Thoughts on the Present Discontents, and Speeches
by
Edmund Burke
Part 2 out of 3
private, rage through the kingdom with such a furious and unbridled
licence. All this while the peace of the nation must be shaken, to
ruin one libeller, and to tear from the populace a single favourite.
Nor is it that vice merely skulks in an obscure and contemptible
impunity. Does not the public behold with indignation, persons not
only generally scandalous in their lives, but the identical persons
who, by their society, their instruction, their example, their
encouragement, have drawn this man into the very faults which have
furnished the Cabal with a pretence for his persecution, loaded with
every kind of favour, honour, and distinction, which a Court can
bestow? Add but the crime of servility (the foedum crimem
servitutis) to every other crime, and the whole mass is immediately
transmuted into virtue, and becomes the just subject of reward and
honour. When therefore I reflect upon this method pursued by the
Cabal in distributing rewards and punishments, I must conclude that
Mr. Wilkes is the object of persecution, not on account of what he
has done in common with others who are the objects of reward, but
for that in which he differs from many of them: that he is pursued
for the spirited dispositions which are blended with his vices; for
his unconquerable firmness, for his resolute, indefatigable,
strenuous resistance against oppression.
In this case, therefore, it was not the man that was to be punished,
nor his faults that were to be discountenanced. Opposition to acts
of power was to be marked by a kind of civil proscription. The
popularity which should arise from such an opposition was to be
shown unable to protect it. The qualities by which court is made to
the people, were to render every fault inexpiable, and every error
irretrievable. The qualities by which court is made to power, were
to cover and to sanctify everything. He that will have a sure and
honourable seat, in the House of Commons, must take care how he
adventures to cultivate popular qualities; otherwise he may,
remember the old maxim, Breves et infaustos populi Romani amores.
If, therefore, a pursuit of popularity expose a man to greater
dangers than a disposition to servility, the principle which is the
life and soul of popular elections will perish out of the
Constitution.
It behoves the people of England to consider how the House of
Commons under the operation of these examples must of necessity be
constituted. On the side of the Court will be, all honours,
offices, emoluments; every sort of personal gratification to avarice
or vanity; and, what is of more moment to most gentlemen, the means
of growing, by innumerable petty services to individuals, into a
spreading interest in their country. On the other hand, let us
suppose a person unconnected with the Court, and in opposition to
its system. For his own person, no office, or emolument, or title;
no promotion ecclesiastical, or civil, or military, or naval, for
children, or brothers, or kindred. In vain an expiring interest in
a borough calls for offices, or small livings, for the children of
mayors, and aldermen, and capital burgesses. His court rival has
them all. He can do an infinite number of acts of generosity and
kindness, and even of public spirit. He can procure indemnity from
quarters. He can procure advantages in trade. He can get pardons
for offences. He can obtain a thousand favours, and avert a
thousand evils. He may, while he betrays every valuable interest of
the kingdom, be a benefactor, a patron, a father, a guardian angel,
to his borough. The unfortunate independent member has nothing to
offer, but harsh refusal, or pitiful excuse, or despondent
representation of a hopeless interest. Except from his private
fortune, in which he may be equalled, perhaps exceeded, by his Court
competitor, he has no way of showing any one good quality, or of
making a single friend. In the House, he votes for ever in a
dispirited minority. If he speaks, the doors are locked. A body of
loquacious placemen go out to tell the world, that all he aims at,
is to get into office. If he has not the talent of elocution, which
is the case of many as wise and knowing men as any in the House, he
is liable to all these inconveniences, without the eclat which
attends upon any tolerably successful exertion of eloquence. Can we
conceive a more discouraging post of duty than this? Strip it of
the poor reward of popularity; suffer even the excesses committed in
defence of the popular interest to become a ground for the majority
of that House to form a disqualification out of the line of the law,
and at their pleasure, attended not only with the loss of the
franchise, but with every kind of personal disgrace; if this shall
happen, the people of this kingdom may be assured that they cannot
be firmly or faithfully served by any man. It is out of the nature
of men and things that they should; and their presumption will be
equal to their folly, if they expect it. The power of the people,
within the laws, must show itself sufficient to protect every
representative in the animated performance of his duty, or that duty
cannot be performed. The House of Commons can never be a control on
other parts of Government, unless they are controlled themselves by
their constituents; and unless these constituents possess some right
in the choice of that House, which it is not in the power of that
House to take away. If they suffer this power of arbitrary
incapacitation to stand, they have utterly perverted every other
power of the House of Commons. The late proceeding, I will not say,
IS contrary to law; it MUST be so; for the power which is claimed
cannot, by any possibility, be a legal power in any limited member
of Government.
The power which they claim, of declaring incapacities, would not be
above the just claims of a final judicature, if they had not laid it
down as a leading principle, that they had no rule in the exercise
of this claim but their own DISCRETION. Not one of their abettors
has ever undertaken to assign the principle of unfitness, the
species or degree of delinquency, on which the House of Commons will
expel, nor the mode of proceeding upon it, nor the evidence upon
which it is established. The direct consequence of which is, that
the first franchise of an Englishman, and that on which all the rest
vitally depend, is to be forfeited for some offence which no man
knows, and which is to be proved by no known rule whatsoever of
legal evidence. This is so anomalous to our whole constitution,
that I will venture to say, the most trivial right, which the
subject claims, never was, nor can be, forfeited in such a manner.
The whole of their usurpation is established upon this method of
arguing. We do not make laws. No; we do not contend for this
power. We only declare law; and, as we are a tribunal both
competent and supreme, what we declare to be law becomes law,
although it should not have been so before. Thus the circumstance
of having no appeal from their jurisdiction is made to imply that
they have no rule in the exercise of it: the judgment does not
derive its validity from its conformity to the law; but
preposterously the law is made to attend on the judgment; and the
rule of the judgment is no other than the OCCASIONAL WILL OF THE
HOUSE. An arbitrary discretion leads, legality follows; which is
just the very nature and description of a legislative act.
