A violent rage for the punishment of Mr. Wilkes was the pretence of the

whole. This gentleman, by setting himself strongly in opposition to the

Court Cabal, had become at once an object of their persecution, and of

the popular favour. The hatred of the Court party pursuing, and the

countenance of the people protecting him, it very soon became not at all

a question on the man, but a trial of strength between the two parties.

The advantage of the victory in this particular contest was the present,

but not the only, nor by any means, the principal, object. Its operation

upon the character of the House of Commons was the great point in view.

The point to be gained by the Cabal was this: that a precedent should be

established, tending to show, _That the favour of the people was not so

sure a road as the favour of the Court even to popular honours and

popular trusts_. A strenuous resistance to every appearance of lawless

power; a spirit of independence carried to some degree of enthusiasm; an

inquisitive character to discover, and a bold one to display, every

corruption and every error of Government; these are the qualities which

recommend a man to a seat in the House of Commons, in open and merely

popular elections. An indolent and submissive disposition; a disposition

to think charitably of all the actions of men in power, and to live in a

mutual intercourse of favours with them; an inclination rather to

countenance a strong use of authority, than to bear any sort of

licentiousness on the part of the people; these are unfavourable

qualities in an open election for Members of Parliament.

The instinct which carries the people towards the choice of the former,

is justified by reason; because a man of such a character, even in its

exorbitancies, does not directly contradict the purposes of a trust, the

end of which is a control on power. The latter character, even when it

is not in its extreme, will execute this trust but very imperfectly; and,

if deviating to the least excess, will certainly frustrate instead of

forwarding the purposes of a control on Government. But when the House

of Commons was to be new modelled, this principle was not only to be

changed, but reversed. Whist any errors committed in support of power

were left to the law, with every advantage of favourable construction, of

mitigation, and finally of pardon; all excesses on the side of liberty,

or in pursuit of popular favour, or in defence of popular rights and

privileges, were not only to be punished by the rigour of the known law,

but by a _discretionary_ proceeding, which brought on _the loss of the

popular object itself_. Popularity was to be rendered, if not directly

penal, at least highly dangerous. The favour of the people might lead

even to a disqualification of representing them. Their odium might

become, strained through the medium of two or three constructions, the

means of sitting as the trustee of all that was dear to them. This is

punishing the offence in the offending part. Until this time, the

opinion of the people, through the power of an Assembly, still in some

sort popular, led to the greatest honours and emoluments in the gift of

the Crown. Now the principle is reversed; and the favour of the Court is

the only sure way of obtaining and holding those honours which ought to

be in the disposal of the people.

It signifies very little how this matter may be quibbled away. Example,

the only argument of effect in civil life, demonstrates the truth of my

proposition. Nothing can alter my opinion concerning the pernicious

tendency of this example, until I see some man for his indiscretion in

the support of power, for his violent and intemperate servility, rendered

incapable of sitting in parliament. For as it now stands, the fault of

overstraining popular qualities, and, irregularly if you please,

asserting popular privileges, has led to disqualification; the opposite

fault never has produced the slightest punishment. Resistance to power

has shut the door of the House of Commons to one man; obsequiousness and

servility, to none.

Not that I would encourage popular disorder, or any disorder. But I

would leave such offences to the law, to be punished in measure and

proportion. The laws of this country are for the most part constituted,

and wisely so, for the general ends of Government, rather than for the

preservation of our particular liberties. Whatever therefore is done in

support of liberty, by persons not in public trust, or not acting merely

in that trust, is liable to be more or less out of the ordinary course of

the law; and the law itself is sufficient to animadvert upon it with

great severity. Nothing indeed can hinder that severe letter from

crushing us, except the temperaments it may receive from a trial by jury.

But if the habit prevails of _going beyond the law_, and superseding this

judicature, of carrying offences, real or supposed, into the legislative

bodies, who shall establish themselves into _courts of criminal equity_,

(so _the Star Chamber_ has been called by Lord Bacon,) all the evils of

the _Star_ Chamber are revived. A large and liberal construction in

ascertaining offences, and a discretionary 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 licence. All this while the peace of the nation must be

shaken, to ruin one libeller, and to tear from the populace a single

favourite.

Nor is it that vice merely skulks in an obscure and contemptible

impunity. Does not the public behold with indignation, persons not only

generally scandalous in their lives, but the identical persons who, by

their society, their instruction, their example, their encouragement,

have drawn this man into the very faults which have furnished the Cabal

with a pretence for his persecution, loaded with every kind of favour,

honour, and distinction, which a Court can bestow? Add but the crime of

servility (the _foedum crimem servitutis_) to every other crime, and the

whole mass is immediately transmuted into virtue, and becomes the just

subject of reward and honour. When therefore I reflect upon this method

pursued by the Cabal in distributing rewards and punishments, I must

conclude that Mr. Wilkes is the object of persecution, not on account of

what he has done in common with others who are the objects of reward, but

for that in which he differs from many of them: that he is pursued for

the spirited dispositions which are blended with his vices; for his

unconquerable firmness, for his resolute, indefatigable, strenuous

resistance against oppression.

In this case, therefore, it was not the man that was to be punished, nor

his faults that were to be discountenanced. Opposition to acts of power

was to be marked by a kind of civil proscription. The popularity which

should arise from such an opposition was to be shown unable to protect

it. The qualities by which court is made to the people, were to render

every fault inexpiable, and every error irretrievable. The qualities by

which court is made to power, were to cover and to sanctify everything.

He that will have a sure and honourable seat, in the House of Commons,

must take care how he adventures to cultivate popular qualities;

otherwise he may, remember the old maxim, _Breves et infaustos populi

Romani amores_. If, therefore, a pursuit of popularity expose a man to

greater dangers than a disposition to servility, the principle which is

the life and soul of popular elections will perish out of the

Constitution.

It behoves the people of England to consider how the House of Commons

under the operation of these examples must of necessity be constituted.

On the side of the Court will be, all honours, offices, emoluments; every

sort of personal gratification to avarice or vanity; and, what is of more

moment to most gentlemen, the means of growing, by innumerable petty

services to individuals, into a spreading interest in their country. On

the other hand, let us suppose a person unconnected with the Court, and

in opposition to its system. For his own person, no office, or

emolument, or title; no promotion ecclesiastical, or civil, or military,

or naval, for children, or brothers, or kindred. In vain an expiring

interest in a borough calls for offices, or small livings, for the

children of mayors, and aldermen, and capital burgesses. His court rival

has them all. He can do an infinite number of acts of generosity and

kindness, and even of public spirit. He can procure indemnity from

quarters. He can procure advantages in trade. He can get pardons for

offences. He can obtain a thousand favours, and avert a thousand evils.

He may, while he betrays every valuable interest of the kingdom, be a

benefactor, a patron, a father, a guardian angel, to his borough. The

unfortunate independent member has nothing to offer, but harsh refusal,

or pitiful excuse, or despondent representation of a hopeless interest.

Except from his private fortune, in which he may be equalled, perhaps

exceeded, by his Court competitor, he has no way of showing any one good

quality, or of making a single friend. In the House, he votes for ever

in a dispirited minority. If he speaks, the doors are locked. A body of

loquacious placemen go out to tell the world, that all he aims at, is to

get into office. If he has not the talent of elocution, which is the

case of many as wise and knowing men as any in the House, he is liable to

all these inconveniences, without the eclat which attends upon any

tolerably successful exertion of eloquence. Can we conceive a more

discouraging post of duty than this? Strip it of the poor reward of

popularity; suffer even the excesses committed in defence of the popular

interest to become a ground for the majority of that House to form a

disqualification out of the line of the law, and at their pleasure,

attended not only with the loss of the franchise, but with every kind of

personal disgrace; if this shall happen, the people of this kingdom may

be assured that they cannot be firmly or faithfully served by any man. It

is out of the nature of men and things that they should; and their

presumption will be equal to their folly, if they expect it. The power

of the people, within the laws, must show itself sufficient to protect

every representative in the animated performance of his duty, or that

duty cannot be performed. The House of Commons can never be a control on

other parts of Government, unless they are controlled themselves by their

constituents; and unless these constituents possess some right in the

choice of that House, which it is not in the power of that House to take

away. If they suffer this power of arbitrary incapacitation to stand,

they have utterly perverted every other power of the House of Commons.

The late proceeding, I will not say, _is_ contrary to law; it _must_ be

so; for the power which is claimed cannot, by any possibility, be a legal

power in any limited member of Government.

The power which they claim, of declaring incapacities, would not be above

the just claims of a final judicature, if they had not laid it down as a

leading principle, that they had no rule in the exercise of this claim

but their own _discretion_. Not one of their abettors has ever

undertaken to assign the principle of unfitness, the species or degree of

delinquency, on which the House of Commons will expel, nor the mode of

proceeding upon it, nor the evidence upon which it is established. The

direct consequence of which is, that the first franchise of an

Englishman, and that on which all the rest vitally depend, is to be

forfeited for some offence which no man knows, and which is to be proved

by no known rule whatsoever of legal evidence. This is so anomalous to

our whole constitution, that I will venture to say, the most trivial

right, which the subject claims, never was, nor can be, forfeited in such

a manner.

The whole of their usurpation is established upon this method of arguing.

We do not make laws. No; we do not contend for this power. We only

declare law; and, as we are a tribunal both competent and supreme, what

we declare to be law becomes law, although it should not have been so

before. Thus the circumstance of having no appeal from their

jurisdiction is made to imply that they have no rule in the exercise of

it: the judgment does not derive its validity from its conformity to the

law; but preposterously the law is made to attend on the judgment; and

the rule of the judgment is no other than the _occasional will of the

House_. An arbitrary discretion leads, legality follows; which is just

the very nature and description of a legislative act.

