I never govern myself, no rational man ever did govern himself, by abstractions and universals. I do not put abstract ideas wholly out of any question; because I well know that under that name I should dismiss principles, and that without the guide and light of sound, well-understood principles, all reasonings in politics, as in everything else, would be only a confused jumble of particular facts and details, without the means of drawing out any sort of theoretical or practical conclusion. A statesman differs from a professor in an university: the latter has only the general view of society; the former, the statesman, has a number of circumstances to combine with those general ideas, and to take into his consideration. Circumstances are infinite, are infinitely combined, are variable and transient: he who does not take them into consideration is not erroneous, but stark mad; dat operam ut cum ratione insaniat; he is metaphysically mad. A statesman, never losing sight of principles, is to be guided by circumstances; and judging contrary to the exigencies of the moment, he may ruin his country forever.
I go on this ground,—that government, representing the society, has a general superintending control over all the actions and over all the publicly propagated doctrines of men, without which it never could provide adequately for all the wants of society: but then it is to use this power with an equitable discretion, the only bond of sovereign authority. For it is not, perhaps, so much by the assumption of unlawful powers as by the unwise or unwarrantable use of those which are most legal, that governments oppose their true end and object: for there is such a thing as tyranny, as well as usurpation. You can hardly state to me a case to which legislature is the most confessedly competent, in which, if the rules of benignity and prudence are not observed, the most mischievous and oppressive things may not be done. So that, after all, it is a moral and virtuous discretion, and not any abstract theory of right, which keeps governments faithful to their ends. Crude, unconnected truths are in the world of practice what falsehoods are in theory. A reasonable, prudent, provident, and moderate coercion may be a means of preventing acts of extreme ferocity and rigor: for by propagating excessive and extravagant doctrines, such extravagant disorders take place as require the most perilous and fierce corrections to oppose them.
It is not morally true that we are bound to establish in every country that form of religion which in our minds is most agreeable to truth, and conduces most to the eternal happiness of mankind. In the same manner, it is not true that we are, against the conviction of our own judgment, to establish a system of opinions and practices directly contrary to those ends, only because some majority of the people, told by the head, may prefer it. No conscientious man would willingly establish what he knew to be false and mischievous in religion, or in anything else. No wise man, on the contrary, would tyrannically set up his own sense so as to reprobate that of the great prevailing body of the community, and pay no regard to the established opinions and prejudices of mankind, or refuse to them the means of securing a religious instruction suitable to these prejudices. A great deal depends on the state in which you find men....
An alliance between Church and State in a Christian commonwealth is, in my opinion, an idle and a fanciful speculation. An alliance is between two things that are in their nature distinct and independent, such as between two sovereign states. But in a Christian commonwealth the Church and the State are one and the, same thing, being different integral parts of the same whole. For the Church has been always divided into two parts, the clergy and the laity,—of which the laity is as much an essential integral part, and has as much its duties and privileges, as the clerical member, and in the rule, order, and government of the Church has its share. Religion is so far, in my opinion, from being out of the province or the duty of a Christian magistrate, that it is, and it ought to be, not only his care, but the principal thing in his care; because it is one of the great bonds of human society, and its object the supreme good, the ultimate end and object of man himself. The magistrate, who is a man, and charged with the concerns of men, and to whom very specially nothing human is remote and indifferent, has a right and a duty to watch over it with an unceasing vigilance, to protect, to promote, to forward it by every rational, just, and prudent means. It is principally his duty to prevent the abuses which grow out of every strong and efficient principle that actuates the human mind. As religion is one of the bonds of society, he ought not to suffer it to be made the pretext of destroying its peace, order, liberty, and its security. Above all, he ought strictly to look to it, when men begin to form new combinations, to be distinguished by new names, and especially when they mingle a political system with their religious opinions, true or false, plausible or implausible.