This claim in their hands was no barren theory. It was pursued into
its utmost consequences; and a dangerous principle has begot a
correspondent practice. A systematic spirit has been shown upon
both sides. The electors of Middlesex chose a person whom the House
of Commons had voted incapable; and the House of Commons has taken
in a member whom the electors of Middlesex had not chosen. By a
construction on that legislative power which had been assumed, they
declared that the true legal sense of the country was contained in
the minority, on that occasion; and might, on a resistance to a vote
of incapacity, be contained in any minority.
When any construction of law goes against the spirit of the
privilege it was meant to support, it is a vicious construction. It
is material to us to be represented really and bona fide, and not in
forms, in types, and shadows, and fictions of law. The right of
election was not established merely as a MATTER OF FORM, to satisfy
some method and rule of technical reasoning; it was not a principle
which might substitute a Titius or a Maevius, a John Doe or Richard
Roe, in the place of a man specially chosen; not a principle which
was just as well satisfied with one man as with another. It is a
right, the effect of which is to give to the people that man, and
that man only, whom by their voices, actually, not constructively
given, they declare that they know, esteem, love, and trust. This
right is a matter within their own power of judging and feeling; not
an ens rationis and creature of law: nor can those devices, by
which anything else is substituted in the place of such an actual
choice, answer in the least degree the end of representation.
I know that the courts of law have made as strained constructions in
other cases. Such is the construction in common recoveries. The
method of construction which in that case gives to the persons in
remainder, for their security and representative, the door-keeper,
crier, or sweeper of the Court, or some other shadowy being without
substance or effect, is a fiction of a very coarse texture. This
was however suffered, by the acquiescence of the whole kingdom, for
ages; because the evasion of the old Statute of Westminster, which
authorised perpetuities, had more sense and utility than the law
which was evaded. But an attempt to turn the right of election into
such a farce and mockery as a fictitious fine and recovery, will, I
hope, have another fate; because the laws which give it are
infinitely dear to us, and the evasion is infinitely contemptible.
The people indeed have been told, that this power of discretionary
disqualification is vested in hands that they may trust, and who
will be sure not to abuse it to their prejudice. Until I find
something in this argument differing from that on which every mode
of despotism has been defended, I shall not be inclined to pay it
any great compliment. The people are satisfied to trust themselves
with the exercise of their own privileges, and do not desire this
kind intervention of the House of Commons to free them from the
burthen. They are certainly in the right. They ought not to trust
the House of Commons with a power over their franchises; because the
constitution, which placed two other co-ordinate powers to control
it, reposed no such confidence in that body. It were a folly well
deserving servitude for its punishment, to be full of confidence
where the laws are full of distrust; and to give to an House of
Commons, arrogating to its sole resolution the most harsh and odious
part of legislative authority, that degree of submission which is
due only to the Legislature itself.
When the House of Commons, in an endeavour to obtain new advantages
at the expense of the other orders of the State, for the benefits of
the COMMONS AT LARGE, have pursued strong measures; if it were not
just, it was at least natural, that the constituents should connive
at all their proceedings; because we were ourselves ultimately to
profit. But when this submission is urged to us, in a contest
between the representatives and ourselves, and where nothing can be
put into their scale which is not taken from ours, they fancy us to
be children when they tell us they are our representatives, our own
flesh and blood, and that all the stripes they give us are for our
good. The very desire of that body to have such a trust contrary to
law reposed in them, shows that they are not worthy of it. They
certainly will abuse it; because all men possessed of an
uncontrolled discretionary power leading to the aggrandisement and
profit of their own body have always abused it: and I see no
particular sanctity in our times, that is at all likely, by a
miraculous operation, to overrule the course of nature.
But we must purposely shut our eyes, if we consider this matter
merely as a contest between the House of Commons and the Electors.
The true contest is between the Electors of the Kingdom and the
Crown; the Crown acting by an instrumental House of Commons. It is
precisely the same, whether the Ministers of the Crown can
disqualify by a dependent House of Commons, or by a dependent court
of STAR CHAMBER, or by a dependent court of King's Bench. If once
Members of Parliament can be practically convinced that they do not
depend on the affection or opinion of the people for their political
being, they will give themselves over, without even an appearance of
reserve, to the influence of the Court.
Indeed, a Parliament unconnected with the people, is essential to a
Ministry unconnected with the people; and therefore those who saw
through what mighty difficulties the interior Ministry waded, and
the exterior were dragged, in this business, will conceive of what
prodigious importance, the new corps of KING'S MEN held this
principle of occasional and personal incapacitation, to the whole
body of their design.
When the House of Commons was thus made to consider itself as the
master of its constituents, there wanted but one thing to secure
that House against all possible future deviation towards popularity;
an unlimited fund of money to be laid out according to the pleasure
of the Court.
To complete the scheme of bringing our Court to a resemblance to the
neighbouring Monarchies, it was necessary, in effect, to destroy
those appropriations of revenue, which seem to limit the property,
as the other laws had done the powers, of the Crown. An opportunity
for this purpose was taken, upon an application to Parliament for
payment of the debts of the Civil List; which in 1769 had amounted
to 513,000 pounds. Such application had been made upon former
occasions; but to do it in the former manner would by no means
answer the present purpose.
Whenever the Crown had come to the Commons to desire a supply for
the discharging of debts due on the Civil List, it was always asked
and granted with one of the three following qualifications;
sometimes with all of them. Either it was stated that the revenue
had been diverted from its purposes by Parliament; or that those
duties had fallen short of the sum for which they were given by
Parliament, and that the intention of the Legislature had not been
fulfilled; or that the money required to discharge the Civil List
debt was to be raised chargeable on the Civil List duties. In the
reign of Queen Anne, the Crown was found in debt. The lessening and
granting away some part of her revenue by Parliament was alleged as
the cause of that debt, and pleaded as an equitable ground (such it
certainly was), for discharging it. It does not appear that the
duties which wore then applied to the ordinary Government produced
clear above 580,000 pounds a year; because, when they were
afterwards granted to George the First, 120,000 pounds was added, to
complete the whole to 700,000 pounds a year. Indeed it was then
asserted, and, I have no doubt, truly, that for many years the nett
produce did not amount to above 550,000 pounds. The Queen's
extraordinary charges were besides very considerable; equal, at
least, to any we have known in our time. The application to
Parliament was not for an absolute grant of money, but to empower
the Queen to raise it by borrowing upon the Civil List funds.