This claim in their hands was no barren theory. It was pursued into its

utmost consequences; and a dangerous principle has begot a correspondent

practice. A systematic spirit has been shown upon both sides. The

electors of Middlesex chose a person whom the House of Commons had voted

incapable; and the House of Commons has taken in a member whom the

electors of Middlesex had not chosen. By a construction on that

legislative power which had been assumed, they declared that the true

legal sense of the country was contained in the minority, on that

occasion; and might, on a resistance to a vote of incapacity, be

contained in any minority.

When any construction of law goes against the spirit of the privilege it

was meant to support, it is a vicious construction. It is material to us

to be represented really and bona fide, and not in forms, in types, and

shadows, and fictions of law. The right of election was not established

merely as a _matter of form_, to satisfy some method and rule of

technical reasoning; it was not a principle which might substitute a

_Titius_ or a _Maevius_, a _John Doe_ or _Richard Roe_, in the place of a

man specially chosen; not a principle which was just as well satisfied

with one man as with another. It is a right, the effect of which is to

give to the people that man, and that man only, whom by their voices,

actually, not constructively given, they declare that they know, esteem,

love, and trust. This right is a matter within their own power of

judging and feeling; not an _ens rationis_ and creature of law: nor can

those devices, by which anything else is substituted in the place of such

an actual choice, answer in the least degree the end of representation.

I know that the courts of law have made as strained constructions in

other cases. Such is the construction in common recoveries. The method

of construction which in that case gives to the persons in remainder, for

their security and representative, the door-keeper, crier, or sweeper of

the Court, or some other shadowy being without substance or effect, is a

fiction of a very coarse texture. This was however suffered, by the

acquiescence of the whole kingdom, for ages; because the evasion of the

old Statute of Westminster, which authorised perpetuities, had more sense

and utility than the law which was evaded. But an attempt to turn the

right of election into such a farce and mockery as a fictitious fine and

recovery, will, I hope, have another fate; because the laws which give it

are infinitely dear to us, and the evasion is infinitely contemptible.

The people indeed have been told, that this power of discretionary

disqualification is vested in hands that they may trust, and who will be

sure not to abuse it to their prejudice. Until I find something in this

argument differing from that on which every mode of despotism has been

defended, I shall not be inclined to pay it any great compliment. The

people are satisfied to trust themselves with the exercise of their own

privileges, and do not desire this kind intervention of the House of

Commons to free them from the burthen. They are certainly in the right.

They ought not to trust the House of Commons with a power over their

franchises; because the constitution, which placed two other co-ordinate

powers to control it, reposed no such confidence in that body. It were a

folly well deserving servitude for its punishment, to be full of

confidence where the laws are full of distrust; and to give to an House

of Commons, arrogating to its sole resolution the most harsh and odious

part of legislative authority, that degree of submission which is due

only to the Legislature itself.

When the House of Commons, in an endeavour to obtain new advantages at

the expense of the other orders of the State, for the benefits of the

_Commons at large_, have pursued strong measures; if it were not just, it

was at least natural, that the constituents should connive at all their

proceedings; because we were ourselves ultimately to profit. But when

this submission is urged to us, in a contest between the representatives

and ourselves, and where nothing can be put into their scale which is not

taken from ours, they fancy us to be children when they tell us they are

our representatives, our own flesh and blood, and that all the stripes

they give us are for our good. The very desire of that body to have such

a trust contrary to law reposed in them, shows that they are not worthy

of it. They certainly will abuse it; because all men possessed of an

uncontrolled discretionary power leading to the aggrandisement and profit

of their own body have always abused it: and I see no particular sanctity

in our times, that is at all likely, by a miraculous operation, to

overrule the course of nature.

But we must purposely shut our eyes, if we consider this matter merely as

a contest between the House of Commons and the Electors. The true

contest is between the Electors of the Kingdom and the Crown; the Crown

acting by an instrumental House of Commons. It is precisely the same,

whether the Ministers of the Crown can disqualify by a dependent House of

Commons, or by a dependent court of _Star Chamber_, or by a dependent

court of King's Bench. If once Members of Parliament can be practically

convinced that they do not depend on the affection or opinion of the

people for their political being, they will give themselves over, without

even an appearance of reserve, to the influence of the Court.

Indeed, a Parliament unconnected with the people, is essential to a

Ministry unconnected with the people; and therefore those who saw through

what mighty difficulties the interior Ministry waded, and the exterior

were dragged, in this business, will conceive of what prodigious

importance, the new corps of _King's men_ held this principle of

occasional and personal incapacitation, to the whole body of their

design.

When the House of Commons was thus made to consider itself as the master

of its constituents, there wanted but one thing to secure that House

against all possible future deviation towards popularity; an unlimited

fund of money to be laid out according to the pleasure of the Court.

* * * * *

To complete the scheme of bringing our Court to a resemblance to the

neighbouring Monarchies, it was necessary, in effect, to destroy those

appropriations of revenue, which seem to limit the property, as the other

laws had done the powers, of the Crown. An opportunity for this purpose

was taken, upon an application to Parliament for payment of the debts of

the Civil List; which in 1769 had amounted to 513,000 pounds. Such

application had been made upon former occasions; but to do it in the

former manner would by no means answer the present purpose.

Whenever the Crown had come to the Commons to desire a supply for the

discharging of debts due on the Civil List, it was always asked and

granted with one of the three following qualifications; sometimes with

all of them. Either it was stated that the revenue had been diverted

from its purposes by Parliament; or that those duties had fallen short of

the sum for which they were given by Parliament, and that the intention

of the Legislature had not been fulfilled; or that the money required to

discharge the Civil List debt was to be raised chargeable on the Civil

List duties. In the reign of Queen Anne, the Crown was found in debt.

The lessening and granting away some part of her revenue by Parliament

was alleged as the cause of that debt, and pleaded as an equitable ground

(such it certainly was), for discharging it. It does not appear that the

duties which wore then applied to the ordinary Government produced clear

above 580,000 pounds a year; because, when they were afterwards granted

to George the First, 120,000 pounds was added, to complete the whole to

700,000 pounds a year. Indeed it was then asserted, and, I have no

doubt, truly, that for many years the nett produce did not amount to

above 550,000 pounds. The Queen's extraordinary charges were besides

very considerable; equal, at least, to any we have known in our time. The

application to Parliament was not for an absolute grant of money, but to

empower the Queen to raise it by borrowing upon the Civil List funds.

The Civil List debt was twice paid in the reign of George the First. The

money was granted upon the same plan which had been followed in the reign

of Queen Anne. The Civil List revenues were then mortgaged for the sum

to be raised, and stood charged with the ransom of their own deliverance.

George the Second received an addition to his Civil List. Duties were

granted for the purpose of raising 800,000 pounds a year. It was not

until he had reigned nineteen years, and after the last rebellion, that

he called upon Parliament for a discharge of the Civil List debt. The

extraordinary charges brought on by the rebellion, account fully for the

necessities of the Crown. However, the extraordinary charges of

Government were not thought a ground fit to be relied on. A deficiency

of the Civil List duties for several years before was stated as the

principal, if not the sole, ground on which an application to Parliament

could be justified. About this time the produce of these duties had

fallen pretty low; and even upon an average of the whole reign they never

produced 800,000 pounds a year clear to the Treasury.

That Prince reigned fourteen years afterwards: not only no new demands

were made, but with so much good order were his revenues and expenses

regulated, that, although many parts of the establishment of the Court

were upon a larger and more liberal scale than they have been since,

there was a considerable sum in hand, on his decease, amounting to about

170,000 pounds, applicable to the service of the Civil List of his

present Majesty. So that, if this reign commenced with a greater charge

than usual, there was enough, and more than enough, abundantly to supply

all the extraordinary expense. That the Civil List should have been

exceeded in the two former reigns, especially in the reign of George the

First, was not at all surprising. His revenue was but 700,000 pounds

annually; if it ever produced so much clear. The prodigious and

dangerous disaffection to the very being of the establishment, and the

cause of a Pretender then powerfully abetted from abroad, produced many

demands of an extraordinary nature both abroad and at home. Much

management and great expenses were necessary. But the throne of no

Prince has stood upon more unshaken foundations than that of his present

Majesty.

To have exceeded the sum given for the Civil List, and to have incurred a

debt without special authority of Parliament, was, _prima facie_, a

criminal act: as such Ministers ought naturally rather to have withdrawn

it from the inspection, than to have exposed it to the scrutiny, of

Parliament. Certainly they ought, of themselves, officially to have come

armed with every sort of argument, which, by explaining, could excuse a

matter in itself of presumptive guilt. But the terrors of the House of

Commons are no longer for Ministers.

On the other hand, the peculiar character of the House of Commons, as

trustee of the public purse, would have led them to call with a

punctilious solicitude for every public account, and to have examined

into them with the most rigorous accuracy.

The capital use of an account is, that the reality of the charge, the

reason of incurring it, and the justice and necessity of discharging it,

should all appear antecedent to the payment. No man ever pays first, and

calls for his account afterwards; because he would thereby let out of his

hands the principal, and indeed only effectual, means of compelling a

full and fair one. But, in national business, there is an additional

reason for a previous production of every account. It is a cheek,

perhaps the only one, upon a corrupt and prodigal use of public money. An

account after payment is to no rational purpose an account. However, the

House of Commons thought all these to be antiquated principles; they were

of opinion that the most Parliamentary way of proceeding was, to pay

first what the Court thought proper to demand, and to take its chance for

an examination into accounts at some time of greater leisure.

The nation had settled 800,000 pounds a year on the Crown, as sufficient

for the purpose of its dignity, upon the estimate of its own Ministers.

