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?