The Civil List debt was twice paid in the reign of George the First.
The money was granted upon the same plan which had been followed in
the reign of Queen Anne. The Civil List revenues were then
mortgaged for the sum to be raised, and stood charged with the
ransom of their own deliverance.
George the Second received an addition to his Civil List. Duties
were granted for the purpose of raising 800,000 pounds a year. It
was not until he had reigned nineteen years, and after the last
rebellion, that he called upon Parliament for a discharge of the
Civil List debt. The extraordinary charges brought on by the
rebellion, account fully for the necessities of the Crown. However,
the extraordinary charges of Government were not thought a ground
fit to be relied on. A deficiency of the Civil List duties for
several years before was stated as the principal, if not the sole,
ground on which an application to Parliament could be justified.
About this time the produce of these duties had fallen pretty low;
and even upon an average of the whole reign they never produced
800,000 pounds a year clear to the Treasury.
That Prince reigned fourteen years afterwards: not only no new
demands were made, but with so much good order were his revenues and
expenses regulated, that, although many parts of the establishment
of the Court were upon a larger and more liberal scale than they
have been since, there was a considerable sum in hand, on his
decease, amounting to about 170,000 pounds, applicable to the
service of the Civil List of his present Majesty. So that, if this
reign commenced with a greater charge than usual, there was enough,
and more than enough, abundantly to supply all the extraordinary
expense. That the Civil List should have been exceeded in the two
former reigns, especially in the reign of George the First, was not
at all surprising. His revenue was but 700,000 pounds annually; if
it ever produced so much clear. The prodigious and dangerous
disaffection to the very being of the establishment, and the cause
of a Pretender then powerfully abetted from abroad, produced many
demands of an extraordinary nature both abroad and at home. Much
management and great expenses were necessary. But the throne of no
Prince has stood upon more unshaken foundations than that of his
present Majesty.
To have exceeded the sum given for the Civil List, and to have
incurred a debt without special authority of Parliament, was, prima
facie, a criminal act: as such Ministers ought naturally rather to
have withdrawn it from the inspection, than to have exposed it to
the scrutiny, of Parliament. Certainly they ought, of themselves,
officially to have come armed with every sort of argument, which, by
explaining, could excuse a matter in itself of presumptive guilt.
But the terrors of the House of Commons are no longer for Ministers.
On the other hand, the peculiar character of the House of Commons,
as trustee of the public purse, would have led them to call with a
punctilious solicitude for every public account, and to have
examined into them with the most rigorous accuracy.
The capital use of an account is, that the reality of the charge,
the reason of incurring it, and the justice and necessity of
discharging it, should all appear antecedent to the payment. No man
ever pays first, and calls for his account afterwards; because he
would thereby let out of his hands the principal, and indeed only
effectual, means of compelling a full and fair one. But, in
national business, there is an additional reason for a previous
production of every account. It is a cheek, perhaps the only one,
upon a corrupt and prodigal use of public money. An account after
payment is to no rational purpose an account. However, the House of
Commons thought all these to be antiquated principles; they were of
opinion that the most Parliamentary way of proceeding was, to pay
first what the Court thought proper to demand, and to take its
chance for an examination into accounts at some time of greater
leisure.
The nation had settled 800,000 pounds a year on the Crown, as
sufficient for the purpose of its dignity, upon the estimate of its
own Ministers. When Ministers came to Parliament, and said that
this allowance had not been sufficient for the purpose, and that
they had incurred a debt of 500,000 pounds, would it not have been
natural for Parliament first to have asked, how, and by what means,
their appropriated allowance came to be insufficient? Would it not
have savoured of some attention to justice, to have seen in what
periods of Administration this debt had been originally incurred;
that they might discover, and if need were, animadvert on the
persons who were found the most culpable? To put their hands upon
such articles of expenditure as they thought improper or excessive,
and to secure, in future, against such misapplication or exceeding?
Accounts for any other purposes are but a matter of curiosity, and
no genuine Parliamentary object. All the accounts which could
answer any Parliamentary end were refused, or postponed by previous
questions. Every idea of prevention was rejected, as conveying an
improper suspicion of the Ministers of the Crown.
When every leading account had been refused, many others were
granted with sufficient facility.
But with great candour also, the House was informed, that hardly any
of them could be ready until the next session; some of them perhaps
not so soon. But, in order firmly to establish the precedent of
PAYMENT PREVIOUS TO ACCOUNT, and to form it into a settled rule of
the House, the god in the machine was brought down, nothing less
than the wonder-working LAW OF PARLIAMENT. It was alleged, that it
is the law of Parliament, when any demand comes from the Crown, that
the House must go immediately into the Committee of Supply; in which
Committee it was allowed, that the production and examination of
accounts would be quite proper and regular. It was therefore
carried that they should go into the Committee without delay, and
without accounts, in order to examine with great order and
regularity things that could not possibly come before them. After
this stroke of orderly and Parliamentary wit and humour, they went
into the Committee, and very generously voted the payment.
There was a circumstance in that debate too remarkable to be
overlooked. This debt of the Civil List was all along argued upon
the same footing as a debt of the State, contracted upon national
authority. Its payment was urged as equally pressing upon the
public faith and honour; and when the whole year's account was
stated, in what is called THE BUDGET, the Ministry valued themselves
on the payment of so much public debt, just as if they had
discharged 500,000 pounds of navy or exchequer bills. Though, in
truth, their payment, from the Sinking Fund, of debt which was never
contracted by Parliamentary authority, was, to all intents and
purposes, so much debt incurred. But such is the present notion of
public credit and payment of debt. No wonder that it produces such
effects.
