections (except some Court factions) ever could be so senselessly tyrannical as to impose. Men thinking freely will, in particular instances, think differently. But still, as the greater Part of... | 60 | gutenberg | unknown |
twg_000012585621 | of public business are related to, or dependent on, some great leading general principles in Government, a man must be peculiarly unfortunate in the choice of his political company if he does not agree with them at least nine times in ten. If he does not concur in these general principles upon which the party is founde... | 60 | gutenberg | unknown |
twg_000012585622 | draw on a concurrence in their application, he ought from the beginning to have chosen some other, more conformable to his opinions. When the question is in its nature doubtful, or not very material, the modesty which becomes an individual, and (in spite of our Court moralists) that partiality which becomes a well-chos... | 60 | gutenberg | unknown |
twg_000012585623 | in the general sentiment. Thus the disagreement will naturally be rare; it will be only enough to indulge freedom, without violating concord or disturbing arrangement. And this is all that ever was required for a character of the greatest uniformity and steadiness in connection. How men can proceed without any connecti... | 60 | gutenberg | unknown |
twg_000012585624 | sort of materials must that man be made, how must he be tempered and put together, who can sit whole years in Parliament, with five hundred and fifty of his fellow-citizens, amidst the storm of such tempestuous passions, in the sharp conflict of so many wits, and tempers, and characters, in the agitation of such mighty... | 60 | gutenberg | unknown |
twg_000012585625 | of such vast and ponderous interests, without seeing any one sort of men, whose character, conduct, or disposition would lead him to associate himself with them, to aid and be aided, in any one system of public utility? I remember an old scholastic aphorism, which says that "the man who lives wholly detached from other... | 60 | gutenberg | unknown |
twg_000012585626 | or a devil." When I see in any of these detached gentlemen of our times the angelic purity, power, and beneficence, I shall admit them to be angels. In the meantime, we are born only to be men. We shall do enough if we form ourselves to be good ones. It is therefore our business carefully to cultivate in our | 60 | gutenberg | unknown |
twg_000012585627 | minds, to rear to the most perfect vigour and maturity, every sort of generous and honest feeling that belongs to our nature. To bring the, dispositions that are lovely in private life into the service and conduct of the commonwealth; so to be patriots, as not to forget we are gentlemen. To cultivate friendships, and t... | 60 | gutenberg | unknown |
twg_000012585628 | both strong, but both selected: in the one, to be placable; in the other, immovable. To model our principles to our duties and our situation. To be fully persuaded that all virtue which is impracticable is spurious, and rather to run the risk of falling into faults in a course which leads us to act with effect and ener... | 60 | gutenberg | unknown |
twg_000012585629 | to loiter out our days without blame and without use. Public life is a situation of power and energy; he trespasses against his duty who sleeps upon his watch, as well as he that goes over to the enemy. There is, however, a time for all things. It is not every conjuncture which calls with equal force upon the activity | 60 | gutenberg | unknown |
twg_000012585630 | of honest men; but critical exigences now and then arise, and I am mistaken if this be not one of them. Men will see the necessity of honest combination, but they may see it when it is too late. They may embody when it will be ruinous to themselves, and of no advantage to the country; when, for want of | 60 | gutenberg | unknown |
twg_000012585631 | such a timely union as may enable them to oppose in favour of the laws, with the laws on their side, they may at length find themselves under the necessity of conspiring, instead of consulting. The law, for which they stand, may become a weapon in the hands of its bitterest enemies; and they will be cast, at length, in... | 60 | gutenberg | unknown |
twg_000012585632 | that miserable alternative, between slavery and civil confusion, which no good man can look upon without horror, an alternative in which it is impossible he should take either part with a conscience perfectly at repose. To keep that situation of guilt and remorse at the utmost distance is, therefore, our first obligati... | 60 | gutenberg | unknown |
twg_000012585633 | As yet we work in the light. The scheme of the enemies of public tranquillity has disarranged, it has not destroyed us. If the reader believes that there really exists such a Faction as I have described, a Faction ruling by the private inclinations of a Court, against the general sense of the people; and that this Fact... | 60 | gutenberg | unknown |
