I remember an old scholastic aphorism, which says that “the man who lives wholly detached from others must be either an angel or a devil.” When I see in any of these detached gentlemen of our times the angelic purity, power, and beneficence, I shall admit them to be angels. In the meantime, we are born only to be men. We shall do enough if we form ourselves to be good ones. It is therefore our business carefully to cultivate in our minds, to rear to the most perfect vigour and maturity, every sort of generous and honest feeling that belongs to our nature. To bring the, dispositions that are lovely in private life into the service and conduct of the commonwealth; so to be patriots, as not to forget we are gentlemen. To cultivate friendships, and to incur enmities. To have both strong, but both selected: in the one, to be placable; in the other, immovable. To model our principles to our duties and our situation. To be fully persuaded that all virtue which is impracticable is spurious, and rather to run the risk of falling into faults in a course which leads us to act with effect and energy than to loiter out our days without blame and without use. Public life is a situation of power and energy; he trespasses against his duty who sleeps upon his watch, as well as he that goes over to the enemy.
There is, however, a time for all things. It is not every conjuncture which calls with equal force upon the activity of honest men; but critical exigences now and then arise, and I am mistaken if this be not one of them. Men will see the necessity of honest combination, but they may see it when it is too late. They may embody when it will be ruinous to themselves, and of no advantage to the country; when, for want of such a timely union as may enable them to oppose in favour of the laws, with the laws on their side, they may at length find themselves under the necessity of conspiring, instead of consulting. The law, for which they stand, may become a weapon in the hands of its bitterest enemies; and they will be cast, at length, into that miserable alternative, between slavery and civil confusion, which no good man can look upon without horror, an alternative in which it is impossible he should take either part with a conscience perfectly at repose. To keep that situation of guilt and remorse at the utmost distance is, therefore, our first obligation. Early activity may prevent late and fruitless violence. As yet we work in the light. The scheme of the enemies of public tranquillity has disarranged, it has not destroyed us.
If the reader believes that there really exists such a Faction as I have described, a Faction ruling by the private inclinations of a Court, against the general sense of the people; and that this Faction, whilst it pursues a scheme for undermining all the foundations of our freedom, weakens (for the present at least) all the powers of executory Government, rendering us abroad contemptible, and at home distracted; he will believe, also, that nothing but a firm combination of public men against this body, and that, too, supported by the hearty concurrence of the people at large, can possibly get the better of it. The people will see the necessity of restoring public men to an attention to the public opinion, and of restoring the Constitution to its original principles. Above all, they will endeavour to keep the House of Commons from assuming a character which does not belong to it. They will endeavour to keep that House, for its existence for its powers, and its privileges, as independent of every other, and as dependent upon themselves, as possible. This servitude is to a House of Commons (like obedience to the Divine law), “perfect freedom.” For if they once quit this natural, rational, and liberal obedience, having deserted the only proper foundation of their power, they must seek a support in an abject and unnatural dependence somewhere else. When, through the medium of this just connection with their constituents, the genuine dignity of the House of Commons is restored, it will begin to think of casting from it, with scorn, as badges of servility, all the false ornaments of illegal power, with which it has been, for some time, disgraced. It will begin to think of its old office of CONTROL. It will not suffer that last of evils to predominate in the country; men without popular confidence, public opinion, natural connection, or natural trust, invested with all the powers of Government.
When they have learned this lesson themselves, they will be willing and able to teach the Court, that it is the true interest of the Prince to have but one Administration; and that one composed of those who recommend themselves to their Sovereign through the opinion of their country, and not by their obsequiousness to a favourite. Such men will serve their Sovereign with affection and fidelity; because his choice of them, upon such principles, is a compliment to their virtue. They will be able to serve him effectually; because they will add the weight of the country to the force of the executory power. They will be able to serve their King with dignity; because they will never abuse his name to the gratification of their private spleen or avarice. This, with allowances for human frailty, may probably be the general character of a Ministry, which thinks itself accountable to the House of Commons, when the House of Commons thinks itself accountable to its constituents. If other ideas should prevail, things must remain in their present confusion, until they are hurried into all the rage of civil violence; or until they sink into the dead repose of despotism.
SPEECH ON THE MIDDLESEX ELECTION
February, 1771
Mr. Speaker,—In every complicated Constitution (and every free Constitution is complicated) cases will arise, when the several orders of the State will clash with one another, and disputes will arise about the limits of their several rights and privileges. It may be almost impossible to reconcile them.