Nor was the House at all more attentive to a provident security
against future, than it had been to a vindictive retrospect to past,
mismanagements. I should have thought indeed that a Ministerial
promise, during their own continuance in office, might have been
given, though this would have been but a poor security for the
public. Mr. Pelham gave such an assurance, and he kept his word.
But nothing was capable of extorting from our Ministers anything
which had the least resemblance to a promise of confining the
expenses of the Civil List within the limits which had been settled
by Parliament. This reserve of theirs I look upon to be equivalent
to the clearest declaration that they were resolved upon a contrary
course.
However, to put the matter beyond all doubt, in the Speech from the
Throne, after thanking Parliament for the relief so liberally
granted, the Ministers inform the two Houses that they will
ENDEAVOUR to confine the expenses of the Civil Government--within
what limits, think you? those which the law had prescribed? Not in
the least--"such limits as the HONOUR OF THE CROWN can possibly
admit."
Thus they established an arbitrary standard for that dignity which
Parliament had defined and limited to a legal standard. They gave
themselves, under the lax and indeterminate idea of the HONOUR OF
THE CROWN, a full loose for all manner of dissipation, and all
manner of corruption. This arbitrary standard they were not afraid
to hold out to both Houses; while an idle and inoperative Act of
Parliament, estimating the dignity of the Crown at 800,000 pounds,
and confining it to that sum, adds to the number of obsolete
statutes which load the shelves of libraries without any sort of
advantage to the people.
After this proceeding, I suppose that no man can be so weak as to
think that the Crown is limited to any settled allowance whatsoever.
For if the Ministry has 800,000 pounds a year by the law of the
land, and if by the law of Parliament all the debts which exceed it
are to be paid previous to the production of any account, I presume
that this is equivalent to an income with no other limits than the
abilities of the subject and the moderation of the Court--that is to
say, it is such in income as is possessed by every absolute Monarch
in Europe. It amounts, as a person of great ability said in the
debate, to an unlimited power of drawing upon the Sinking Fund. Its
effect on the public credit of this kingdom must be obvious; for in
vain is the Sinking Fund the great buttress of all the rest, if it
be in the power of the Ministry to resort to it for the payment of
any debts which they may choose to incur, under the name of the
Civil List, and through the medium of a committee, which thinks
itself obliged by law to vote supplies without any other account
than that of the more existence of the debt.
Five hundred thousand pounds is a serious sum. But it is nothing to
the prolific principle upon which the sum was voted--a principle
that may be well called, THE FRUITFUL MOTHER OF A HUNDRED MORE.
Neither is the damage to public credit of very great consequence
when compared with that which results to public morals and to the
safety of the Constitution, from the exhaustless mine of corruption
opened by the precedent, and to be wrought by the principle of the
late payment of the debts of the Civil List. The power of
discretionary disqualification by one law of Parliament, and the
necessity of paying every debt of the Civil List by another law of
Parliament, if suffered to pass unnoticed, must establish such a
fund of rewards and terrors as will make Parliament the best
appendage and support of arbitrary power that ever was invented by
the wit of man. This is felt. The quarrel is begun between the
Representatives and the People. The Court Faction have at length
committed them.
In such a strait the wisest may well be perplexed, and the boldest
staggered. The circumstances are in a great measure new. We have
hardly any landmarks from the wisdom of our ancestors to guide us.
At best we can only follow the spirit of their proceeding in other
cases. I know the diligence with which my observations on our
public disorders have been made. I am very sure of the integrity of
the motives on which they are published: I cannot be equally
confident in any plan for the absolute cure of those disorders, or
for their certain future prevention. My aim is to bring this matter
into more public discussion. Let the sagacity of others work upon
it. It is not uncommon for medical writers to describe histories of
diseases, very accurately, on whose cure they can say but very
little.
The first ideas which generally suggest themselves for the cure of
Parliamentary disorders are, to shorten the duration of Parliaments,
and to disqualify all, or a great number of placemen, from a seat in
the House of Commons. Whatever efficacy there may be in those
remedies, I am sure in the present state of things it is impossible
to apply them. A restoration of the right of free election is a
preliminary indispensable to every other reformation. What
alterations ought afterwards to be made in the constitution is a
matter of deep and difficult research.
If I wrote merely to please the popular palate, it would indeed be
as little troublesome to me as to another to extol these remedies,
so famous in speculation, but to which their greatest admirers have
never attempted seriously to resort in practice. I confess them,
that I have no sort of reliance upon either a Triennial Parliament
or a Place-bill. With regard to the former, perhaps, it might
rather serve to counteract than to promote the ends that are
proposed by it. To say nothing of the horrible disorders among the
people attending frequent elections, I should be fearful of
committing, every three years, the independent gentlemen of the
country into a contest with the Treasury. It is easy to see which
of the contending parties would be ruined first. Whoever has taken
a careful view of public proceedings, so as to endeavour to ground
his speculations on his experience, must have observed how
prodigiously greater the power of Ministry is in the first and last
session of a Parliament, than it is in the intermediate periods,
when Members sit a little on their seats. The persons of the
greatest Parliamentary experience, with whom I have conversed, did
constantly, in canvassing the fate of questions, allow something to
the Court side, upon account of the elections depending or imminent.
The evil complained of, if it exists in the present state of things,
would hardly be removed by a triennial Parliament: for, unless the
influence of Government in elections can be entirely taken away, the
more frequently they return, the more they will harass private
independence; the more generally men will be compelled to fly to the
settled systematic interest of Government, and to the resources of a
boundless Civil List. Certainly something may be done, and ought to
be done, towards lessening that influence in elections; and this
will be necessary upon a plan either of longer or shorter duration
of Parliament. But nothing can so perfectly remove the evil, as not
to render such contentions, foot frequently repeated, utterly
ruinous, first to independence of fortune, and then to independence
of spirit. As I am only giving an opinion on this point, and not at
all debating it in an adverse line, I hope I may be excused in
another observation. With great truth I may aver that I never
remember to have talked on this subject with any man much conversant
with public business who considered short Parliaments as a real
improvement of the Constitution. Gentlemen, warm in a popular
cause, are ready enough to attribute all the declarations of such
persons to corrupt motives. But the habit of affairs, if, on one
hand, it tends to corrupt the mind, furnishes it, on the other, with
the, means of better information. The authority of such persons
will always have some weight. It may stand upon a par with the
speculations of those who are less practised in business; and who,
with perhaps purer intentions, have not so effectual means of
judging. It is besides an effect of vulgar and puerile malignity to
imagine that every Statesman is of course corrupt: and that his
opinion, upon every constitutional point, is solely formed upon some
sinister interest.