twg_000012585634 | pursues a scheme for undermining all the foundations of our freedom, weakens (for the present at least) all the powers of executory Government, rendering us abroad contemptible, and at home distracted; he will believe, also, that nothing but a firm combination of public men against this body, and that, too, supported b... | 60 | gutenberg | unknown |
twg_000012585635 | can possibly get the better of it. The people will see the necessity of restoring public men to an attention to the public opinion, and of restoring the Constitution to its original principles. Above all, they will endeavour to keep the House of Commons from assuming a character which does not belong to it. They will e... | 60 | gutenberg | unknown |
twg_000012585636 | House, for its existence for its powers, and its privileges, as independent of every other, and as dependent upon themselves, as possible. This servitude is to a House of Commons (like obedience to the Divine law), "perfect freedom." For if they once quit this natural, rational, and liberal obedience, having deserted t... | 60 | gutenberg | unknown |
twg_000012585637 | seek a support in an abject and unnatural dependence somewhere else. When, through the medium of this just connection with their constituents, the genuine dignity of the House of Commons is restored, it will begin to think of casting from it, with scorn, as badges of servility, all the false ornaments of illegal power,... | 60 | gutenberg | unknown |
twg_000012585638 | some time, disgraced. It will begin to think of its old office of CONTROL. It will not suffer that last of evils to predominate in the country; men without popular confidence, public opinion, natural connection, or natural trust, invested with all the powers of Government. When they have learned this lesson themselves,... | 60 | gutenberg | unknown |
twg_000012585639 | the Court, that it is the true interest of the Prince to have but one Administration; and that one composed of those who recommend themselves to their Sovereign through the opinion of their country, and not by their obsequiousness to a favourite. Such men will serve their Sovereign with affection and fidelity; because ... | 60 | gutenberg | unknown |
twg_000012585640 | is a compliment to their virtue. They will be able to serve him effectually; because they will add the weight of the country to the force of the executory power. They will be able to serve their King with dignity; because they will never abuse his name to the gratification of their private spleen or avarice. This, with... | 60 | gutenberg | unknown |
twg_000012585641 | human frailty, may probably be the general character of a Ministry, which thinks itself accountable to the House of Commons, when the House of Commons thinks itself accountable to its constituents. If other ideas should prevail, things must remain in their present confusion, until they are hurried into all the rage of ... | 60 | gutenberg | unknown |
twg_000012585642 | dead repose of despotism. SPEECH ON THE MIDDLESEX ELECTION FEBRUARY, Mr. Speaker,--In every complicated Constitution (and every free Constitution is complicated) cases will arise, when the several orders of the State will clash with one another, and disputes will arise about the limits of their several rights and privi... | 60 | gutenberg | unknown |
twg_000012585643 | on by which you expelled Mr. Wilkes, there is not a man in the House, hardly a man in the nation, who may not be disqualified. That this House should have no power of expulsion is a hard saying. That this House should have a general discretionary power of disqualification is a dangerous saying. That the people should n... | 60 | gutenberg | unknown |
twg_000012585644 | their own representative, is a saying that shakes the Constitution. That this House should name the representative, is a saying which, followed by practice, subverts the constitution. They have the right of electing, you have a right of expelling; they of choosing, you of judging, and only of judging, of the choice. Wh... | 60 | gutenberg | unknown |
twg_000012585645 | of that choice? Their right is prior to ours, we all originate there. They are the mortal enemies of the House of Commons, who would persuade them to think or to act as if they were a self-originated magistracy, independent of the people and unconnected with their opinions and feelings. Under a pretence of exalting the... | 60 | gutenberg | unknown |
twg_000012585646 | very foundations of this House. When the question is asked here, what disturbs the people, whence all this clamour, we apply to the treasury-bench, and they tell us it is from the efforts of libellers and the wickedness of the people, a worn-out ministerial pretence. If abroad the people are deceived by popular, within... | 60 | gutenberg | unknown |
