Likely enough: but who
are the cool men who have disclaimed them?
are the cool men who have disclaimed them?
Edmund Burke
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 Churclh are concurrent with a design to subvert the States
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 adher-:ence 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.
? ? ? ? 48 SPEECH ON' THE PETITION OF THE UNITARIANS.
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 opinlions; 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
? ? ? ? SPEECH ON THE. PETITION OF. THE UNITARIANS:. 49
deny, and disown as their c0onclusions. : 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;
VOL. VII. 4
? ? ? ? 50 SPEECH ON THE PETITION OF THE UNITARIANS.
we should analyze all society. Dangers by being
despised grow great; so they do by absurd provision
against them. Stulti est dixisse, Non putaram. Whether all 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:
? ? ? ? SPEECH ON THE PETITION OF THE UNITARIANS. 51
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 assassiniation 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:
Quale portentum neque militaris
Daunia in latis alit esculetis,
Nec Jubme tellus generat, leonum
Arida nutrix.
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 poi
? ? ? ? 52 SPiEECH;I ON THE PETITION'OF THE UNITARIANS. soned:. tauiits 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 im.
portance 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, wheth-,er 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 cooperate with them for the destruction
of our Constitution. On the solution of these two
? ? ? ? SPEECH O. N THEE PETITION- OF THE UNITARIANS. 53
questions, joined with our opinion of tle 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 cad-ere potest in hominem constantemr 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: -
Nec coiere pares: alter vergentibus annisIn senium, longoquc togae tranquillior usu,
? ? ? ? 54 SPEECH ON THE PETITION OF THE UNITARIAiNS. Dedidicit jam pace ducem;. . .
Nec reparare novas vires, multumque priori Credere fortunie: stat magni nominis umbra. *
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 prop-, erty, 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
* Lucan, I. 129 to 135.
? ? ? ? SPEECH ON THE PETITION OF THE UNITARIANS. 55
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
? ? ? ? 56 SPEECH'ON THE PETITION: O:F THE, UNITARIANS. ' 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 iilstantly 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 iof an ungrounded alarm is to make people insensible to the approach of a real
peril. Quakerism'' is strict,: methodical, in its nature" highly airistocraticai, 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 overscrupulous 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 Establishmeint, 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
? ? ? ? SPEECH'ON T. HE: PETITION OF THE' UNITARIANS. 57 sworn at tle- altar like Hannibal. The war is with the Establishmeniit 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 menl.
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
iatmost of their meaning, you must first consider Whether;youl wish your Church Establishment to be destroyed. If you do, you had much better do it now
ini 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, ceque ac patriam, diligite, colite, fovete.
? ? ? ? 58 SPEECH ON THE PETITION OF THE UNITARIANS.
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. "
? ? ? ? SPEECH
ON
THE MOTION MADE IN THE HOUSE OF' COMMONS,. FEBRUARY 7, 1771, RELATIVE TO
THE MIDDLESEX ELECTION.
? ? ? ? NO T E.
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' amajority of 167 against 103.
? ? ? ? SPE E. C. H. :
JN 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
? ? ? ? 62 SPEECH ON THE MIDDLESEX ELECTION.
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, es
? ? ? ? SPEECH ON THE MIDDLESEX ELECTION. 63
teemed 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 legisla*tive 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
tile law-maker:. he, and he alone, is above the law.
? ? ? ? 64 SPEECH'ON THE MIDDLESEX ELECTION.
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 anid
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
? ? ? ? SPEECH ON THE MIDDLESEX ELECTION. 65
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 ac~
quiring 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
Comnrons.
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 mdxims that VOL. VII. 5
? ? ? ? 66 SPEECH -ON THE MIDDLESEX ELECTION.
govern these two provinces of law, that are eternally
separate. Undoubtedly -tlhe 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 dd: 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 nest 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
? ? ? ? - SPEECH ON THE MIDDLESEX -ELECTION. 67 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 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 is dce 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.
? ? ? ? S PEE CH
ON
A BILL FOR SHORTENING THE DURATION OF PARLIAMENTS.
MAY 8, 1780.
? ? ? ? S PEE CH.
IT is always to be lIamented, when men are driven. to search into "the':foundations of the commonwealth. It is- certainly' necessary to- resort to the
theory' of ycaur' government, whenever you propose
any'alteration in the frame of it, -- whether that
alteration: means the revival of some' former anti-. quated! and forsaken- constitution of state, or the introduction of some newimprovement in the commonwealth. : The object of our deliberation is, to promote the good purposes for which elections have been instituted, anid 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. iwould
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
? ? ? ? 72 SPEECH ON THE DURATION OF PARLIAMENTS. . 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.
