tionary power in punishing them, is the idea of criminal equity; which is in truth a monster in jurisprudence. It signifies nothing whether a court for this purpose be a committee of council, or a House of Commons, or a House of Lords; the liberty of the subject will be equally subverted by it. The true end and purpose of that House of Parliament, which entertains such a jurisdiction, will be destroyed by it.
I will not believe, what no other man living believes, that Mr. Wilkes was punished for the indecency of his publications, or the impiety of his ransacked closet. If he had fallen in a common slaughter of libellers and blasphemers, I could well believe that nothing more was meant than was pretended. But when I see, that, for years together, full as impious, and perhaps more dangerous writings to religion, and virtue, and order, have not been punished, nor their authors discountenanced; that the most audacious libels on royal majesty have passed without notice; that the most treasonable invectives against the laws, liberties, and constitution of the country, have not met with the slightest animadversion; I must consider this as a shocking and shameless pretence. Never did an envenomed scurrility against everything sacred and civil, public and private, rage through the kingdom with such a furious and unbridled license. All this while the peace of the nation must be shaken, to ruin one libeller, and to tear from the populace a single favorite.
Nor is it that vice merely skulks in an obscure and contemptible impunity. Does not the public behold with indignation, persons not only generally scandalous in their lives, but the identical persons who, by their society, their instruction, their example, their
encouragement, have drawn this man into the very faults which have furnished the cabal with a pretence for his persecution, loaded with every kind of favor, honor, and distinction, which a court can bestow? Add but the crime of servility (the foedum crimen servitutis) to every other crime, and the whole mass is immediately transmuted into virtue, and becomes the just subject of reward and honor. When therefore I reflect upon this method pursued by the cabal in distributing rewards and punishments, I must conclude that Mr. Wilkes is the object of persecution, not on account of what he has done in common with others who are the objects of reward, but for that in which he differs from many of them: that he is pursued for the spirited dispositions which are blended with his vices; for his unconquerable firmness, for his resolute, indefatigable, strenuous resistance against oppression.
In this case, therefore, it was not the man that was to be punished, nor his faults that were to be discountenanced. Opposition to acts of power was to be marked by a kind of civil proscription. The popularity which should arise from such an opposition was to be shown unable to protect it. The qualities by which court is made to the people, were to render every fault inexpiable, and every error irretrievable. The qualities by which court is made to power, were to cover and to sanctify everything. He that will have a sure and honorable seat in the House of Commons must take care how he adventures to cultivate popular qualities; otherwise he may remember the old maxim, Breves et infaustos populi Romani amores. If, therefore, a pursuit of popularity expose a man to greater dangers than a disposition to servility, the
principle which is the life and soul of popular elections will perish out of the constitution.
It behoves the people of England to consider how the House of Commons, under the operation of these examples, must of necessity be constituted. On the side of the court will be, all honors, offices, emoluments; every sort of personal gratification to avarice or vanity; and, what is of more moment to most gentlemen, the means of growing, by innumerable petty services to individuals, into a spreading interest in their country. On the other hand, let us suppose a person unconnected with the court, and in opposition to its system. For his own person, no office, or emolument, or title; no promotion, ecclesiastical, or civil, or military, or naval, for children, or brothers, or kindred. In vain an expiring interest in a borough calls for offices, or small livings, for the children of mayors, and aldermen, and capital burgesses. His court rival has them all. He can do an infinite number of acts of generosity and kindness, and even of public spirit. He can procure indemnity from quarters. He can procure advantages in trade. He can get pardons for offences. He can obtain a thousand favors, and avert a thousand evils. He may, while he betrays every valuable interest of the kingdom, be a benefactor, a patron, a father, a guardian angel to his borough. The unfortunate independent member has nothing to offer, but harsh refusal, or pitiful excuse, or despondent representation of a hopeless interest. Except from his private fortune, in which he may be equalled, perhaps exceeded, by his court competitor, he has no way of showing any one good quality, or of making a single friend. In the House, he votes forever in a dispirited minority. If he speaks, the doors
are locked. A body of loquacious placemen go out to tell the world that all he aims at is to get into office. If he has not the talent of elocution, which is the case of many as wise and knowing men as any in the House, he is liable to all these inconveniences, without the éclat which attends upon any tolerably successful exertion of eloquence. Can we conceive a more discouraging post of duty than this? Strip it of the poor reward of popularity; suffer even the excesses committed in defence of the popular interest to become a ground for the majority of that House to form a disqualification out of the line of the law, and at their pleasure, attended not only with the loss of the franchise, but with every kind of personal disgrace.—If this shall happen, the people of this kingdom may be assured that they cannot be firmly or faithfully served by any man. It is out of the nature of men and things that they should; and their presumption will be equal to their folly if they expect it. The power of the people, within the laws, must show itself sufficient to protect every representative in the animated performance of his duty, or that duty cannot be performed. The House of Commons can never be a control on other parts of government, unless they are controlled themselves by their constituents; and unless those constituents possess some right in the choice of that House, which it is not in the power of that House to take away. If they suffer this power of arbitrary incapacitation to stand, they have utterly perverted every other power of the House of Commons. The late proceeding I will not say is contrary to law; it must be so; for the power which is claimed cannot, by any possibility, be a legal power in any limited member of government.
The power which they claim, of declaring incapacities, would not be above the just claims of a final judicature, if they had not laid it down as a leading principle, that they had no rule in the exercise of this claim, but their own discretion. Not one of their abettors has ever undertaken to assign the principle of unfitness, the species or degree of delinquency, on which the House of Commons will expel, nor the mode of proceeding upon it, nor the evidence upon which it is established. The direct consequence of which is, that the first franchise of an Englishman, and that on which all the rest vitally depend, is to be forfeited for some offence which no man knows, and which is to be proved by no known rule whatsoever of legal evidence. This is so anomalous to our whole constitution, that I will venture to say, the most trivial right, which the subject claims, never was, nor can be, forfeited in such a manner.
The whole of their usurpation is established upon this method of arguing. We do not make laws. No; we do not contend for this power. We only declare law; and as we are a tribunal both competent and supreme, what we declare to be law becomes law, although it should not have been so before. Thus the circumstance of having no appeal from their jurisdiction is made to imply that they have no rule in the exercise of it: the judgment does not derive its validity from its conformity to the law; but preposterously the law is made to attend on the judgment; and the rule of the judgment is no other than the occasional will of the House. An arbitrary discretion leads, legality follows; which is just the very nature and description of a legislative act.