When Ministers came to Parliament, and said that this allowance had not

been sufficient for the purpose, and that they had incurred a debt of

500,000 pounds, would it not have been natural for Parliament first to

have asked, how, and by what means, their appropriated allowance came to

be insufficient? Would it not have savoured of some attention to

justice, to have seen in what periods of Administration this debt had

been originally incurred; that they might discover, and if need were,

animadvert on the persons who were found the most culpable? To put their

hands upon such articles of expenditure as they thought improper or

excessive, and to secure, in future, against such misapplication or

exceeding? Accounts for any other purposes are but a matter of

curiosity, and no genuine Parliamentary object. All the accounts which

could answer any Parliamentary end were refused, or postponed by previous

questions. Every idea of prevention was rejected, as conveying an

improper suspicion of the Ministers of the Crown.

When every leading account had been refused, many others were granted

with sufficient facility.

But with great candour also, the House was informed, that hardly any of

them could be ready until the next session; some of them perhaps not so

soon. But, in order firmly to establish the precedent of _payment

previous to account_, and to form it into a settled rule of the House,

the god in the machine was brought down, nothing less than the wonder-

working _Law of Parliament_. It was alleged, that it is the law of

Parliament, when any demand comes from the Crown, that the House must go

immediately into the Committee of Supply; in which Committee it was

allowed, that the production and examination of accounts would be quite

proper and regular. It was therefore carried that they should go into

the Committee without delay, and without accounts, in order to examine

with great order and regularity things that could not possibly come

before them. After this stroke of orderly and Parliamentary wit and

humour, they went into the Committee, and very generously voted the

payment.

There was a circumstance in that debate too remarkable to be overlooked.

This debt of the Civil List was all along argued upon the same footing as

a debt of the State, contracted upon national authority. Its payment was

urged as equally pressing upon the public faith and honour; and when the

whole year's account was stated, in what is called _The Budget_, the

Ministry valued themselves on the payment of so much public debt, just as

if they had discharged 500,000 pounds of navy or exchequer bills. Though,

in truth, their payment, from the Sinking Fund, of debt which was never

contracted by Parliamentary authority, was, to all intents and purposes,

so much debt incurred. But such is the present notion of public credit

and payment of debt. No wonder that it produces such effects.

Nor was the House at all more attentive to a provident security against

future, than it had been to a vindictive retrospect to past,

mismanagements. I should have thought indeed that a Ministerial promise,

during their own continuance in office, might have been given, though

this would have been but a poor security for the public. Mr. Pelham gave

such an assurance, and he kept his word. But nothing was capable of

extorting from our Ministers anything which had the least resemblance to

a promise of confining the expenses of the Civil List within the limits

which had been settled by Parliament. This reserve of theirs I look upon

to be equivalent to the clearest declaration that they were resolved upon

a contrary course.

However, to put the matter beyond all doubt, in the Speech from the

Throne, after thanking Parliament for the relief so liberally granted,

the Ministers inform the two Houses that they will _endeavour_ to confine

the expenses of the Civil Government--within what limits, think you?

those which the law had prescribed? Not in the least--"such limits as

the _honour of the Crown_ can possibly admit."

Thus they established an arbitrary standard for that dignity which

Parliament had defined and limited to a legal standard. They gave

themselves, under the lax and indeterminate idea of the _honour of the

Crown_, a full loose for all manner of dissipation, and all manner of

corruption. This arbitrary standard they were not afraid to hold out to

both Houses; while an idle and inoperative Act of Parliament, estimating

the dignity of the Crown at 800,000 pounds, and confining it to that sum,

adds to the number of obsolete statutes which load the shelves of

libraries without any sort of advantage to the people.

After this proceeding, I suppose that no man can be so weak as to think

that the Crown is limited to any settled allowance whatsoever. For if

the Ministry has 800,000 pounds a year by the law of the land, and if by

the law of Parliament all the debts which exceed it are to be paid

previous to the production of any account, I presume that this is

equivalent to an income with no other limits than the abilities of the

subject and the moderation of the Court--that is to say, it is such in

income as is possessed by every absolute Monarch in Europe. It amounts,

as a person of great ability said in the debate, to an unlimited power of

drawing upon the Sinking Fund. Its effect on the public credit of this

kingdom must be obvious; for in vain is the Sinking Fund the great

buttress of all the rest, if it be in the power of the Ministry to resort

to it for the payment of any debts which they may choose to incur, under

the name of the Civil List, and through the medium of a committee, which

thinks itself obliged by law to vote supplies without any other account

than that of the more existence of the debt.

Five hundred thousand pounds is a serious sum. But it is nothing to the

prolific principle upon which the sum was voted--a principle that may be

well called, _the fruitful mother of a hundred more_. Neither is the

damage to public credit of very great consequence when compared with that

which results to public morals and to the safety of the Constitution,

from the exhaustless mine of corruption opened by the precedent, and to

be wrought by the principle of the late payment of the debts of the Civil

List. The power of discretionary disqualification by one law of

Parliament, and the necessity of paying every debt of the Civil List by

another law of Parliament, if suffered to pass unnoticed, must establish

such a fund of rewards and terrors as will make Parliament the best

appendage and support of arbitrary power that ever was invented by the

wit of man. This is felt. The quarrel is begun between the

Representatives and the People. The Court Faction have at length

committed them.

In such a strait the wisest may well be perplexed, and the boldest

staggered. The circumstances are in a great measure new. We have hardly

any landmarks from the wisdom of our ancestors to guide us. At best we

can only follow the spirit of their proceeding in other cases. I know

the diligence with which my observations on our public disorders have

been made. I am very sure of the integrity of the motives on which they

are published: I cannot be equally confident in any plan for the absolute

cure of those disorders, or for their certain future prevention. My aim

is to bring this matter into more public discussion. Let the sagacity of

others work upon it. It is not uncommon for medical writers to describe

histories of diseases, very accurately, on whose cure they can say but

very little.

The first ideas which generally suggest themselves for the cure of

Parliamentary disorders are, to shorten the duration of Parliaments, and

to disqualify all, or a great number of placemen, from a seat in the

House of Commons. Whatever efficacy there may be in those remedies, I am

sure in the present state of things it is impossible to apply them. A

restoration of the right of free election is a preliminary indispensable

to every other reformation. What alterations ought afterwards to be made

in the constitution is a matter of deep and difficult research.

If I wrote merely to please the popular palate, it would indeed be as

little troublesome to me as to another to extol these remedies, so famous

in speculation, but to which their greatest admirers have never attempted

seriously to resort in practice. I confess them, that I have no sort of

reliance upon either a Triennial Parliament or a Place-bill. With regard

to the former, perhaps, it might rather serve to counteract than to

promote the ends that are proposed by it. To say nothing of the horrible

disorders among the people attending frequent elections, I should be

fearful of committing, every three years, the independent gentlemen of

the country into a contest with the Treasury. It is easy to see which of

the contending parties would be ruined first. Whoever has taken a

careful view of public proceedings, so as to endeavour to ground his

speculations on his experience, must have observed how prodigiously

greater the power of Ministry is in the first and last session of a

Parliament, than it is in the intermediate periods, when Members sit a

little on their seats. The persons of the greatest Parliamentary

experience, with whom I have conversed, did constantly, in canvassing the

fate of questions, allow something to the Court side, upon account of the

elections depending or imminent. The evil complained of, if it exists in

the present state of things, would hardly be removed by a triennial

Parliament: for, unless the influence of Government in elections can be

entirely taken away, the more frequently they return, the more they will

harass private independence; the more generally men will be compelled to

fly to the settled systematic interest of Government, and to the

resources of a boundless Civil List. Certainly something may be done,

and ought to be done, towards lessening that influence in elections; and

this will be necessary upon a plan either of longer or shorter duration

of Parliament. But nothing can so perfectly remove the evil, as not to

render such contentions, foot frequently repeated, utterly ruinous, first

to independence of fortune, and then to independence of spirit. As I am

only giving an opinion on this point, and not at all debating it in an

adverse line, I hope I may be excused in another observation. With great

truth I may aver that I never remember to have talked on this subject

with any man much conversant with public business who considered short

Parliaments as a real improvement of the Constitution. Gentlemen, warm

in a popular cause, are ready enough to attribute all the declarations of

such persons to corrupt motives. But the habit of affairs, if, on one

hand, it tends to corrupt the mind, furnishes it, on the other, with the,

means of better information. The authority of such persons will always

have some weight. It may stand upon a par with the speculations of those

who are less practised in business; and who, with perhaps purer

intentions, have not so effectual means of judging. It is besides an

effect of vulgar and puerile malignity to imagine that every Statesman is

of course corrupt: and that his opinion, upon every constitutional point,

is solely formed upon some sinister interest.

The next favourite remedy is a Place-bill. The same principle guides in

both: I mean the opinion which is entertained by many of the

infallibility of laws and regulations, in the cure of public distempers.