twg_000012585647 | The question amounts to this, whether you mean to be a legal tribunal, or an arbitrary and despotic assembly. I see and I feel the delicacy and difficulty of the ground upon which we stand in this question. I could wish, indeed, that they who advised the Crown had not left Parliament in this very ungraceful distress, i... | 60 | gutenberg | unknown |
twg_000012585648 | can neither retract with dignity nor persist with justice. Another parliament might have satisfied the people without lowering themselves. But our situation is not in our own choice: our conduct in that situation is all that is in our own option. The substance of the question is, to put bounds to your own power by the ... | 60 | gutenberg | unknown |
twg_000012585649 | law. This is, I am sensible, a difficult thing to the corrupt, grasping, and ambitious part of human nature. But the very difficulty argues and enforces the necessity of it. First, because the greater the power, the more dangerous the abuse. Since the Revolution, at least, the power of the nation has all flowed with a ... | 60 | gutenberg | unknown |
twg_000012585650 | House of Commons. Secondly, because the House of Commons, as it is the most powerful, is the most corruptible part of the whole Constitution. Our public wounds cannot be concealed; to be cured, they must be laid open. The public does think we are a corrupt body. In our legislative capacity we are, in most instances, es... | 60 | gutenberg | unknown |
twg_000012585651 | body. In our judicial, we have no credit, no character at, all. Our judgments stink in the nostrils of the people. They think us to be not only without virtue, but without shame. Therefore, the greatness of our power, and the great and just opinion of our corruptibility and our corruption, render it necessary to fix so... | 60 | gutenberg | unknown |
twg_000012585652 | some landmark, which we are never to exceed. That is what the bill proposes. First, on this head, I lay it down as a fundamental rule in the law and constitution of this country, that this House has not by itself alone a legislative authority in any case whatsoever. I know that the contrary was the doctrine of the usur... | 60 | gutenberg | unknown |
twg_000012585653 | House of Commons which threw down the fences and bulwarks of law, which annihilated first the lords, then the Crown, then its constituents. But the first thing that was done on the restoration of the Constitution was to settle this point. Secondly, I lay it down as a rule, that the power of occasional incapacitation, o... | 60 | gutenberg | unknown |
twg_000012585654 | legislative power. In order to establish this principle, if it should not be sufficiently proved by being stated, tell me what are the criteria, the characteristics, by which you distinguish between a legislative and a juridical act. It will be necessary to state, shortly, the difference between a legislative and a jur... | 60 | gutenberg | unknown |
twg_000012585655 | any rule but these two: original justice, and discretionary application. Therefore, it can give rights; rights where no rights existed before; and it can take away rights where they were before established. For the law, which binds all others, does not and cannot bind the law-maker; he, and he alone, is above the law. ... | 60 | gutenberg | unknown |
twg_000012585656 | a judicial capacity, is neither to apply to original justice, nor to a discretionary application of it. He goes to justice and discretion only at second hand, and through the medium of some superiors. He is to work neither upon his opinion of the one nor of the other; but upon a fixed rule, of which he has not the | 60 | gutenberg | unknown |
twg_000012585657 | making, but singly and solely the application to the case. The power assumed by the House neither is, nor can be, judicial power exercised according to known law. The properties of law are, first, that it should be known; secondly, that it should be fixed and not occasional. First, this power cannot be according to the... | 60 | gutenberg | unknown |
twg_000012585658 | because no man does or can know it, nor do you yourselves know upon what grounds you will vote the incapacity of any man. No man in Westminster Hall, or in any court upon earth, will say that is law, upon which, if a man going to his counsel should say to him, "What is my tenure in law of | 60 | gutenberg | unknown |
twg_000012585659 | this estate?" he would answer, "Truly, sir, I know not; the court has no rule but its own discretion: they will determine." It is not a, fixed law, because you profess you vary it according to the occasion, exercise it according to your discretion; no man can call for it as a right. It is argued that the incapacity is | 60 | gutenberg | unknown |