It is the interest, and it is the duty, and because it is the interest and the duty, it is the right of government to attend much to opinions; because, as opinions soon combine with passions, even when they do not produce them, they have much influence on actions. Factions are formed upon opinions, which factions become in effect bodies corporate in the state; nay, factions generate opinions, in order to become a centre of union, and to furnish watchwords to parties; and this may make it expedient for government to forbid things in themselves innocent and neutral. I am not fond of defining with precision what the ultimate rights of the sovereign supreme power, in providing for the safety of the commonwealth, may be, or may not extend to. It will signify very little what my notions or what their own notions on the subject may be; because, according to the exigence, they will take, in fact, the steps which seem to them necessary for the preservation of the whole: for as self-preservation in individuals is the first law of Nature, the same will prevail in societies, who will, right or wrong, make that an object paramount to all other rights whatsoever. There are ways and means by which a good man would not even save the commonwealth.... All things founded on the idea of danger ought in a great degree to be temporary. All policy is very suspicious that sacrifices any part to the ideal good of the whole. The object of the state is (as far as may be) the happiness of the whole. Whatever makes multitudes of men utterly miserable can never answer that object; indeed, it contradicts it wholly and entirely; and the happiness or misery of mankind, estimated by their feelings and sentiments, and not by any theories of their rights, is, and ought to be, the standard for the conduct of legislators towards the people. This naturally and necessarily conducts us to the peculiar and characteristic situation of a people, and to a knowledge of their opinions, prejudices, habits, and all the circumstances that diversify and color life. The first question a good statesman would ask himself, therefore, would be, How and in what circumstances do you find the society? and to act upon them.
To the other laws relating to other sects I have nothing to say: I only look to the petition which has given rise to this proceeding. I confine myself to that, because in my opinion its merits have little or no relation to that of the other laws which the right honorable gentleman has with so much ability blended with it. With the Catholics, with the Presbyterians, with the Anabaptists, with the Independents, with the Quakers, I have nothing at all to do. They are in possession,—a great title in all human affairs. The tenor and spirit of our laws, whether they were restraining or whether they were relaxing, have hitherto taken another course. The spirit of our laws has applied their penalty or their relief to the supposed abuse to be repressed or the grievance to be relieved; and the provision for a Catholic and a Quaker has been totally different, according to his exigence: you did not give a Catholic liberty to be freed from an oath, or a Quaker power of saying mass with impunity. You have done this, because you never have laid it down as an universal proposition, as a maxim, that nothing relative to religion was your concern, but the direct contrary; and therefore you have always examined whether there was a grievance. It has been so at all times: the legislature, whether right or wrong, went no other way to work but by circumstances, times, and necessities. My mind marches the same road; my school is the practice and usage of Parliament.
Old religious factions are volcanoes burnt out; on the lava and ashes and squalid scoriæ of old eruptions grow the peaceful olive, the cheering vine, and the sustaining corn. Such was the first, such the second condition of Vesuvius. But when a now fire bursts out, a face of desolations comes on, not to be rectified in ages. Therefore, when men come before us, and rise up like an exhalation from the ground, they come in a questionable shape, and we must exorcise them, and try whether their intents be wicked or charitable, whether they bring airs from heaven or blasts from hell. This is the first time that our records of Parliament have heard, or our experience or history given us an account of any religious congregation or association known by the name which these petitioners have assumed. We are now to see by what people, of what character, and under what temporary circumstances, this business is brought before you. We are to see whether there be any and what mixture of political dogmas and political practices with their religious tenets, of what nature they are, and how far they are at present practically separable from them. This faction (the authors of the petition) are not confined to a theological sect, but are also a political faction. 1st, As theological, we are to show that they do not aim at the quiet enjoyment of their own liberty, but are associated for the express purpose of proselytism. In proof of this first proposition, read their primary association. 2nd, That their purpose of proselytism is to collect a multitude sufficient by force and violence to overturn the Church. In proof of the second proposition, see the letter of Priestley to Mr. Pitt, and extracts from his works. 3rd, That the designs against the Church are concurrent with a design to subvert the State. In proof of the third proposition, read the advertisement of the Unitarian Society for celebrating the 14th of July. 4th, On what model they intend to build,—that it is the French. In proof of the fourth proposition, read the correspondence of the Revolution Society with the clubs of France, read Priestley's adherence to their opinions. 5th, What the French is with regard to religious toleration, and with regard to, 1. Religion,—2. Civil happiness,—3. Virtue, order, and real liberty,—4. Commercial opulence,—5. National defence. In proof of the fifth proposition, read the representation of the French minister of the Home Department, and the report of the committee upon it.
Formerly, when the superiority of two parties contending for dogmas and an establishment was the question, we knew in such a contest the whole of the evil. We knew, for instance, that Calvinism would prevail according to the Westminster Catechism with regard to tenets. We knew that Presbytery would prevail in church government. But we do not know what opinions would prevail, if the present Dissenters should become masters. They will not tell us their present opinions; and one principle of modern Dissent is, not to discover them. Next, as their religion, is in a continual fluctuation, and is so by principle and in profession, it is impossible for us to know what it will be. If religion only related to the individual, and was a question between God and the conscience, it would not be wise, nor in my opinion equitable, for human authority to step in. But when religion is embodied into faction, and factions have objects to pursue, it will and must, more or less, become a question of power between them. If even, when embodied into congregations, they limited their principle to their own congregations, and were satisfied themselves to abstain from what they thought unlawful, it would be cruel, in my opinion, to molest them in that tenet, and a consequent practice. But we know that they not only entertain these opinions, but entertain them with a zeal for propagating them by force, and employing the power of law and place to destroy establishments, if ever they should come to power sufficient to effect their purpose: that is, in other words, they declare they would persecute the heads of our Church; and the question is, whether you should keep them within the bounds of toleration, or subject yourself to their persecution.