Without being as unreasonably doubtful as many are unwisely confident, I

will only say, that this also is a matter very well worthy of serious and

mature reflection. It is not easy to foresee what the effect would be of

disconnecting with Parliament, the greatest part of those who hold civil

employments, and of such mighty and important bodies as the military and

naval establishments. It were better, perhaps, that they should have a

corrupt interest in the forms of the constitution, than they should have

none at all. This is a question altogether different from the

disqualification of a particular description of Revenue Officers from

seats in Parliament; or, perhaps, of all the lower sorts of them from

votes in elections. In the former case, only the few are affected; in

the latter, only the inconsiderable. But a great official, a great

professional, a great military and naval interest, all necessarily

comprehending many people of the first weight, ability, wealth, and

spirit, has been gradually formed in the kingdom. These new interests

must be let into a share of representation, else possibly they may be

inclined to destroy those institutions of which they are not permitted to

partake. This is not a thing to be trifled with: nor is it every well-

meaning man that is fit to put his hands to it. Many other serious

considerations occur. I do not open them here, because they are not

directly to my purpose; proposing only to give the reader some taste of

the difficulties that attend all capital changes in the Constitution;

just to hint the uncertainty, to say no worse, of being able to prevent

the Court, as long as it has the means of influence abundantly in its

power, from applying that influence to Parliament; and perhaps, if the

public method were precluded, of doing it in some worse and more

dangerous method. Underhand and oblique ways would be studied. The

science of evasion, already tolerably understood, would then be brought

to the greatest perfection. It is no inconsiderable part of wisdom, to

know how much of an evil ought to be tolerated; lest, by attempting a

degree of purity impracticable in degenerate times and manners, instead

of cutting off the subsisting ill practices, new corruptions might be

produced for the concealment and security of the old. It were better,

undoubtedly, that no influence at all could affect the mind of a Member

of Parliament. But of all modes of influence, in my opinion, a place

under the Government is the least disgraceful to the man who holds it,

and by far the most safe to the country. I would not shut out that sort

of influence which is open and visible, which is connected with the

dignity and the service of the State, when it is not in my power to

prevent the influence of contracts, of subscriptions, of direct bribery,

and those innumerable methods of clandestine corruption, which are

abundantly in the hands of the Court, and which will be applied as long

as these means of corruption, and the disposition to be corrupted, have

existence amongst us. Our Constitution stands on a nice equipoise, with

steep precipices and deep waters upon all sides of it. In removing it

from a dangerous leaning towards one side, there may be a risk of

oversetting it on the other. Every project of a material change in a

Government so complicated as ours, combined at the same time with

external circumstances still more complicated, is a matter full of

difficulties; in which a considerate man will not be too ready to decide;

a prudent man too ready to undertake; or an honest man too ready to

promise. They do not respect the public nor themselves, who engage for

more than they are sure that they ought to attempt, or that they are able

to perform. These are my sentiments, weak perhaps, but honest and

unbiassed; and submitted entirely to the opinion of grave men, well

affected to the constitution of their country, and of experience in what

may best promote or hurt it.

Indeed, in the situation in which we stand, with an immense revenue, an

enormous debt, mighty establishments, Government itself a great banker

and a great merchant, I see no other way for the preservation of a decent

attention to public interest in the Representatives, but _the

interposition of the body of the people itself_, whenever it shall

appear, by some flagrant and notorious act, by some capital innovation,

that these Representatives are going to over-leap the fences of the law,

and to introduce an arbitrary power. This interposition is a most

unpleasant remedy. But, if it be a legal remedy, it is intended on some

occasion to be used; to be used then only, when it is evident that

nothing else can hold the Constitution to its true principles.

* * * * *

The distempers of Monarchy were the great subjects of apprehension and

redress, in the last century; in this, the distempers of Parliament. It

is not in Parliament alone that the remedy for Parliamentary disorders

can be completed; hardly, indeed, can it begin there. Until a confidence

in Government is re-established, the people ought to be excited to a more

strict and detailed attention to the conduct of their Representatives.

Standards, for judging more systematically upon their conduct, ought to

be settled in the meetings of counties and corporations. Frequent and

correct lists of the voters in all important questions ought to be

procured.

By such means something may be done. By such means it may appear who

those are, that, by an indiscriminate support of all Administrations,

have totally banished all integrity and confidence out of public

proceedings; have confounded the best men with the worst; and weakened

and dissolved, instead of strengthening and compacting, the general frame

of Government. If any person is more concerned for government and order

than for the liberties of his country, even he is equally concerned to

put an end to this course of indiscriminate support. It is this blind

and undistinguishing support that feeds the spring of those very

disorders, by which he is frighted into the arms of the faction which

contains in itself the source of all disorders, by enfeebling all the

visible and regular authority of the State. The distemper is increased

by his injudicious and preposterous endeavours, or pretences, for the

cure of it.

An exterior Administration, chosen for its impotency, or after it is

chosen purposely rendered impotent, in order to be rendered subservient,

will not be obeyed. The laws themselves will not be respected, when

those who execute them are despised: and they will be despised, when

their power is not immediate from the Crown, or natural in the kingdom.

Never were Ministers better supported in Parliament. Parliamentary

support comes and goes with office, totally regardless of the man, or the

merit. Is Government strengthened? It grows weaker and weaker. The

popular torrent gains upon it every hour. Let us learn from our

experience. It is not support that is wanting to Government, but

reformation. When Ministry rests upon public opinion, it is not indeed

built upon a rock of adamant; it has, however, some stability. But when

it stands upon private humour, its structure is of stubble, and its

foundation is on quicksand. I repeat it again--He that supports every

Administration, subverts all Government. The reason is this. The whole

business in which a Court usually takes an interest goes on at present

equally well, in whatever hands, whether high or low, wise or foolish,

scandalous or reputable; there is nothing, therefore, to hold it firm to

any one body of men, or to any one consistent scheme of politics. Nothing

interposes to prevent the full operation of all the caprices and all the

passions of a Court upon the servants of the public. The system of

Administration is open to continual shocks and changes, upon the

principles of the meanest cabal, and the most contemptible intrigue.

Nothing can be solid and permanent. All good men at length fly with

horror from such a service. Men of rank and ability, with the spirit

which ought to animate such men in a free state, while they decline the

jurisdiction of dark cabal on their actions and their fortunes, will, for

both, cheerfully put themselves upon their country. They will trust an

inquisitive and distinguishing Parliament; because it does inquire, and

does distinguish. If they act well, they know that, in such a

Parliament, they will be supported against any intrigue; if they act ill,

they know that no intrigue can protect them. This situation, however

awful, is honourable. But in one hour, and in the self-same Assembly,

without any assigned or assignable cause, to be precipitated from the

highest authority to the most marked neglect, possibly into the greatest

peril of life and reputation, is a situation full of danger, and

destitute of honour. It will be shunned equally by every man of

prudence, and every man of spirit.

Such are the consequences of the division of Court from the

Administration; and of the division of public men among themselves. By

the former of these, lawful Government is undone; by the latter, all

opposition to lawless power is rendered impotent. Government may in a

great measure be restored, if any considerable bodies of men have honesty

and resolution enough never to accept Administration, unless this

garrison of _King's_ meat, which is stationed, as in a citadel, to

control and enslave it, be entirely broken and disbanded, and every work

they have thrown up be levelled with the ground. The disposition of

public men to keep this corps together, and to act under it, or to co-

operate with it, is a touchstone by which every Administration ought in

future to be tried. There has not been one which has not sufficiently

experienced the utter incompatibility of that faction with the public

peace, and with all the ends of good Government; since, if they opposed

it, they soon lost every power of serving the Crown; if they submitted to

it they lost all the esteem of their country. Until Ministers give to

the public a full proof of their entire alienation from that system,

however plausible their pretences, we may be sure they are more intent on

the emoluments than the duties of office. If they refuse to give this

proof, we know of what stuff they are made. In this particular, it ought

to be the electors' business to look to their Representatives. The

electors ought to esteem it no less culpable in their Member to give a

single vote in Parliament to such an Administration, than to take an

office under it; to endure it, than to act in it. The notorious

infidelity and versatility of Members of Parliament, in their opinions of

men and things, ought in a particular manner to be considered by the

electors in the inquiry which is recommended to them. This is one of the

principal holdings of that destructive system which has endeavoured to

unhinge all the virtuous, honourable, and useful connections in the

kingdom.

This cabal has, with great success, propagated a doctrine which serves

for a colour to those acts of treachery; and whilst it receives any

degree of countenance, it will be utterly senseless to look for a

vigorous opposition to the Court Party. The doctrine is this: That all

political connections are in their nature factious, and as such ought to

be dissipated and destroyed; and that the rule for forming

Administrations is mere personal ability, rated by the judgment of this

cabal upon it, and taken by drafts from every division and denomination

of public men. This decree was solemnly promulgated by the head of the

Court corps, the Earl of Bute himself, in a speech which he made, in the

year 1766, against the then Administration, the only Administration

which, he has ever been known directly and publicly to oppose.

It is indeed in no way wonderful, that such persons should make such

declarations. That connection and faction are equivalent terms, is an

opinion which has been carefully inculcated at all times by

unconstitutional Statesmen. The reason is evident. Whilst men are

linked together, they easily and speedily communicate the alarm of an

evil design. They are enabled to fathom it with common counsel, and to

oppose it with united strength. Whereas, when they lie dispersed,

without concert, order, or discipline, communication is uncertain,

counsel difficult, and resistance impracticable. Where men are not

acquainted with each other's principles, nor experienced in each other's

talents, nor at all practised in their mutual habitudes and dispositions

by joint efforts in business; no personal confidence, no friendship, no

common interest, subsisting among them; it is evidently impossible that

they can act a public part with uniformity, perseverance, or efficacy. In

a connection, the most inconsiderable man, by adding to the weight of the

whole, has his value, and his use; out of it, the greatest talents are

wholly unserviceable to the public. No man, who is not inflamed by

vainglory into enthusiasm, can flatter himself that his single,

unsupported, desultory, unsystematic endeavours, are of power to defeat,

the subtle designs and united cabals of ambitious citizens. When bad men

combine, the good must associate; else they will fall, one by one, an

unpitied sacrifice in a contemptible struggle.

It is not enough in a situation of trust in the commonwealth, that a man

means well to his country; it is not enough that in his single person he

never did an evil act, but always voted according to his conscience, and

even harangued against every design which he apprehended to be

prejudicial to the interests of his country. This innoxious and

ineffectual character, that seems formed upon a plan of apology and

disculpation, falls miserably short of the mark of public duty. That

duty demands and requires, that what is right should not only be made

known, but made prevalent; that what is evil should not only be detected,

but defeated. When the public man omits to put himself in a situation of

doing his duty with effect, it is an omission that frustrates the

purposes of his trust almost as much as if he had formally betrayed it.

It is surely no very rational account of a man's life that he has always

acted right; but has taken special care to act in such a manner that his

endeavours could not possibly be productive of any consequence.