Carry the principle on by which you expelled Mr. Wilkes, there is not a man in the House, hardly a man in the nation, who may not be disqualified. That this House should have no power of expulsion is a hard saying. That this House should have a general discretionary power of disqualification is a dangerous saying. That the people should not choose their own representative, is a saying that shakes the Constitution. That this House should name the representative, is a saying which, followed by practice, subverts the constitution. They have the right of electing, you have a right of expelling; they of choosing, you of judging, and only of judging, of the choice. What bounds shall be set to the freedom of that choice? Their right is prior to ours, we all originate there. They are the mortal enemies of the House of Commons, who would persuade them to think or to act as if they were a self-originated magistracy, independent of the people and unconnected with their opinions and feelings. Under a pretence of exalting the dignity, they undermine the very foundations of this House. When the question is asked here, what disturbs the people, whence all this clamour, we apply to the treasury-bench, and they tell us it is from the efforts of libellers and the wickedness of the people, a worn-out ministerial pretence. If abroad the people are deceived by popular, within we are deluded by ministerial, cant. The question amounts to this, whether you mean to be a legal tribunal, or an arbitrary and despotic assembly. I see and I feel the delicacy and difficulty of the ground upon which we stand in this question. I could wish, indeed, that they who advised the Crown had not left Parliament in this very ungraceful distress, in which they can neither retract with dignity nor persist with justice. Another parliament might have satisfied the people without lowering themselves. But our situation is not in our own choice: our conduct in that situation is all that is in our own option. The substance of the question is, to put bounds to your own power by the rules and principles of law. This is, I am sensible, a difficult thing to the corrupt, grasping, and ambitious part of human nature. But the very difficulty argues and enforces the necessity of it. First, because the greater the power, the more dangerous the abuse. Since the Revolution, at least, the power of the nation has all flowed with a full tide into the House of Commons. Secondly, because the House of Commons, as it is the most powerful, is the most corruptible part of the whole Constitution. Our public wounds cannot be concealed; to be cured, they must be laid open. The public does think we are a corrupt body. In our legislative capacity we are, in most instances, esteemed a very wise body. In our judicial, we have no credit, no character at, all. Our judgments stink in the nostrils of the people. They think us to be not only without virtue, but without shame. Therefore, the greatness of our power, and the great and just opinion of our corruptibility and our corruption, render it necessary to fix some bound, to plant some landmark, which we are never to exceed. That is what the bill proposes. First, on this head, I lay it down as a fundamental rule in the law and constitution of this country, that this House has not by itself alone a legislative authority in any case whatsoever. I know that the contrary was the doctrine of the usurping House of Commons which threw down the fences and bulwarks of law, which annihilated first the lords, then the Crown, then its constituents. But the first thing that was done on the restoration of the Constitution was to settle this point. Secondly, I lay it down as a rule, that the power of occasional incapacitation, on discretionary grounds, is a legislative power. In order to establish this principle, if it should not be sufficiently proved by being stated, tell me what are the criteria, the characteristics, by which you distinguish between a legislative and a juridical act. It will be necessary to state, shortly, the difference between a legislative and a juridical act. A legislative act has no reference to any rule but these two: original justice, and discretionary application. Therefore, it can give rights; rights where no rights existed before; and it can take away rights where they were before established. For the law, which binds all others, does not and cannot bind the law-maker; he, and he alone, is above the law. But a judge, a person exercising a judicial capacity, is neither to apply to original justice, nor to a discretionary application of it. He goes to justice and discretion only at second hand, and through the medium of some superiors. He is to work neither upon his opinion of the one nor of the other; but upon a fixed rule, of which he has not the making, but singly and solely the application to the case.
The power assumed by the House neither is, nor can be, judicial power exercised according to known law. The properties of law are, first, that it should be known; secondly, that it should be fixed and not occasional. First, this power cannot be according to the first property of law; because no man does or can know it, nor do you yourselves know upon what grounds you will vote the incapacity of any man. No man in Westminster Hall, or in any court upon earth, will say that is law, upon which, if a man going to his counsel should say to him, “What is my tenure in law of this estate?” he would answer, “Truly, sir, I know not; the court has no rule but its own discretion: they will determine.” It is not a, fixed law, because you profess you vary it according to the occasion, exercise it according to your discretion; no man can call for it as a right. It is argued that the incapacity is not originally voted, but a consequence of a power of expulsion: but if you expel, not upon legal, but upon arbitrary, that is, upon discretionary grounds, and the incapacity is ex vi termini and inclusively comprehended in the expulsion, is not the incapacity voted in the expulsion? Are they not convertible terms? and, if incapacity is voted to be inherent in expulsion, if expulsion be arbitrary, incapacity is arbitrary also. I have, therefore, shown that the power of incapacitation is a legislative power; I have shown that legislative power does not belong to the House of Commons; and, therefore, it follows that the House of Commons has not a power of incapacitation.
I know not the origin of the House of Commons, but am very sure that it did not create itself; the electors wore prior to the elected; whose rights originated either from the people at large, or from some other form of legislature, which never could intend for the chosen a power of superseding the choosers.
If you have not a power of declaring an incapacity simply by the mere act of declaring it, it is evident to the most ordinary reason you cannot have a right of expulsion, inferring, or rather, including, an incapacity, For as the law, when it gives any direct right, gives also as necessary incidents all the means of acquiring the possession of that right, so where it does not give a right directly, it refuses all the means by which such a right may by any mediums be exercised, or in effect be indirectly acquired. Else it is very obvious that the intention of the law in refusing that right might be entirely frustrated, and the whole power of the legislature baffled. If there be no certain invariable rule of eligibility, it were better to get simplicity, if certainty is not to be had; and to resolve all the franchises of the subject into this one short proposition—the will and pleasure of the House of Commons.