A bad and very censurable practice it is to warp doubtful and ambiguous expressions to a perverted sense, which makes the charge not the crime of others, but the construction of your own malice; nor is it allowed to draw conclusions from allowed premises, which those who lay down the premises utterly deny, and disown as their conclusions. For this, though it may possibly be good logic, cannot by any possibility whatsoever be a fair or charitable representation of any man or any set of men. It may show the erroneous nature of principles, but it argues nothing as to dispositions and intentions. Far be such a mode from me! A mean and unworthy jealousy it would be to do anything upon, the mere speculative apprehension of what men will do. But let us pass by our opinions concerning the danger of the Church. What do the gentlemen themselves think of that danger? They from, whom the danger is apprehended, what do they declare to be their own designs? What do they conceive to be their own forces? And what do they proclaim to be their means? Their designs they declare to be to destroy the Established Church; and not to set up a new one of their own. See Priestley. If they should find the State stick to the Church, the question is, whether they love the constitution in State so well as that they would not destroy the constitution of the State in order to destroy that of the Church. Most certainly they do not.
The foundations on which obedience to governments is founded are not to be constantly discussed. That we are here supposes the discussion already made and the dispute settled. We must assume the rights of what represents the public to control the individual, to make his will and his acts to submit to their will, until some intolerable grievance shall make us know that it does not answer its end, and will submit neither to reformation nor restraint. Otherwise we should dispute all the points of morality, before we can punish a murderer, robber, and adulterer; we should analyze all society. Dangers by being despised grow great; so they do by absurd provision against them. Stulti est dixisse, Non putâram. Whether an early discovery of evil designs, an early declaration, and an early precaution against them be more wise than to stifle all inquiry about them, for fear they should declare themselves more early than otherwise they would, and therefore precipitate the evil,—all this depends on the reality of the danger. Is it only an unbookish jealousy, as Shakspeare calls it? It is a question of fact. Does a design against the Constitution of this country exist? If it does, and if it is carried on with increasing vigor and activity by a restless faction, and if it receives countenance by the most ardent and enthusiastic applauses of its object in the great council of this kingdom, by men of the first parts which this kingdom produces, perhaps by the first it has ever produced, can I think that there is no danger? If there be danger, must there be no precaution at all against it? If you ask whether I think the danger urgent and immediate, I answer, Thank God, I do not. The body of the people is yet sound, the Constitution is in their hearts, while wicked men are endeavoring to put another into their heads. But if I see the very same beginnings which have commonly ended in great calamities, I ought to act as if they might produce the very same effects. Early and provident fear is the mother of safety; because in that state of things the mind is firm and collected, and the judgment unembarrassed. But when the fear and the evil feared come on together, and press at once upon us, deliberation itself is ruinous, which saves upon all other occasions; because, when perils are instant, it delays decision: the man is in a flutter, and in a hurry, and his judgment is gone,—as the judgment of the deposed King of France and his ministers was gone, if the latter did not premeditately betray him. He was just come from his usual amusement of hunting, when the head of the column of treason and assassination was arrived at his house. Let not the king, let not the Prince of Wales, be surprised in this manner. Let not both Houses of Parliament be led in triumph along with him, and have law dictated to them, by the Constitutional, the Revolution, and the Unitarian Societies. These insect reptiles, whilst they go on only caballing and toasting, only fill us with disgust; if they get above their natural size, and increase the quantity whilst they keep the quality of their venom, they become objects of the greatest terror. A spider in his natural size is only a spider, ugly and loathsome; and his flimsy net is only fit for catching flies. But, good God! suppose a spider as large as an ox, and that he spread cables about us, all the wilds of Africa would not produce anything so dreadful:—
Think of them who dare menace in the way they do in their present state, what would they do, if they had power commensurate to their malice? God forbid I ever should have a despotic master!—but if I must, my choice is made. I will have Louis the Sixteenth rather than Monsieur Bailly, or Brissot, or Chabot,—rather George the Third, or George the Fourth, than. Dr. Priestley, or Dr. Kippis,—persons who would not load a tyrannous power by the poisoned taunts of a vulgar, low-bred insolence. I hope we have still spirit enough to keep us from the one or the other. The contumelies of tyranny are the worst parts of it.