I do not wonder that the behaviour of many parties should have made

persons of tender and scrupulous virtue somewhat out of humour with all

sorts of connection in politics. I admit that people frequently acquire

in such confederacies a narrow, bigoted, and proscriptive spirit; that

they are apt to sink the idea of the general good in this circumscribed

and partial interest. But, where duty renders a critical situation a

necessary one, it is our business to keep free from the evils attendant

upon it, and not to fly from the situation itself. If a fortress is

seated in an unwholesome air, an officer of the garrison is obliged to be

attentive to his health, but he must not desert his station. Every

profession, not excepting the glorious one of a soldier, or the sacred

one of a priest, is liable to its own particular vices; which, however,

form no argument against those ways of life; nor are the vices themselves

inevitable to every individual in those professions. Of such a nature

are connections in politics; essentially necessary for the full

performance of our public duty, accidentally liable to degenerate into

faction. Commonwealths are made of families, free Commonwealths of

parties also; and we may as well affirm, that our natural regards and

ties of blood tend inevitably to make men bad citizens, as that the bonds

of our party weaken those by which we are held to our country.

Some legislators went so far as to make neutrality in party a crime

against the State. I do not know whether this might not have been rather

to overstrain the principle. Certain it is, the best patriots in the

greatest commonwealths have always commanded and promoted such

connections. _Idem sentire de republica_, was with them a principal

ground of friendship and attachment; nor do I know any other capable of

forming firmer, dearer, more pleasing, more honourable, and more virtuous

habitudes. The Romans carried this principle a great way. Even the

holding of offices together, the disposition of which arose from chance,

not selection, gave rise to a relation which continued for life. It was

called _necessitudo sortis_; and it was looked upon with a sacred

reverence. Breaches of any of these kinds of civil relation were

considered as acts of the most distinguished turpitude. The whole people

was distributed into political societies, in which they acted in support

of such interests in the State as they severally affected. For it was

then thought no crime, to endeavour by every honest means to advance to

superiority and power those of your own sentiments and opinions. This

wise people was far from imagining that those connections had no tie, and

obliged to no duty; but that men might quit them without shame, upon

every call of interest. They believed private honour to be the great

foundation of public trust; that friendship was no mean step towards

patriotism; that he who, in the common intercourse of life, showed he

regarded somebody besides himself, when he came to act in a public

situation, might probably consult some other interest than his own. Never

may we become _plus sages que les sages_, as the French comedian has

happily expressed it--wiser than all the wise and good men who have lived

before us. It was their wish, to see public and private virtues, not

dissonant and jarring, and mutually destructive, but harmoniously

combined, growing out of one another in a noble and orderly gradation,

reciprocally supporting and supported. In one of the most fortunate

periods of our history this country was governed by a connection; I mean

the great connection of Whigs in the reign of Queen Anne. They were

complimented upon the principle of this connection by a poet who was in

high esteem with them. Addison, who knew their sentiments, could not

praise them for what they considered as no proper subject of

commendation. As a poet who knew his business, he could not applaud them

for a thing which in general estimation was not highly reputable.

Addressing himself to Britain,

"Thy favourites grow not up by fortune's sport,

Or from the crimes or follies of a Court;

On the firm basis of desert they rise,

From long-tried faith, and friendship's holy ties."

The Whigs of those days believed that the only proper method of rising

into power was through bard essays of practised friendship and

experimented fidelity. At that time it was not imagined that patriotism

was a bloody idol, which required the sacrifice of children and parents,

or dearest connections in private life, and of all the virtues that rise

from those relations. They were not of that ingenious paradoxical

morality to imagine that a spirit of moderation was properly shown in

patiently bearing the sufferings of your friends, or that

disinterestedness was clearly manifested at the expense of other people's

fortune. They believed that no men could act with effect who did not act

in concert; that no men could act in concert who did not act with

confidence; that no men could act with confidence who were not bound

together by common opinions, common affections, and common interests.

These wise men, for such I must call Lord Sunderland, Lord Godolphin,

Lord Somers, and Lord Marlborough, were too well principled in these

maxims, upon which the whole fabric of public strength is built, to be

blown off their ground by the breath of every childish talker. They were

not afraid that they should be called an ambitious Junto, or that their

resolution to stand or fall together should, by placemen, be interpreted

into a scuffle for places.

Party is a body of men united for promoting by their joint endeavours the

national interest, upon some particular principle in which they are all

agreed. For my part, I find it impossible to conceive that any one

believes in his own politics, or thinks them to be of any weight, who

refuses to adopt the means of having them reduced into practice. It is

the business of the speculative philosopher to mark the proper ends of

Government. It is the business of the politician, who is the philosopher

in action, to find out proper means towards those ends, and to employ

them with effect. Therefore, every honourable connection will avow it as

their first purpose to pursue every just method to put the men who hold

their opinions into such a condition as may enable them to carry their

common plans into execution, with all the power and authority of the

State. As this power is attached to certain situations, it is their duty

to contend for these situations. Without a proscription of others, they

are bound to give to their own party the preference in all things, and by

no means, for private considerations, to accept any offers of power in

which the whole body is not included, nor to suffer themselves to be led,

or to be controlled, or to be over-balanced, in office or in council, by

those who contradict, the very fundamental principles on which their

party is formed, and even those upon which every fair connection must

stand. Such a generous contention for power, on such manly and

honourable maxims, will easily be distinguished from the mean and

interested struggle for place and emolument. The very style of such

persons will serve to discriminate them from those numberless impostors

who have deluded the ignorant with professions incompatible with human

practice, and have afterwards incensed them by practices below the level

of vulgar rectitude.

It is an advantage to all narrow wisdom and narrow morals that their

maxims have a plausible air, and, on a cursory view, appear equal to

first principles. They are light and portable. They are as current as

copper coin, and about as valuable. They serve equally the first

capacities and the lowest, and they are, at least, as useful to the worst

men as the best. Of this stamp is the cant of _Not men_, _but measures_;

a sort of charm, by which many people got loose from every honourable

engagement. When I see a man acting this desultory and disconnected

part, with as much detriment to his own fortune as prejudice to the cause

of any party, I am not persuaded that he is right, but I am ready to

believe he is in earnest. I respect virtue in all its situations, even

when it is found in the unsuitable company of weakness. I lament to see

qualities, rare and valuable, squandered away without any public utility.

But when a gentleman with great visible emoluments abandons the party in

which he has long acted, and tells you it is because he proceeds upon his

own judgment that he acts on the merits of the several measures as they

arise, and that he is obliged to follow his own conscience, and not that

of others, he gives reasons which it is impossible to controvert, and

discovers a character which it is impossible to mistake. What shall we

think of him who never differed from a certain set of men until the

moment they lost their power, and who never agreed with them in a single

instance afterwards? Would not such a coincidence of interest and

opinion be rather fortunate? Would it not be an extraordinary cast upon

the dice that a man's connections should degenerate into faction,

precisely at the critical moment when they lose their power or he accepts

a place? When people desert their connections, the desertion is a

manifest fact, upon which a direct simple issue lies, triable by plain

men. Whether a _measure_ of Government be right or wrong is _no matter

of fact_, but a mere affair of opinion, on which men may, as they do,

dispute and wrangle without end. But whether the individual thinks the

measure right or wrong is a point at still a greater distance from the

reach of all human decision. It is therefore very convenient to

politicians not to put the judgment of their conduct on overt acts,

cognisable in any ordinary court, but upon such a matter as can be

triable only in that secret tribunal, where they are sure of being heard

with favour, or where at worst the sentence will be only private

whipping.

I believe the reader would wish to find no substance in a doctrine which

has a tendency to destroy all test of character as deduced from conduct.

He will therefore excuse my adding something more towards the further

clearing up a point which the great convenience of obscurity to

dishonesty has been able to cover with some degree of darkness and doubt.

In order to throw an odium on political connection, these politicians

suppose it a necessary incident to it that you are blindly to follow the

opinions of your party when in direct opposition to your own clear ideas,

a degree of servitude that no worthy man could bear the thought of

submitting to, and such as, I believe, no connections (except some Court

factions) ever could be so senselessly tyrannical as to impose. Men

thinking freely will, in particular instances, think differently. But

still, as the greater Part of the measures which arise in the course of

public business are related to, or dependent on, some great leading

general principles in Government, a man must be peculiarly unfortunate in

the choice of his political company if he does not agree with them at

least nine times in ten. If he does not concur in these general

principles upon which the party is founded, and which necessarily draw on

a concurrence in their application, he ought from the beginning to have

chosen some other, more conformable to his opinions. When the question

is in its nature doubtful, or not very material, the modesty which

becomes an individual, and (in spite of our Court moralists) that

partiality which becomes a well-chosen friendship, will frequently bring

on an acquiescence in the general sentiment. Thus the disagreement will

naturally be rare; it will be only enough to indulge freedom, without

violating concord or disturbing arrangement. And this is all that ever

was required for a character of the greatest uniformity and steadiness in

connection. How men can proceed without any connection at all is to me

utterly incomprehensible. Of what sort of materials must that man be

made, how must he be tempered and put together, who can sit whole years

in Parliament, with five hundred and fifty of his fellow-citizens, amidst

the storm of such tempestuous passions, in the sharp conflict of so many

wits, and tempers, and characters, in the agitation of such mighty

questions, in the discussion of such vast and ponderous interests,

without seeing any one sort of men, whose character, conduct, or

disposition would lead him to associate himself with them, to aid and be

aided, in any one system of public utility?