The next favourite remedy is a Place-bill. The same principle
guides in both: I mean the opinion which is entertained by many of
the infallibility of laws and regulations, in the cure of public
distempers. Without being as unreasonably doubtful as many are
unwisely confident, I will only say, that this also is a matter very
well worthy of serious and mature reflection. It is not easy to
foresee what the effect would be of disconnecting with Parliament,
the greatest part of those who hold civil employments, and of such
mighty and important bodies as the military and naval
establishments. It were better, perhaps, that they should have a
corrupt interest in the forms of the constitution, than they should
have none at all. This is a question altogether different from the
disqualification of a particular description of Revenue Officers
from seats in Parliament; or, perhaps, of all the lower sorts of
them from votes in elections. In the former case, only the few are
affected; in the latter, only the inconsiderable. But a great
official, a great professional, a great military and naval interest,
all necessarily comprehending many people of the first weight,
ability, wealth, and spirit, has been gradually formed in the
kingdom. These new interests must be let into a share of
representation, else possibly they may be inclined to destroy those
institutions of which they are not permitted to partake. This is
not a thing to be trifled with: nor is it every well-meaning man
that is fit to put his hands to it. Many other serious
considerations occur. I do not open them here, because they are not
directly to my purpose; proposing only to give the reader some taste
of the difficulties that attend all capital changes in the
Constitution; just to hint the uncertainty, to say no worse, of
being able to prevent the Court, as long as it has the means of
influence abundantly in its power, from applying that influence to
Parliament; and perhaps, if the public method were precluded, of
doing it in some worse and more dangerous method. Underhand and
oblique ways would be studied. The science of evasion, already
tolerably understood, would then be brought to the greatest
perfection. It is no inconsiderable part of wisdom, to know how
much of an evil ought to be tolerated; lest, by attempting a degree
of purity impracticable in degenerate times and manners, instead of
cutting off the subsisting ill practices, new corruptions might be
produced for the concealment and security of the old. It were
better, undoubtedly, that no influence at all could affect the mind
of a Member of Parliament. But of all modes of influence, in my
opinion, a place under the Government is the least disgraceful to
the man who holds it, and by far the most safe to the country. I
would not shut out that sort of influence which is open and visible,
which is connected with the dignity and the service of the State,
when it is not in my power to prevent the influence of contracts, of
subscriptions, of direct bribery, and those innumerable methods of
clandestine corruption, which are abundantly in the hands of the
Court, and which will be applied as long as these means of
corruption, and the disposition to be corrupted, have existence
amongst us. Our Constitution stands on a nice equipoise, with steep
precipices and deep waters upon all sides of it. In removing it
from a dangerous leaning towards one side, there may be a risk of
oversetting it on the other. Every project of a material change in
a Government so complicated as ours, combined at the same time with
external circumstances still more complicated, is a matter full of
difficulties; in which a considerate man will not be too ready to
decide; a prudent man too ready to undertake; or an honest man too
ready to promise. They do not respect the public nor themselves,
who engage for more than they are sure that they ought to attempt,
or that they are able to perform. These are my sentiments, weak
perhaps, but honest and unbiassed; and submitted entirely to the
opinion of grave men, well affected to the constitution of their
country, and of experience in what may best promote or hurt it.
Indeed, in the situation in which we stand, with an immense revenue,
an enormous debt, mighty establishments, Government itself a great
banker and a great merchant, I see no other way for the preservation
of a decent attention to public interest in the Representatives, but
THE INTERPOSITION OF THE BODY OF THE PEOPLE ITSELF, whenever it
shall appear, by some flagrant and notorious act, by some capital
innovation, that these Representatives are going to over-leap the
fences of the law, and to introduce an arbitrary power. This
interposition is a most unpleasant remedy. But, if it be a legal
remedy, it is intended on some occasion to be used; to be used then
only, when it is evident that nothing else can hold the Constitution
to its true principles.
The distempers of Monarchy were the great subjects of apprehension
and redress, in the last century; in this, the distempers of
Parliament. It is not in Parliament alone that the remedy for
Parliamentary disorders can be completed; hardly, indeed, can it
begin there. Until a confidence in Government is re-established,
the people ought to be excited to a more strict and detailed
attention to the conduct of their Representatives. Standards, for
judging more systematically upon their conduct, ought to be settled
in the meetings of counties and corporations. Frequent and correct
lists of the voters in all important questions ought to be procured.
By such means something may be done. By such means it may appear
who those are, that, by an indiscriminate support of all
Administrations, have totally banished all integrity and confidence
out of public proceedings; have confounded the best men with the
worst; and weakened and dissolved, instead of strengthening and
compacting, the general frame of Government. If any person is more
concerned for government and order than for the liberties of his
country, even he is equally concerned to put an end to this course
of indiscriminate support. It is this blind and undistinguishing
support that feeds the spring of those very disorders, by which he
is frighted into the arms of the faction which contains in itself
the source of all disorders, by enfeebling all the visible and
regular authority of the State. The distemper is increased by his
injudicious and preposterous endeavours, or pretences, for the cure
of it.
An exterior Administration, chosen for its impotency, or after it is
chosen purposely rendered impotent, in order to be rendered
subservient, will not be obeyed. The laws themselves will not be
respected, when those who execute them are despised: and they will
be despised, when their power is not immediate from the Crown, or
natural in the kingdom. Never were Ministers better supported in
Parliament. Parliamentary support comes and goes with office,
totally regardless of the man, or the merit. Is Government
strengthened? It grows weaker and weaker. The popular torrent
gains upon it every hour. Let us learn from our experience. It is
not support that is wanting to Government, but reformation. When
Ministry rests upon public opinion, it is not indeed built upon a
rock of adamant; it has, however, some stability. But when it
stands upon private humour, its structure is of stubble, and its
foundation is on quicksand. I repeat it again--He that supports
every Administration, subverts all Government. The reason is this.