But if the danger be existing in reality, and silently maturing itself to our destruction, what! is it not better to take treason unprepared than that treason should come by surprise upon us and take us unprepared? If we must have a conflict, let us have it with all our forces fresh about us, with our government in full function and full strength, our troops uncorrupted, our revenues in the legal hands, our arsenals filled and possessed by government,—and not wait till the conspirators met to commemorate the 14th of July shall seize on the Tower of London and the magazines it contains, murder the governor, and the mayor of London, seize upon the king's person, drive out the House of Lords, occupy your gallery, and thence, as from an high tribunal, dictate to you. The degree of danger is not only from the circumstances which threaten, but from the value of the objects which are threatened. A small danger menacing an inestimable object is of more importance than the greatest perils which regard one that is indifferent to us. The whole question of the danger depends upon facts. The first fact is, whether those who sway in France at present confine themselves to the regulation of their internal affairs,—or whether upon system they nourish cabals in all other countries, to extend their power by producing revolutions similar to their own. 2. The next is, whether we have any cabals formed or forming within these kingdoms, to coöperate with them for the destruction of our Constitution. On the solution of these two questions, joined with our opinion of the value of the object to be affected by their machinations, the justness of our alarm and the necessity of our vigilance must depend. Every private conspiracy, every open attack upon the laws, is dangerous. One robbery is an alarm to all property; else I am sure we exceed measure in our punishment. As robberies increase in number and audacity, the alarm increases. These wretches are at war with us upon principle. They hold this government to be an usurpation. See the language of the Department.
The whole question is on the reality of the danger. Is it such a danger as would justify that fear qui cadere potest in hominem constantem et non metuentem? This is the fear which the principles of jurisprudence declare to be a lawful and justifiable fear. When a man threatens my life openly and publicly, I may demand from him securities of the peace. When every act of a man's life manifests such a design stronger than by words, even though he does not make such a declaration, I am justified in being on my guard. They are of opinion that they are already one fifth of the kingdom. If so, their force is naturally not contemptible. To say that in all contests the decision will of course be in favor of the greater number is by no means true in fact. For, first, the greater number is generally composed of men of sluggish tempers, slow to act, and unwilling to attempt, and, by being in possession, are so disposed to peace that they are unwilling to take early and vigorous measures for their defence, and they are almost always caught unprepared:—
A smaller number, more expedite, awakened, active, vigorous, and courageous, who make amends for what they want in weight by their superabundance of velocity, will create an acting power of the greatest possible strength. When men are furiously and fanatically fond of an object, they will prefer it, as is well known, to their own peace, to their own property, and to their own lives: and can there be a doubt, in such a case, that they would prefer it to the peace of their country? Is it to be doubted, that, if they have not strength enough at home, they will call in foreign force to aid them?
Would you deny them what is reasonable, for fear they should? Certainly not. It would be barbarous to pretend to look into the minds of men. I would go further: it would not be just even to trace consequences from principles which, though evident to me, were denied by them. Let them disband as a faction, and let them act as individuals, and when I see them with no other views than to enjoy their own conscience in peace, I, for one, shall most cheerfully vote for their relief.
A tender conscience, of all things, ought to be tenderly handled; for if you do not, you injure not only the conscience, but the whole moral frame and constitution is injured, recurring at times to remorse, and seeking refuge only in making the conscience callous. But the conscience of faction,—the conscience of sedition,—the conscience of conspiracy, war, and confusion....
Whether anything be proper to be denied, which is right in itself, because it may lead to the demand of others which it is improper to grant? Abstractedly speaking, there can be no doubt that this question ought to be decided in the negative. But as no moral questions are ever abstract questions, this, before I judge upon any abstract proposition, must be embodied in circumstances; for, since things are right or wrong, morally speaking, only by their relation and connection with other things, this very question of what it is politically right to grant depends upon this relation to its effects. It is the direct office of wisdom to look to the consequences of the acts we do: if it be not this, it is worth nothing, it is out of place and of function, and a downright fool is as capable of government as Charles Fox. A man desires a sword: why should he be refused? A sword is a means of defence, and defence is the natural right of man,—nay, the first of all his rights, and which comprehends them all. But if I know that the sword desired is to be employed to cut my own throat, common sense, and my own self-defence, dictate to me to keep out of his hands this natural right of the sword. But whether this denial be wise or foolish, just or unjust, prudent or cowardly, depends entirely on the state of the man's means. A man may have very ill dispositions, and yet be so very weak as to make all precaution foolish. See whether this be the case of these Dissenters, as to their designs, as to their means, numbers, activity, zeal, foreign assistance.