I remember an old scholastic aphorism, which says that "the man who lives

wholly detached from others must be either an angel or a devil." When I

see in any of these detached gentlemen of our times the angelic purity,

power, and beneficence, I shall admit them to be angels. In the

meantime, we are born only to be men. We shall do enough if we form

ourselves to be good ones. It is therefore our business carefully to

cultivate in our minds, to rear to the most perfect vigour and maturity,

every sort of generous and honest feeling that belongs to our nature. To

bring the, dispositions that are lovely in private life into the service

and conduct of the commonwealth; so to be patriots, as not to forget we

are gentlemen. To cultivate friendships, and to incur enmities. To have

both strong, but both selected: in the one, to be placable; in the other,

immovable. To model our principles to our duties and our situation. To

be fully persuaded that all virtue which is impracticable is spurious,

and rather to run the risk of falling into faults in a course which leads

us to act with effect and energy than to loiter out our days without

blame and without use. Public life is a situation of power and energy;

he trespasses against his duty who sleeps upon his watch, as well as he

that goes over to the enemy.

There is, however, a time for all things. It is not every conjuncture

which calls with equal force upon the activity of honest men; but

critical exigences now and then arise, and I am mistaken if this be not

one of them. Men will see the necessity of honest combination, but they

may see it when it is too late. They may embody when it will be ruinous

to themselves, and of no advantage to the country; when, for want of such

a timely union as may enable them to oppose in favour of the laws, with

the laws on their side, they may at length find themselves under the

necessity of conspiring, instead of consulting. The law, for which they

stand, may become a weapon in the hands of its bitterest enemies; and

they will be cast, at length, into that miserable alternative, between

slavery and civil confusion, which no good man can look upon without

horror, an alternative in which it is impossible he should take either

part with a conscience perfectly at repose. To keep that situation of

guilt and remorse at the utmost distance is, therefore, our first

obligation. Early activity may prevent late and fruitless violence. As

yet we work in the light. The scheme of the enemies of public

tranquillity has disarranged, it has not destroyed us.

If the reader believes that there really exists such a Faction as I have

described, a Faction ruling by the private inclinations of a Court,

against the general sense of the people; and that this Faction, whilst it

pursues a scheme for undermining all the foundations of our freedom,

weakens (for the present at least) all the powers of executory

Government, rendering us abroad contemptible, and at home distracted; he

will believe, also, that nothing but a firm combination of public men

against this body, and that, too, supported by the hearty concurrence of

the people at large, can possibly get the better of it. The people will

see the necessity of restoring public men to an attention to the public

opinion, and of restoring the Constitution to its original principles.

Above all, they will endeavour to keep the House of Commons from assuming

a character which does not belong to it. They will endeavour to keep

that House, for its existence for its powers, and its privileges, as

independent of every other, and as dependent upon themselves, as

possible. This servitude is to a House of Commons (like obedience to the

Divine law), "perfect freedom." For if they once quit this natural,

rational, and liberal obedience, having deserted the only proper

foundation of their power, they must seek a support in an abject and

unnatural dependence somewhere else. When, through the medium of this

just connection with their constituents, the genuine dignity of the House

of Commons is restored, it will begin to think of casting from it, with

scorn, as badges of servility, all the false ornaments of illegal power,

with which it has been, for some time, disgraced. It will begin to think

of its old office of CONTROL. It will not suffer that last of evils to

predominate in the country; men without popular confidence, public

opinion, natural connection, or natural trust, invested with all the

powers of Government.

When they have learned this lesson themselves, they will be willing and

able to teach the Court, that it is the true interest of the Prince to

have but one Administration; and that one composed of those who recommend

themselves to their Sovereign through the opinion of their country, and

not by their obsequiousness to a favourite. Such men will serve their

Sovereign with affection and fidelity; because his choice of them, upon

such principles, is a compliment to their virtue. They will be able to

serve him effectually; because they will add the weight of the country to

the force of the executory power. They will be able to serve their King

with dignity; because they will never abuse his name to the gratification

of their private spleen or avarice. This, with allowances for human

frailty, may probably be the general character of a Ministry, which

thinks itself accountable to the House of Commons, when the House of

Commons thinks itself accountable to its constituents. If other ideas

should prevail, things must remain in their present confusion, until they

are hurried into all the rage of civil violence; or until they sink into

the dead repose of despotism.

SPEECH ON THE MIDDLESEX ELECTION

FEBRUARY, 1771

Mr. Speaker,--In every complicated Constitution (and every free

Constitution is complicated) cases will arise, when the several orders of

the State will clash with one another, and disputes will arise about the

limits of their several rights and privileges. It may be almost

impossible to reconcile them.

Carry the principle on by which you expelled Mr. Wilkes, there is not a

man in the House, hardly a man in the nation, who may not be

disqualified. That this House should have no power of expulsion is a

hard saying. That this House should have a general discretionary power

of disqualification is a dangerous saying. That the people should not

choose their own representative, is a saying that shakes the

Constitution. That this House should name the representative, is a

saying which, followed by practice, subverts the constitution. They have

the right of electing, you have a right of expelling; they of choosing,

you of judging, and only of judging, of the choice. What bounds shall be

set to the freedom of that choice? Their right is prior to ours, we all

originate there. They are the mortal enemies of the House of Commons,

who would persuade them to think or to act as if they were a

self-originated magistracy, independent of the people and unconnected

with their opinions and feelings. Under a pretence of exalting the

dignity, they undermine the very foundations of this House. When the

question is asked here, what disturbs the people, whence all this

clamour, we apply to the treasury-bench, and they tell us it is from the

efforts of libellers and the wickedness of the people, a worn-out

ministerial pretence. If abroad the people are deceived by popular,

within we are deluded by ministerial, cant. The question amounts to

this, whether you mean to be a legal tribunal, or an arbitrary and

despotic assembly. I see and I feel the delicacy and difficulty of the

ground upon which we stand in this question. I could wish, indeed, that

they who advised the Crown had not left Parliament in this very

ungraceful distress, in which they can neither retract with dignity nor

persist with justice. Another parliament might have satisfied the people

without lowering themselves. But our situation is not in our own choice:

our conduct in that situation is all that is in our own option. The

substance of the question is, to put bounds to your own power by the

rules and principles of law. This is, I am sensible, a difficult thing

to the corrupt, grasping, and ambitious part of human nature. But the

very difficulty argues and enforces the necessity of it. First, because

the greater the power, the more dangerous the abuse. Since the

Revolution, at least, the power of the nation has all flowed with a full

tide into the House of Commons. Secondly, because the House of Commons,

as it is the most powerful, is the most corruptible part of the whole

Constitution. Our public wounds cannot be concealed; to be cured, they

must be laid open. The public does think we are a corrupt body. In our

legislative capacity we are, in most instances, esteemed a very wise

body. In our judicial, we have no credit, no character at, all. Our

judgments stink in the nostrils of the people. They think us to be not

only without virtue, but without shame. Therefore, the greatness of our

power, and the great and just opinion of our corruptibility and our

corruption, render it necessary to fix some bound, to plant some

landmark, which we are never to exceed. That is what the bill proposes.

First, on this head, I lay it down as a fundamental rule in the law and

constitution of this country, that this House has not by itself alone a

legislative authority in any case whatsoever. I know that the contrary

was the doctrine of the usurping House of Commons which threw down the

fences and bulwarks of law, which annihilated first the lords, then the

Crown, then its constituents. But the first thing that was done on the

restoration of the Constitution was to settle this point. Secondly, I

lay it down as a rule, that the power of occasional incapacitation, on

discretionary grounds, is a legislative power. In order to establish

this principle, if it should not be sufficiently proved by being stated,

tell me what are the criteria, the characteristics, by which you

distinguish between a legislative and a juridical act. It will be

necessary to state, shortly, the difference between a legislative and a

juridical act. A legislative act has no reference to any rule but these

two: original justice, and discretionary application. Therefore, it can

give rights; rights where no rights existed before; and it can take away

rights where they were before established. For the law, which binds all

others, does not and cannot bind the law-maker; he, and he alone, is

above the law. But a judge, a person exercising a judicial capacity, is

neither to apply to original justice, nor to a discretionary application

of it. He goes to justice and discretion only at second hand, and

through the medium of some superiors. He is to work neither upon his

opinion of the one nor of the other; but upon a fixed rule, of which he

has not the making, but singly and solely the application to the case.

The power assumed by the House neither is, nor can be, judicial power

exercised according to known law. The properties of law are, first, that

it should be known; secondly, that it should be fixed and not occasional.

First, this power cannot be according to the first property of law;

because no man does or can know it, nor do you yourselves know upon what

grounds you will vote the incapacity of any man. No man in Westminster

Hall, or in any court upon earth, will say that is law, upon which, if a

man going to his counsel should say to him, "What is my tenure in law of

this estate?" he would answer, "Truly, sir, I know not; the court has no

rule but its own discretion: they will determine." It is not a, fixed

law, because you profess you vary it according to the occasion, exercise

it according to your discretion; no man can call for it as a right. It

is argued that the incapacity is not originally voted, but a consequence

of a power of expulsion: but if you expel, not upon legal, but upon

arbitrary, that is, upon discretionary grounds, and the incapacity is _ex

vi termini_ and inclusively comprehended in the expulsion, is not the

incapacity voted in the expulsion? Are they not convertible terms? and,

if incapacity is voted to be inherent in expulsion, if expulsion be

arbitrary, incapacity is arbitrary also. I have, therefore, shown that

the power of incapacitation is a legislative power; I have shown that

legislative power does not belong to the House of Commons; and,

therefore, it follows that the House of Commons has not a power of

incapacitation.

I know not the origin of the House of Commons, but am very sure that it

did not create itself; the electors wore prior to the elected; whose

rights originated either from the people at large, or from some other

form of legislature, which never could intend for the chosen a power of

superseding the choosers.

If you have not a power of declaring an incapacity simply by the mere act

of declaring it, it is evident to the most ordinary reason you cannot

have a right of expulsion, inferring, or rather, including, an

incapacity, For as the law, when it gives any direct right, gives also as

necessary incidents all the means of acquiring the possession of that

right, so where it does not give a right directly, it refuses all the

means by which such a right may by any mediums be exercised, or in effect

be indirectly acquired. Else it is very obvious that the intention of

the law in refusing that right might be entirely frustrated, and the

whole power of the legislature baffled. If there be no certain

invariable rule of eligibility, it were better to get simplicity, if

certainty is not to be had; and to resolve all the franchises of the

subject into this one short proposition--the will and pleasure of the

House of Commons.