twg_000012585660 | not originally voted, but a consequence of a power of expulsion: but if you expel, not upon legal, but upon arbitrary, that is, upon discretionary grounds, and the incapacity is _ex vi termini_ and inclusively comprehended in the expulsion, is not the incapacity voted in the expulsion? Are they not convertible terms? a... | 60 | gutenberg | unknown |
twg_000012585661 | in expulsion, if expulsion be arbitrary, incapacity is arbitrary also. I have, therefore, shown that the power of incapacitation is a legislative power; I have shown that legislative power does not belong to the House of Commons; and, therefore, it follows that the House of Commons has not a power of incapacitation. I ... | 60 | gutenberg | unknown |
twg_000012585662 | of Commons, but am very sure that it did not create itself; the electors wore prior to the elected; whose rights originated either from the people at large, or from some other form of legislature, which never could intend for the chosen a power of superseding the choosers. If you have not a power of declaring an incapa... | 60 | gutenberg | unknown |
twg_000012585663 | the mere act of declaring it, it is evident to the most ordinary reason you cannot have a right of expulsion, inferring, or rather, including, an incapacity, For as the law, when it gives any direct right, gives also as necessary incidents all the means of acquiring the possession of that right, so where it does not gi... | 60 | gutenberg | unknown |
twg_000012585664 | directly, it refuses all the means by which such a right may by any mediums be exercised, or in effect be indirectly acquired. Else it is very obvious that the intention of the law in refusing that right might be entirely frustrated, and the whole power of the legislature baffled. If there be no certain invariable rule... | 60 | gutenberg | unknown |
twg_000012585665 | were better to get simplicity, if certainty is not to be had; and to resolve all the franchises of the subject into this one short proposition--the will and pleasure of the House of Commons. The argument, drawn from the courts of law, applying the principles of law to new cases as they emerge, is altogether frivolous, ... | 60 | gutenberg | unknown |
twg_000012585666 | a total ignorance of the bounds between civil and criminal jurisdiction, and of the separate maxims that govern these two provinces of law, that are eternally separate. Undoubtedly the courts of law, where a new case comes before them, as they do every hour, then, that there may be no defect in justice, call in similar... | 60 | gutenberg | unknown |
twg_000012585667 | of the nearest determination, and do everything to draw the law to as near a conformity to general equity and right reason as they can bring it with its being a fixed principle. _Boni judicis est ampliare justitiam_--that is, to make open and liberal justice. But in criminal matters this parity of reason, and these ana... | 60 | gutenberg | unknown |
twg_000012585668 | ever ought to be, shunned. Whatever is incident to a court of judicature, is necessary to the House of Commons, as judging in elections. But a power of making incapacities is not necessary to a court of judicature; therefore a power of making incapacities is not necessary to the House of Commons. Incapacity, declared b... | 60 | gutenberg | unknown |
twg_000012585669 | principles: first, an incapacity arising from the supposed incongruity of two duties in the commonwealth; secondly, an incapacity arising from unfitness by infirmity of nature, or the criminality of conduct. As to the first class of incapacities, they have no hardship annexed to them. The persons so incapacitated are p... | 60 | gutenberg | unknown |
twg_000012585670 | for the most part, the situation arises from their own choice. But as to the second, arising from an unfitness not fixed by nature, but superinduced by some positive acts, or arising from honourable motives, such as an occasional personal disability, of all things it ought to be defined by the fixed rule of law--what L... | 60 | gutenberg | unknown |
twg_000012585671 | Metwand of the Law, and not by the crooked cord of discretion. Whatever is general is better born. We take our common lot with men of the same description. But to be selected and marked out by a particular brand of unworthiness among our fellow-citizens, is a lot of all others the hardest to be borne: and consequently ... | 60 | gutenberg | unknown |
twg_000012585672 | all others that act which ought only to be trusted to the legislature, as not only legislative in its nature, but of all parts of legislature the most odious. The question is over, if this is shown not to be a legislative act. But what is very usual and natural, is to corrupt judicature into legislature. On this point ... | 60 | gutenberg | unknown |