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 adher-:ence 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.
? ? ? ? 48 SPEECH ON' THE PETITION OF THE UNITARIANS.
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 opinlions; 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
? ? ? ? SPEECH ON THE. PETITION OF. THE UNITARIANS:. 49
deny, and disown as their c0onclusions. : 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;
VOL. VII. 4
? ? ? ? 50 SPEECH ON THE PETITION OF THE UNITARIANS.
we should analyze all society. Dangers by being
despised grow great; so they do by absurd provision
against them. Stulti est dixisse, Non putaram. Whether all 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:
? ? ? ? SPEECH ON THE PETITION OF THE UNITARIANS. 51
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 assassiniation 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:
Quale portentum neque militaris
Daunia in latis alit esculetis,
Nec Jubme tellus generat, leonum
Arida nutrix.
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 poi
? ? ? ? 52 SPiEECH;I ON THE PETITION'OF THE UNITARIANS. soned:. tauiits 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 im.
portance 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, wheth-,er 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 cooperate with them for the destruction
of our Constitution. On the solution of these two
? ? ? ? SPEECH O. N THEE PETITION- OF THE UNITARIANS. 53
questions, joined with our opinion of tle 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 cad-ere potest in hominem constantemr 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: -
Nec coiere pares: alter vergentibus annisIn senium, longoquc togae tranquillior usu,
? ? ? ? 54 SPEECH ON THE PETITION OF THE UNITARIAiNS. Dedidicit jam pace ducem;. . .
Nec reparare novas vires, multumque priori Credere fortunie: stat magni nominis umbra. *
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 prop-, erty, 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
* Lucan, I. 129 to 135.
? ? ? ? SPEECH ON THE PETITION OF THE UNITARIANS. 55
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
? ? ? ? 56 SPEECH'ON THE PETITION: O:F THE, UNITARIANS. ' 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 iilstantly 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 iof an ungrounded alarm is to make people insensible to the approach of a real
peril. Quakerism'' is strict,: methodical, in its nature" highly airistocraticai, 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 overscrupulous 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 Establishmeint, 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
? ? ? ? SPEECH'ON T. HE: PETITION OF THE' UNITARIANS. 57 sworn at tle- altar like Hannibal. The war is with the Establishmeniit 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 menl.
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
iatmost of their meaning, you must first consider Whether;youl wish your Church Establishment to be destroyed. If you do, you had much better do it now
ini 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, ceque ac patriam, diligite, colite, fovete.
? ? ? ? 58 SPEECH ON THE PETITION OF THE UNITARIANS.
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. "
? ? ? ? SPEECH
ON
THE MOTION MADE IN THE HOUSE OF' COMMONS,. FEBRUARY 7, 1771, RELATIVE TO
THE MIDDLESEX ELECTION.
? ? ? ? NO T E.
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' amajority of 167 against 103.
? ? ? ? SPE E. C. H. :
JN 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
? ? ? ? 62 SPEECH ON THE MIDDLESEX ELECTION.
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, es
? ? ? ? SPEECH ON THE MIDDLESEX ELECTION. 63
teemed 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 legisla*tive 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
tile law-maker:. he, and he alone, is above the law.
? ? ? ? 64 SPEECH'ON THE MIDDLESEX ELECTION.
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 anid
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
? ? ? ? SPEECH ON THE MIDDLESEX ELECTION. 65
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 ac~
quiring 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
Comnrons.
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 mdxims that VOL. VII. 5
? ? ? ? 66 SPEECH -ON THE MIDDLESEX ELECTION.
govern these two provinces of law, that are eternally
separate. Undoubtedly -tlhe 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 dd: 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 nest 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
? ? ? ? - SPEECH ON THE MIDDLESEX -ELECTION. 67 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 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 is dce 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.
? ? ? ? S PEE CH
ON
A BILL FOR SHORTENING THE DURATION OF PARLIAMENTS.
MAY 8, 1780.
? ? ? ? S PEE CH.
IT is always to be lIamented, when men are driven. to search into "the':foundations of the commonwealth. It is- certainly' necessary to- resort to the
theory' of ycaur' government, whenever you propose
any'alteration in the frame of it, -- whether that
alteration: means the revival of some' former anti-. quated! and forsaken- constitution of state, or the introduction of some newimprovement in the commonwealth. : The object of our deliberation is, to promote the good purposes for which elections have been instituted, anid 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. iwould
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
? ? ? ? 72 SPEECH ON THE DURATION OF PARLIAMENTS. . 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.