The argument, drawn from the courts of law, applying the principles of

law to new cases as they emerge, is altogether frivolous, inapplicable,

and arises from a total ignorance of the bounds between civil and

criminal jurisdiction, and of the separate maxims that govern these two

provinces of law, that are eternally separate. Undoubtedly the courts of

law, where a new case comes before them, as they do every hour, then,

that there may be no defect in justice, call in similar principles, and

the example of the nearest determination, and do everything to draw the

law to as near a conformity to general equity and right reason as they

can bring it with its being a fixed principle. _Boni judicis est

ampliare justitiam_--that is, to make open and liberal justice. But in

criminal matters this parity of reason, and these analogies, ever have

been, and ever ought to be, shunned.

Whatever is incident to a court of judicature, is necessary to the House

of Commons, as judging in elections. But a power of making incapacities

is not necessary to a court of judicature; therefore a power of making

incapacities is not necessary to the House of Commons.

Incapacity, declared by whatever authority, stands upon two principles:

first, an incapacity arising from the supposed incongruity of two duties

in the commonwealth; secondly, an incapacity arising from unfitness by

infirmity of nature, or the criminality of conduct. As to the first

class of incapacities, they have no hardship annexed to them. The

persons so incapacitated are paid by one dignity for what they abandon in

another, and, for the most part, the situation arises from their own

choice. But as to the second, arising from an unfitness not fixed by

nature, but superinduced by some positive acts, or arising from

honourable motives, such as an occasional personal disability, of all

things it ought to be defined by the fixed rule of law--what Lord Coke

calls the Golden Metwand of the Law, and not by the crooked cord of

discretion. Whatever is general is better born. We take our common lot

with men of the same description. But to be selected and marked out by a

particular brand of unworthiness among our fellow-citizens, is a lot of

all others the hardest to be borne: and consequently is of all others

that act which ought only to be trusted to the legislature, as not only

legislative in its nature, but of all parts of legislature the most

odious. The question is over, if this is shown not to be a legislative

act. But what is very usual and natural, is to corrupt judicature into

legislature. On this point it is proper to inquire whether a court of

judicature, which decides without appeal, has it as a necessary incident

of such judicature, that whatever it decides _de jure_ is law. Nobody

will, I hope, assert this, because the direct consequence would be the

entire extinction of the difference between true and false judgments.

For, if the judgment makes the law, and not the law directs the judgment,

it is impossible there could be such a thing as an illegal judgment

given.

But, instead of standing upon this ground, they introduce another

question, wholly foreign to it, whether it ought not to be submitted to

as if it were law. And then the question is, By the Constitution of this

country, what degree of submission is due to the authoritative acts of a

limited power? This question of submission, determine it how you please,

has nothing to do in this discussion and in this House. Here it is not

how long the people are bound to tolerate the illegality of our

judgments, but whether we have a right to substitute our occasional

opinion in the place of law, so as to deprive the citizen of his

franchise.

SPEECH ON THE POWERS OF JURIES IN PROSECUTIONS FOR LIBELS

MARCH, 1771

I have always understood that a superintendence over the doctrines, as

well as the proceedings, of the courts of justice, was a principal object

of the constitution of this House; that you were to watch at once over

the lawyer and the law; that there should he an orthodox faith as well as

proper works: and I have always looked with a degree of reverence and

admiration on this mode of superintendence. For being totally disengaged

from the detail of juridical practice, we come to something, perhaps, the

better qualified, and certainly much the better disposed to assert the

genuine principle of the laws; in which we can, as a body, have no other

than an enlarged and a public interest. We have no common cause of a

professional attachment, or professional emulations, to bias our minds;

we have no foregone opinions, which, from obstinacy and false point of

honour, we think ourselves at all events obliged to support. So that

with our own minds perfectly disengaged from the exercise, we may

superintend the execution of the national justice; which from this

circumstance is better secured to the people than in any other country

under heaven it can be. As our situation puts us in a proper condition,

our power enables us to execute this trust. We may, when we see cause of

complaint, administer a remedy; it is in our choice by an address to

remove an improper judge, by impeachment before the peers to pursue to

destruction a corrupt judge, or by bill to assert, to explain, to

enforce, or to reform the law, just as the occasion and necessity of the

case shall guide us. We stand in a situation very honourable to

ourselves, and very useful to our country, if we do not abuse or abandon

the trust that is placed in us.

The question now before you is upon the power of juries in prosecuting

for libels. There are four opinions. 1. That the doctrine as held by

the courts is proper and constitutional, and therefore should not be

altered. 2. That it is neither proper nor constitutional, but that it

will be rendered worse by your interference. 3. That it is wrong, but

that the only remedy is a bill of retrospect. 4. The opinion of those

who bring in the bill; that the thing is wrong, but that it is enough to

direct the judgment of the court in future.

The bill brought in is for the purpose of asserting and securing a great

object in the juridical constitution of this kingdom; which, from a long

series of practices and opinions in our judges, has, in one point, and in

one very essential point, deviated from the true principle.

It is the very ancient privilege of the people of England that they shall

be tried, except in the known exceptions, not by judges appointed by the

Crown, but by their own fellow-subjects, the peers of that county court

at which they owe their suit and service; out of this principle trial by

juries has grown. This principle has not, that I can find, been

contested in any case, by any authority whatsoever; but there is one

case, in which, without directly contesting the principle, the whole

substance, energy, acid virtue of the privilege, is taken out of it; that

is, in the case of a trial by indictment or information for libel. The

doctrine in that case laid down by several judges amounts to this, that

the jury have no competence where a libel is alleged, except to find the

gross corporeal facts of the writing and the publication, together with

the identity of the things and persons to which it refers; but that the

intent and the tendency of the work, in which intent and tendency the

whole criminality consists, is the sole and exclusive province of the

judge. Thus having reduced the jury to the cognisance of facts, not in

themselves presumptively criminal, but actions neutral and indifferent

the whole matter, in which the subject has any concern or interest, is

taken out of the hands of the jury: and if the jury take more upon

themselves, what they so take is contrary to their duty; it is no moral,

but a merely natural power; the same, by which they may do any other

improper act, the same, by which they may even prejudice themselves with

regard to any other part of the issue before them. Such is the matter as

it now stands, in possession of your highest criminal courts, handed down

to them from very respectable legal ancestors. If this can once be

established in this case, the application in principle to other cases

will be easy; and the practice will run upon a descent, until the

progress of an encroaching jurisdiction (for it is in its nature to

encroach, when once it has passed its limits) coming to confine the

juries, case after case, to the corporeal fact, and to that alone, and

excluding the intention of mind, the only source of merit and demerit, of

reward or punishment, juries become a dead letter in the constitution.

For which reason it is high time to take this matter into the

consideration of Parliament, and for that purpose it will be necessary to

examine, first, whether there is anything in the peculiar nature of this

crime that makes it necessary to exclude the jury from considering the

intention in it, more than in others. So far from it, that I take it to

be much less so from the analogy of other criminal cases, where no such

restraint is ordinarily put upon them. The act of homicide is _prima

facie_ criminal. The intention is afterwards to appear, for the jury to

acquit or condemn. In burglary do they insist that the jury have nothing

to do but to find the taking of goods, and that, if they do, they must

necessarily find the party guilty, and leave the rest to the judge; and

that they have nothing to do with the word _felonice_ in the indictment?

The next point is to consider it as a question of constitutional policy,

that is, whether the decision of the question of libel ought to be left

to the judges as a presumption of law, rather than to the jury as matter

of popular judgment, as the malice in the case of murder, the felony in

the case of stealing. If the intent and tendency are not matters within

the province of popular judgment, but legal and technical conclusions,

formed upon general principles of law, let us see what they are.

Certainly they are most unfavourable, indeed, totally adverse, to the

Constitution of this country.

Here we must have recourse to analogies, for we cannot argue on ruled

cases one way or the other. See the history. The old books, deficient

in general in Crown cases furnish us with little on this head. As to the

crime, in the very early Saxon Law, I see an offence of this species,

called Folk-leasing, made a capital offence, but no very precise

definition of the crime, and no trial at all: see the statute of 3rd

Edward I. cap. 34. The law of libels could not have arrived at a very

early period in this country. It is no wonder that we find no vestige of

any constitution from authority, or of any deductions from legal science

in our old books and records upon that subject. The statute of

_scandalum magnatum_ is the oldest that I know, and this goes but a

little way in this sort of learning. Libelling is not the crime of an

illiterate people. When they were thought no mean clerks who could read

and write, when he who could read and write was presumptively a person in

holy orders, libels could not be general or dangerous; and scandals

merely oral could spread little, and must perish soon. It is writing, it

is printing more emphatically, that imps calumny with those eagle wings,

on which, as the poet says, "immortal slanders fly." By the press they

spread, they last, they leave the sting in the wound. Printing was not

known in England much earlier than the reign of Henry VII., and in the

third year of that reign the Court of Star Chamber was established. The

press and its enemy are nearly coeval. As no positive law against libels

existed, they fell under the indefinite class of misdemeanours. For the

trial of misdemeanours that court was instituted, their tendency to

produce riots and disorders was a main part of the charge, and was laid,

in order to give the court jurisdiction chiefly against libels. The

offence was new. Learning of their own upon the subject they had none,

and they were obliged to resort to the only emporium where it was to be

had, the Roman Law. After the Star Chamber was abolished in the 10th of

Charles I. its authority indeed ceased, but its maxims subsisted and

survived it. The spirit of the Star Chamber has transmigrated and lived

again, and Westminster Hall was obliged to borrow from the Star Chamber,

for the same reasons as the Star Chamber had borrowed from the Roman

Forum, because they had no law, statute, or tradition of their own. Thus

the Roman Law took possession of our courts, I mean its doctrine, not its

sanctions; the severity of capital punishment was omitted, all the rest

remained. The grounds of these laws are just and equitable. Undoubtedly

the good fame of every man ought to be under the protection of the laws

as well as his life, and liberty, and property. Good fame is an outwork,

that defends them all, and renders them all valuable. The law forbids

you to revenge; when it ties up the hands of some, it ought to restrain

the tongues of others. The good fame of government is the same, it ought

not to be traduced. This is necessary in all government, and if opinion

be support, what takes away this destroys that support; but the liberty

of the press is necessary to this government.