twg_000012585673 | is proper to inquire whether a court of judicature, which decides without appeal, has it as a necessary incident of such judicature, that whatever it decides _de jure_ is law. Nobody will, I hope, assert this, because the direct consequence would be the entire extinction of the difference between true and false judgmen... | 60 | gutenberg | unknown |
twg_000012585674 | and not the law directs the judgment, it is impossible there could be such a thing as an illegal judgment given. But, instead of standing upon this ground, they introduce another question, wholly foreign to it, whether it ought not to be submitted to as if it were law. And then the question is, By the Constitution of t... | 60 | gutenberg | unknown |
twg_000012585675 | what degree of submission is due to the authoritative acts of a limited power? This question of submission, determine it how you please, has nothing to do in this discussion and in this House. Here it is not how long the people are bound to tolerate the illegality of our judgments, but whether we have a right to substi... | 60 | gutenberg | unknown |
twg_000012585676 | occasional opinion in the place of law, so as to deprive the citizen of his franchise. SPEECH ON THE POWERS OF JURIES IN PROSECUTIONS FOR LIBELS MARCH, 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 ... | 60 | gutenberg | unknown |
twg_000012585677 | to watch at once over the lawyer and the law; that there should he 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 to something, perhaps, the better ... | 60 | gutenberg | unknown |
twg_000012585678 | 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 h... | 60 | gutenberg | unknown |
twg_000012585679 | 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, ou... | 60 | gutenberg | unknown |
twg_000012585680 | 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... | 60 | gutenberg | unknown |
twg_000012585681 | the case shall guide us. We stand in a situation very honourable 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. . That the doctrine as held by | 60 | gutenberg | unknown |
twg_000012585682 | the courts is proper and constitutional, and therefore should not be altered. . That it is neither proper nor constitutional, but that it will be rendered worse by your interference. . That it is wrong, but that the only remedy is a bill of retrospect. . The opinion of those who bring in the bill; that the thing is wro... | 60 | gutenberg | unknown |
twg_000012585683 | 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, devia... | 60 | gutenberg | unknown |
twg_000012585684 | 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; out of this principle trial by juries h... | 60 | gutenberg | unknown |
twg_000012585685 | 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, acid virtue of the privilege, is taken out of it; that is, in the case of a trial by indictment or information for libel. ... | 60 | gutenberg | unknown |
twg_000012585686 | 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 in... | 60 | gutenberg | unknown |
twg_000012585687 | tendency the whole criminality consists, is the sole and exclusive province of the judge. Thus having reduced the jury to the cognisance 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 o... | 60 | gutenberg | unknown |
twg_000012585688 | 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, | 60 | gutenberg | unknown |
twg_000012585689 | 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 ... | 60 | gutenberg | unknown |
twg_000012585690 | 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 int... | 60 | gutenberg | unknown |
twg_000012585691 | 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 | 60 | gutenberg | unknown |
twg_000012585692 | criminal cases, where no such restraint is ordinarily put upon them. The act of homicide is _prima 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 neces... | 60 | gutenberg | unknown |
twg_000012585693 | the party guilty, and leave the rest to the judge; and that they have nothing to do with the word _felonice_ 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 | 60 | gutenberg | unknown |
twg_000012585694 | 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 the... | 60 | gutenberg | unknown |
twg_000012585695 | 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 | 60 | gutenberg | unknown |
twg_000012585696 | 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. . 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 | 60 | gutenberg | unknown |
twg_000012585697 | 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 co... | 60 | gutenberg | unknown |
twg_000012585698 | 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, "imm... | 60 | gutenberg | unknown |
twg_000012585699 | 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 VII., 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 und... | 60 | gutenberg | unknown |
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