The whole business in which a Court usually takes an interest goes
on at present equally well, in whatever hands, whether high or low,
wise or foolish, scandalous or reputable; there is nothing,
therefore, to hold it firm to any one body of men, or to any one
consistent scheme of politics. Nothing interposes to prevent the
full operation of all the caprices and all the passions of a Court
upon the servants of the public. The system of Administration is
open to continual shocks and changes, upon the principles of the
meanest cabal, and the most contemptible intrigue. Nothing can be
solid and permanent. All good men at length fly with horror from
such a service. Men of rank and ability, with the spirit which
ought to animate such men in a free state, while they decline the
jurisdiction of dark cabal on their actions and their fortunes,
will, for both, cheerfully put themselves upon their country. They
will trust an inquisitive and distinguishing Parliament; because it
does inquire, and does distinguish. If they act well, they know
that, in such a Parliament, they will be supported against any
intrigue; if they act ill, they know that no intrigue can protect
them. This situation, however awful, is honourable. But in one
hour, and in the self-same Assembly, without any assigned or
assignable cause, to be precipitated from the highest authority to
the most marked neglect, possibly into the greatest peril of life
and reputation, is a situation full of danger, and destitute of
honour. It will be shunned equally by every man of prudence, and
every man of spirit.
Such are the consequences of the division of Court from the
Administration; and of the division of public men among themselves.
By the former of these, lawful Government is undone; by the latter,
all opposition to lawless power is rendered impotent. Government
may in a great measure be restored, if any considerable bodies of
men have honesty and resolution enough never to accept
Administration, unless this garrison of KING'S MEN, which is
stationed, as in a citadel, to control and enslave it, be entirely
broken and disbanded, and every work they have thrown up be levelled
with the ground. The disposition of public men to keep this corps
together, and to act under it, or to co-operate with it, is a
touchstone by which every Administration ought in future to be
tried. There has not been one which has not sufficiently
experienced the utter incompatibility of that faction with the
public peace, and with all the ends of good Government; since, if
they opposed it, they soon lost every power of serving the Crown; if
they submitted to it they lost all the esteem of their country.
Until Ministers give to the public a full proof of their entire
alienation from that system, however plausible their pretences, we
may be sure they are more intent on the emoluments than the duties
of office. If they refuse to give this proof, we know of what stuff
they are made. In this particular, it ought to be the electors'
business to look to their Representatives. The electors ought to
esteem it no less culpable in their Member to give a single vote in
Parliament to such an Administration, than to take an office under
it; to endure it, than to act in it. The notorious infidelity and
versatility of Members of Parliament, in their opinions of men and
things, ought in a particular manner to be considered by the
electors in the inquiry which is recommended to them. This is one
of the principal holdings of that destructive system which has
endeavoured to unhinge all the virtuous, honourable, and useful
connections in the kingdom.
This cabal has, with great success, propagated a doctrine which
serves for a colour to those acts of treachery; and whilst it
receives any degree of countenance, it will be utterly senseless to
look for a vigorous opposition to the Court Party. The doctrine is
this: That all political connections are in their nature factious,
and as such ought to be dissipated and destroyed; and that the rule
for forming Administrations is mere personal ability, rated by the
judgment of this cabal upon it, and taken by drafts from every
division and denomination of public men. This decree was solemnly
promulgated by the head of the Court corps, the Earl of Bute
himself, in a speech which he made, in the year 1766, against the
then Administration, the only Administration which, he has ever been
known directly and publicly to oppose.
It is indeed in no way wonderful, that such persons should make such
declarations. That connection and faction are equivalent terms, is
an opinion which has been carefully inculcated at all times by
unconstitutional Statesmen. The reason is evident. Whilst men are
linked together, they easily and speedily communicate the alarm of
an evil design. They are enabled to fathom it with common counsel,
and to oppose it with united strength. Whereas, when they lie
dispersed, without concert, order, or discipline, communication is
uncertain, counsel difficult, and resistance impracticable. Where
men are not acquainted with each other's principles, nor experienced
in each other's talents, nor at all practised in their mutual
habitudes and dispositions by joint efforts in business; no personal
confidence, no friendship, no common interest, subsisting among
them; it is evidently impossible that they can act a public part
with uniformity, perseverance, or efficacy. In a connection, the
most inconsiderable man, by adding to the weight of the whole, has
his value, and his use; out of it, the greatest talents are wholly
unserviceable to the public. No man, who is not inflamed by
vainglory into enthusiasm, can flatter himself that his single,
unsupported, desultory, unsystematic endeavours, are of power to
defeat, the subtle designs and united cabals of ambitious citizens.
When bad men combine, the good must associate; else they will fall,
one by one, an unpitied sacrifice in a contemptible struggle.
It is not enough in a situation of trust in the commonwealth, that a
man means well to his country; it is not enough that in his single
person he never did an evil act, but always voted according to his
conscience, and even harangued against every design which he
apprehended to he prejudicial to the interests of his country. This
innoxious and ineffectual character, that seems formed upon a plan
of apology and disculpation, falls miserably short of the mark of
public duty. That duty demands and requires, that what is right
should not only be made known, but made prevalent; that what is evil
should not only be detected, but defeated. When the public man
omits to put himself in a situation of doing his duty with effect,
it is an omission that frustrates the purposes of his trust almost
as much as if he had formally betrayed it. It is surely no very
rational account of a man's life that he has always acted right; but
has taken special care to act in such a manner that his endeavours
could not possibly be productive of any consequence.
