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 impannelled 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.

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 honourable mover goes to the first; and undoubtedly his motives are fair and honourable; 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

This bill was brought into the house of commons by Mr. Fox, June 1, 1781; and rejected on the second reading, without a division.

engagment. 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 commonwelth before á 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 labour 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 honour and esteem. To suffer the grave animadversion and censorial rebuke of the honourable 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 ties 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 prostitute woman, or a daughter, who married a dishonourable 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 honour, 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.

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 splendour, 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 œconomy, as the little that is given is entirely thrown away. Such an impoverished and degraded

This motion was made the 17th February, 1772, and rejected on a division; the numbers being, ayes 117, noes 141.

clergy in quiet times could never execute their duty, and in time of disorder would infinitely aggravate the public confusions.

That the property of the church is a favoured 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 land, 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 tythes 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 tythed. Prescription could not aid him, for prescription can only attach on a supposed bonû 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 tythes do, which are a charge on land; therefore, though it had been made inalienable, it ought perhaps to be subject to limitation. It might bona fide be held.

But first it was not originally inalienable no, not by the canon law, until the restraining act of the 11th of Elizabeth. But the great revolution of the dissolution of monasteries by the 31st H. 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 bishops' lands.

So far as to lands.

As to tythes, they are not things in their own nature subject to be barred by prescription upon the general principle. But tythes and church lands, by the statutes of Henry VIII. and the 11th Elizabeth 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, tythes became property to a mixed party; by passing from the king, they became absolutely lay property; the partition-wall was broken down, and tythes and church possession became no longer synonymous terms. No man therefore might become a fair purchaser of tythes and of exemption from tythes.

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 tythes might come to a layman, land in the hands of a layman might be also tythefree. So that there was an object, which a layman might become seised of equitably and bona 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 seised of church lands-2. Of tythes-3. Of exemption from tythes; 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 any thing against the church, her dignities, her honours, 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 antipriestcraft, 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 taxgatherer;-such a maintenance as is compatible with the civil prosperity and improvement of their country.

Ir is generally observed that no species of writing is so difficult as the dramatic. It must indeed appear so, were we to consider it

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.

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 borrow ing 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 antient 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 labour 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 VOL. II.-31

manners of our fellow men. The other is as it were foreign and extrinsical. Neither indeed can any thing 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 is 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 favourable 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 every thing which it can influence. *

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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