The first question, to be decided, when we talk of the Church's being in danger from any particular measure, is, whether the danger to the Church is a public evil: for to those who think that the national Church Establishment is itself a national grievance, to desire them to forward or to resist any measure, upon account of its conducing to the safety of the Church or averting its danger, would be to the last degree absurd. If you have reason to think thus of it, take the reformation instantly into your own hands, whilst you are yet cool, and can do it in measure and proportion, and not under the influence of election tests and popular fury. But here I assume that by far the greater number of those who compose the House are of opinion that this national Church Establishment is a great national benefit, a great public blessing, and that its existence or its non-existence of course is a thing by no means indifferent to the public welfare: then to them its danger or its safety must enter deeply into every question which has a relation to it. It is not because ungrounded alarms have been given that there never can exist a real danger: perhaps the worst effect of an ungrounded alarm is to make people insensible to the approach of a real peril. Quakerism is strict, methodical, in its nature highly aristocratical, and so regular that it has brought the whole community to the condition of one family; but it does not actually interfere with the government. The principle of your petitioners is no passive conscientious dissent, on account of an over-scrupulous habit of mind: the dissent on their part is fundamental, goes to the very root; and it is at issue not upon this rite or that ceremony, on this or that school opinion, but upon this one question of an Establishment, as unchristian, unlawful, contrary to the Gospel and to natural right, Popish and idolatrous. These are the principles violently and fanatically held and pursued,—taught to their children, who are sworn at the altar like Hannibal. The war is with the Establishment itself,—no quarter, no compromise. As a party, they are infinitely mischievous: see the declarations of Priestley and Price,—declarations, you will say, of hot men. Likely enough: but who are the cool men who have disclaimed them? Not one,—no, not one. Which of them has ever told you that they do not mean to destroy the Church, if ever it should be in their power? Which of them has told you that this would not be the first and favorite use of any power they should get? Not one,—no, not one. Declarations of hot men! The danger is thence, that they are under the conduct of hot men: falsos in amore odia non fingere.
They say they are well affected to the State, and mean only to destroy the Church. If this be the utmost of their meaning, you must first consider whether you wish your Church Establishment to be destroyed. If you do, you had much better do it now in temper, in a grave, moderate, and parliamentary way. But if you think otherwise, and that you think it to be an invaluable blessing, a way fully sufficient to nourish a manly, rational, solid, and at the same time humble piety,—if you find it well fitted to the frame and pattern of your civil constitution,—if you find it a barrier against fanaticism, infidelity, and atheism,—if you find that it furnishes support to the human mind in the afflictions and distresses of the world, consolation in sickness, pain, poverty, and death,—if it dignifies our nature with the hope of immortality, leaves inquiry free, whilst it preserves an authority to teach, where authority only can teach, communia altaria, æque ac patriam, diligite, colite, fovete.
In the discussion of this subject which took place in the year 1790, Mr. Burke declared his intention, in case the motion for repealing the Test Acts had been agreed to, of proposing to substitute the following test in the room of what was intended to be repealed:—
"I, A.B., do, in the presence of God, sincerely profess and believe that a religious establishment in this state is not contrary to the law of God, or disagreeable to the law of Nature, or to the true principles of the Christian religion, or that it is noxious to the community; and I do sincerely promise and engage, before God, that I never will, by any conspiracy, contrivance, or political device whatever, attempt, or abet others in any attempt, to subvert the constitution of the Church of England, as the same is now by law established, and that I will not employ any power or influence which I may derive from any office corporate, or any other office which I hold or shall hold under his Majesty, his heirs and successors, to destroy and subvert the same, or to cause members to be elected into any corporation or into Parliament, give my vote in the election of any member or members of Parliament, or into any office, for or on account of their attachment to any other or different religious opinions or establishments, or with any hope that they may promote the same to the prejudice of the Established Church, but will dutifully and peaceably content myself with my private liberty of conscience, as the same is allowed by law. So help me God."
[1] Lucan, I. 129 to 135.
The motion supported in the following Speech, which was for leave to bring in a bill to ascertain the rights of the electors in respect to the eligibility of persons to serve in Parliament, was rejected by a majority of 167 against 103.
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 an 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 clamor? 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 advise 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. This 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 were 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 honorable 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 borne. 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 winch 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 is de jure 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 should 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....
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 favor, 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 incumbered 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 intention, 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 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 manœuvres 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 overreached, 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 neighbors aggrandized, and themselves poor and virtuous without that éclat or dignity which attends men in higher situations.
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.