I do not wonder that the behaviour of many parties should have made
persons of tender and scrupulous virtue somewhat out of humour with
all sorts of connection in politics. I admit that people frequently
acquire in such confederacies a narrow, bigoted, and proscriptive
spirit; that they are apt to sink the idea of the general good in
this circumscribed and partial interest. But, where duty renders a
critical situation a necessary one, it is our business to keep free
from the evils attendant upon it, and not to fly from the situation
itself. If a fortress is seated in an unwholesome air, an officer
of the garrison is obliged to be attentive to his health, but he
must not desert his station. Every profession, not excepting the
glorious one of a soldier, or the sacred one of a priest, is liable
to its own particular vices; which, however, form no argument
against those ways of life; nor are the vices themselves inevitable
to every individual in those professions. Of such a nature are
connections in politics; essentially necessary for the full
performance of our public duty, accidentally liable to degenerate
into faction. Commonwealths are made of families, free
Commonwealths of parties also; and we may as well affirm, that our
natural regards and ties of blood tend inevitably to make men bad
citizens, as that the bonds of our party weaken those by which we
are held to our country.
Some legislators went so far as to make neutrality in party a crime
against the State. I do not know whether this might not have been
rather to overstrain the principle. Certain it is, the best
patriots in the greatest commonwealths have always commanded and
promoted such connections. Idem sentire de republica, was with them
a principal ground of friendship and attachment; nor do I know any
other capable of forming firmer, dearer, more pleasing, more
honourable, and more virtuous habitudes. The Romans carried this
principle a great way. Even the holding of offices together, the
disposition of which arose from chance, not selection, gave rise to
a relation which continued for life. It was called necessitudo
sortis; and it was looked upon with a sacred reverence. Breaches of
any of these kinds of civil relation were considered as acts of the
most distinguished turpitude. The whole people was distributed into
political societies, in which they acted in support of such
interests in the State as they severally affected. For it was then
thought no crime, to endeavour by every honest means to advance to
superiority and power those of your own sentiments and opinions.
This wise people was far from imagining that those connections had
no tie, and obliged to no duty; but that men might quit them without
shame, upon every call of interest. They believed private honour to
be the great foundation of public trust; that friendship was no mean
step towards patriotism; that he who, in the common intercourse of
life, showed he regarded somebody besides himself, when he came to
act in a public situation, might probably consult some other
interest than his own. Never may we become plus sages que les
sages, as the French comedian has happily expressed it--wiser than
all the wise and good men who have lived before us. It was their
wish, to see public and private virtues, not dissonant and jarring,
and mutually destructive, but harmoniously combined, growing out of
one another in a noble and orderly gradation, reciprocally
supporting and supported. In one of the most fortunate periods of
our history this country was governed by a connection; I mean the
great connection of Whigs in the reign of Queen Anne. 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 estimation was not highly
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 bard essays of practised friendship
and 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
moderation was properly shown in patiently bearing 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 bound together by common 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 talker. They were not afraid that they should 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 impossible to
conceive that 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 proper means 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 State. As this power 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 themselves to be 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 distinguished from the mean and
interested struggle 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 wisdom and narrow morals that their
maxims have a plausible 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
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. 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 proceeds upon his own
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
certain 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
critical moment when they lose their 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 without end. 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 in that 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 more
towards the further 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
opposition to your own 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 the measures which arise in the course 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 founded, and which necessarily
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-chosen
friendship, will frequently bring on an acquiescence 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 connection at all is to me utterly
incomprehensible. Of what 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 questions, in the discussion 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 others must be either an angel 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 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 to incur enmities. To have 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 energy
than 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 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 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, into 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 obligation. Early activity may prevent late and fruitless
violence. 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
Faction, whilst it 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 by the hearty concurrence of the people at
large, 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 endeavour to keep that 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 the only proper foundation of their power, they must
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, with
which it has been, for 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, they will be willing
and able to teach 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 his choice of them, upon such principles, 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
allowances for 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
civil violence; or until they sink into the dead repose of
despotism.
SPEECH ON THE MIDDLESEX ELECTION
FEBRUARY, 1771
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 privileges. It
may be almost impossible to reconcile them.
Carry the principle 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 not choose 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.
What bounds shall be set to the freedom 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 dignity, they undermine the 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 we are deluded
by ministerial, cant. 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, in which they 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 rules and principles of 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 full tide into the 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, esteemed a very wise
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 some
bound, to plant 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
usurping 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, on
discretionary grounds, is a 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 juridical act. A legislative act has no reference
to 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. But
a judge, a person exercising 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 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
first property of law; 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 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 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? and, if incapacity is voted to be inherent 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 know not the origin of the House 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 incapacity simply by 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 give a right
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 of eligibility, it
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,
inapplicable, and arises from 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 principles, and the example 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 analogies, ever
have been, and 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 by whatever authority, stands upon two
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
paid by one dignity for what they abandon in another, and, 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 Lord Coke calls
the Golden 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 is
of 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
it 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 judgments. For,
if the judgment makes the law, 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 this country, 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 substitute our 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, 1771
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 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
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 honour, 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 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. 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; out
of this principle 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, acid virtue
of the privilege, is taken out of it; that is, in the case of a
trial by indictment or information for 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
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 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 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 necessarily
find 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 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
unfavourable, 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. cap. 34. 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 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 under the indefinite class of misdemeanours. For
the trial of misdemeanours 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 humours, 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 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.
But admit it were true that the great mass of the electors were too
vast an object for court influence to grasp, or extend to, and that
in despair they must abandon it; he must be very ignorant of the
state of every popular interest, who does not know that in all the
corporations, all the open boroughs--indeed, in every district of
the kingdom--there is some leading man, some agitator, some wealthy
merchant, or considerable manufacturer, some active attorney, some
popular preacher, some money-lender, &c., &c., who is followed by
the whole flock. This is the style of all free countries.
- Multum in Fabia valet hic, valet ille Velina;
Cuilibet hic fasces dabit eripietque curule.
These spirits, each of which informs and governs his own little orb,
are neither so many, nor so little powerful, nor so incorruptible,
but that a Minister may, as he does frequently, find means of
gaining them, and through them all their followers. To establish,
therefore, a very general influence among electors will no more be
found an impracticable project, than to gain an undue influence over
members of parliament. Therefore I am apprehensive that this bill,
though it shifts the place of the disorder, does by no means relieve
the Constitution. I went through almost every contested election in
the beginning of this parliament, and acted as a manager in very
many of them: by which, though at a school of pretty severe and
ragged discipline, I came to have some degree of instruction
concerning the means by which parliamentary interests are in general
procured and supported.
Theory, I know, would suppose, that every general election is to the
representative a day of judgment, in which he appears before his
constituents to account for the use of the talent with which they
entrusted him, and of the improvement he had made of it for the
public advantage. It would be so, if every corruptible
representative were to find an enlightened and incorruptible
constituent. But the practice and knowledge of the world will not
suffer us to be ignorant, that the Constitution on paper is one
thing, and in fact and experience is another. We must know that the
candidate, instead of trusting at his election to the testimony of
his behaviour in parliament, must bring the testimony of a large sum
of money, the capacity of liberal expense in entertainments, the
power of serving and obliging the rulers of corporations, of winning
over the popular leaders of political clubs, associations, and
neighbourhoods. It is ten thousand times more necessary to show
himself a man of power, than a man of integrity, in almost all the
elections with which I have been acquainted. Elections, therefore,
become a matter of heavy expense; and if contests are frequent, to
many they will become a matter of an expense totally ruinous, which
no fortunes can bear; but least of all the landed fortunes,
encumbered as they often, indeed as they mostly are, with debts,
with portions, with jointures; and tied up in the hands of the
possessor by the limitations of settlement. It is a material, it is
in my opinion a lasting, consideration, in all the questions
concerning election. Let no one think the charges of election a
trivial matter.
The charge, therefore, of elections ought never to be lost sight of,
in a question concerning their frequency, because the grand object
you seek is independence. Independence of mind will ever be more or
less influenced by independence of fortune; and if, every three
years, the exhausting sluices of entertainments, drinkings, open
houses, to say nothing of bribery, are to be periodically drawn up
and renewed--if government favours, for which now, in some shape or
other, the whole race of men are candidates, are to be called for
upon every occasion, I see that private fortunes will be washed
away, and every, even to the least, trace of independence, borne
down by the torrent. I do not seriously think this Constitution,
even to the wrecks of it, could survive five triennial elections.
If you are to fight the battle, you must put on the armour of the
Ministry; you must call in the public, to the aid of private, money.
The expense of the last election has been computed (and I am
persuaded that it has not been overrated) at 1,500,000 pounds; three
shillings in the pound more on the Land Tax. About the close of the
last Parliament, and the beginning of this, several agents for
boroughs went about, and I remember well that it was in every one of
their mouths--"Sir, your election will cost you three thousand
pounds, if you are independent; but if the Ministry supports you, it
may be done for two, and perhaps for less;" and, indeed, the thing
spoke itself. Where a living was to be got for one, a commission in
the army for another, a post in the navy for a third, and Custom-
house offices scattered about without measure or number, who doubts
but money may be saved? The Treasury may even add money; but,
indeed, it is superfluous. A gentleman of two thousand a year, who
meets another of the same fortune, fights with equal arms; but if to
one of the candidates you add a thousand a year in places for
himself, and a power of giving away as much among others, one must,
or there is no truth in arithmetical demonstration, ruin his
adversary, if he is to meet him and to fight with him every third
year. It will be said, I do not allow for the operation of
character; but I do; and I know it will have its weight in most
elections; perhaps it may be decisive in some. But there are few in
which it will prevent great expenses.
The destruction of independent fortunes will be the consequence on
the part of the candidate. What will be the consequence of
triennial corruption, triennial drunkenness, triennial idleness,
triennial law-suits, litigations, prosecutions, triennial frenzy; of
society dissolved, industry interrupted, ruined; of those personal
hatreds that will never be suffered to soften; those animosities and
feuds, which will be rendered immortal; those quarrels, which are
never to be appeased; morals vitiated and gangrened to the vitals?
I think no stable and useful advantages were ever made by the money
got at elections by the voter, but all he gets is doubly lost to the
public; it is money given to diminish the general stock of the
community, which is the industry of the subject. I am sure that it
is a good while before he or his family settle again to their
business. Their heads will never cool; the temptations of elections
will be for ever glittering before their eyes. They will all grow
politicians; every one, quitting his business, will choose to enrich
himself by his vote. They will take the gauging-rod; new places
will be made for them; they will run to the Custom-house quay, their
looms and ploughs will be deserted.
So was Rome destroyed by the disorders of continual elections,
though those of Rome were sober disorders. They had nothing but
faction, bribery, bread, and stage plays to debauch them. We have
the inflammation of liquor superadded, a fury hotter than any of
them. There the contest was only between citizen and citizen; here
you have the contests of ambitious citizens on one side, supported
by the Crown, to oppose to the efforts (let it be so) of private and
unsupported ambition on the other. Yet Rome was destroyed by the
frequency and charge of elections, and the monstrous expense of an
unremitted courtship to the people. I think, therefore, the
independent candidate and elector may each be destroyed by it, the
whole body of the community be an infinite sufferer, and a vicious
Ministry the only gainer. Gentlemen, I know, feel the weight of
this argument; they agree that this would be the consequence of more
frequent elections, if things were to continue as they are. But
they think the greatness and frequency of the evil would itself be a
remedy for it; that, sitting but for a short time, the member would
not find it worth while to make such vast expenses, while the fear
of their constituents will hold them the more effectually to their
duty.
To this I answer, that experience is full against them. This is no
new thing; we have had triennial parliaments; at no period of time
were seats more eagerly contested. The expenses of elections ran
higher, taking the state of all charges, than they do now. The
expense of entertainments was such, that an Act, equally severe and
ineffectual, was made against it; every monument of the time bears
witness of the expense, and most of the Acts against corruption in
elections were then made; all the writers talked of it and lamented
it. Will any one think that a corporation will be contented with a
bowl of punch, or a piece of beef the less, because elections are
every three, instead of every seven years? Will they change their
Back to Full Books
|