The wisdom, however, of government is of more importance than the laws. I

should study the temper of the people before I ventured on actions of

this kind. I would consider the whole of the prosecution of a libel of

such importance as Junius, as one piece, as one consistent plan of

operations; and I would contrive it so that, if I were defeated, I should

not be disgraced; that even my victory should not be more ignominious

than my defeat; I would so manage, that the lowest in the predicament of

guilt should not be the only one in punishment. I would not inform

against the mere vender of a collection of pamphlets. I would not put

him to trial first, if I could possibly avoid it. I would rather stand

the consequences of my first error, than carry it to a judgment that must

disgrace my prosecution, or the court. We ought to examine these things

in a manner which becomes ourselves, and becomes the object of the

inquiry; not to examine into the most important consideration which can

come before us, with minds heated with prejudice and filled with

passions, with vain popular opinions and humours, and when we propose to

examine into the justice of others, to be unjust ourselves.

An inquiry is wished, as the most effectual way of putting an end to the

clamours and libels, which are the disorder and disgrace of the times.

For people remain quiet, they sleep secure, when they imagine that the

vigilant eye of a censorial magistrate watches over all the proceedings

of judicature, and that the sacred fire of an eternal constitutional

jealousy, which is the guardian of liberty, law, and justice, is alive

night and day, and burning in this house. But when the magistrate gives

up his office and his duty, the people assume it, and they inquire too

much, and too irreverently, because they think their representatives do

not inquire at all.

We have in a libel, 1st. The writing. 2nd. The communication, called

by the lawyers the publication. 3rd. The application to persons and

facts. 4th. The intent and tendency. 5th. The matter--diminution of

fame. The law presumptions on all these are in the communication. No

intent can, make a defamatory publication good, nothing can make it have

a good tendency; truth is not pleadable. Taken juridically, the

foundation of these law presumptions is not unjust; taken

constitutionally, they are ruinous, and tend to the total suppression of

all publication. If juries are confined to the fact, no writing which

censures, however justly, or however temperately, the conduct of

administration, can be unpunished. Therefore, if the intent and tendency

be left to the judge, as legal conclusions growing from the fact, you may

depend upon it you can have no public discussion of a public measure,

which is a point which even those who are most offended with the

licentiousness of the press (and it is very exorbitant, very provoking)

will hardly contend for.

So far as to the first opinion, that the doctrine is right and needs no

alteration. 2nd. The next is, that it is wrong, but that we are not in a

condition to help it. I admit, it is true, that there are cases of a

nature so delicate and complicated, that an Act of Parliament on the

subject may become a matter of great difficulty. It sometimes cannot

define with exactness, because the subject-matter will not bear an exact

definition. It may seem to take away everything which it does not

positively establish, and this might be inconvenient; or it may seem

_vice versa_ to establish everything which it does not expressly take

away. It may be more advisable to leave such matters to the enlightened

discretion of a judge, awed by a censorial House of Commons. But then it

rests upon those who object to a legislative interposition to prove these

inconveniences in the particular case before them. For it would be a

most dangerous, as it is a most idle and most groundless, conceit to

assume as a general principle, that the rights and liberties of the

subject are impaired by the care and attention of the legislature to

secure them. If so, very ill would the purchase of Magna Charta have

merited the deluge of blood, which was shed in order to have the body of

English privileges defined by a positive written law. This charter, the

inestimable monument of English freedom, so long the boast and glory of

this nation, would have been at once an instrument of our servitude, and

a monument of our folly, if this principle were true. The thirty four

confirmations would have been only so many repetitions of their

absurdity, so many new links in the chain, and so many invalidations of

their right.

You cannot open your statute book without seeing positive provisions

relative to every right of the subject. This business of juries is the

subject of not fewer than a dozen. To suppose that juries are something

innate in the Constitution of Great Britain, that they have jumped, like

Minerva, out of the head of Jove in complete armour, is a weak fancy,

supported neither by precedent nor by reason. Whatever is most ancient

and venerable in our Constitution, royal prerogative, privileges of

parliament, rights of elections, authority of courts, juries, must have

been modelled according to the occasion. I spare your patience, and I

pay a compliment to your understanding, in not attempting to prove that

anything so elaborate and artificial as a jury was not the work of

chance, but a matter of institution, brought to its present state by the

joint efforts of legislative authority and juridical prudence. It need

not be ashamed of being (what in many parts of it at least it is) the

offspring of an Act of Parliament, unless it is a shame for our laws to

be the results of our legislature. Juries, which sensitively shrank from

the rude touch of parliamentary remedy, have been the subject of not

fewer than, I think, forty-three Acts of Parliament, in which they have

been changed with all the authority of a creator over its creature, from

Magna Charta to the great alterations which were made in the 29th of

George II.

To talk of this matter in any other way is to turn a rational principle

into an idle and vulgar superstition, like the antiquary, Dr. Woodward,

who trembled to have his shield scoured, for fear it should be discovered

to be no better than an old pot-lid. This species of tenderness to a

jury puts me in mind of a gentleman of good condition, who had been

reduced to great poverty and distress; application was made to some rich

fellows in his neighbourhood to give him some assistance; but they begged

to be excused for fear of affronting a person of his high birth; and so

the poor gentleman was left to starve out of pure respect to the

antiquity of his family. From this principle has risen an opinion that I

find current amongst gentlemen, that this distemper ought to be left to

cure itself; that the judges having been well exposed, and something

terrified on account of these clamours, will entirely change, if not very

much relax from their rigour; if the present race should not change, that

the chances of succession may put other more constitutional judges in

their place; lastly, if neither should happen, yet that the spirit of an

English jury will always be sufficient for the vindication of its own

rights, and will not suffer itself to be overborne by the bench. I

confess that I totally dissent from all these opinions. These

suppositions become the strongest reasons with me to evince the necessity

of some clear and positive settlement of this question of contested

jurisdiction. If judges are so full of levity, so full of timidity, if

they are influenced by such mean and unworthy passions, that a popular

clamour is sufficient to shake the resolution they build upon the solid

basis of a legal principle, I would endeavour to fix that mercury by a

positive law. If to please an administration the judges can go one way

to-day, and to please the crowd they can go another to-morrow; if they

will oscillate backward and forward between power and popularity, it is

high time to fix the law in such a manner as to resemble, as it ought,

the great Author of all law, in "whom there is no variableness nor shadow

of turning."

As to their succession, I have just the same opinion. I would not leave

it to the chances of promotion, or to the characters of lawyers, what the

law of the land, what the rights of juries, or what the liberty of the

press should be. My law should not depend upon the fluctuation of the

closet, or the complexion of men. Whether a black-haired man or a fair-

haired man presided in the Court of King's Bench, I would have the law

the same: the same whether he was born in _domo regnatrice_, and sucked

from his infancy the milk of courts, or was nurtured in the rugged

discipline of a popular opposition. This law of court cabal and of

party, this _mens quaedam nullo perturbata affectu_, this law of

complexion, ought not to be endured for a moment in a country whose being

depends upon the certainty, clearness, and stability of institutions.

Now I come to the last substitute for the proposed bill, the spirit of

juries operating their own jurisdiction. This, I confess, I think the

worst of all, for the same reasons on which I objected to the others, and

for other weighty reasons besides which are separate and distinct. First,

because juries, being taken at random out of a mass of men infinitely

large, must be of characters as various as the body they arise from is

large in its extent. If the judges differ in their complexions, much

more will a jury. A timid jury will give way to an awful judge

delivering oracularly the law, and charging them on their oaths, and

putting it home to their consciences, to beware of judging where the law

had given them no competence. We know that they will do so, they have

done so in a hundred instances; a respectable member of your own house,

no vulgar man, tells you that on the authority of a judge he found a man

guilty, in whom, at the same time, he could find no guilt. But supposing

them full of knowledge and full of manly confidence in themselves, how

will their knowledge, or their confidence, inform or inspirit others?

They give no reason for their verdict, they can but condemn or acquit;

and no man can tell the motives on which they have acquitted or

condemned. So that this hope of the power of juries to assert their own

jurisdiction must be a principle blind, as being without reason, and as

changeable as the complexion of men and the temper of the times.

But, after all, is it fit that this dishonourable contention between the

court and juries should subsist any longer? On what principle is it that

a jury refuses to be directed by the court as to his competence? Whether

a libel or no libel be a question of law or of fact may be doubted, but a

question of jurisdiction and competence is certainly a question of law;

on this the court ought undoubtedly to judge, and to judge solely and

exclusively. If they judge wrong from excusable error, you ought to

correct it, as to-day it is proposed, by an explanatory bill; or if by

corruption, by bill of penalties declaratory, and by punishment. What

does a juror say to a judge when he refuses his opinion upon a question

of judicature? You are so corrupt, that I should consider myself a

partaker of your crime, were I to be guided by your opinion; or you are

so grossly ignorant, that I, fresh from my bounds, from my plough, my

counter, or my loom, am fit to direct you in your profession. This is an

unfitting, it is a dangerous, state of things. The spirit of any sort of

men is not a fit rule for deciding on the bounds of their jurisdiction.

First, because it is different in different men, and even different in

the same at different times; and can never become the proper directing

line of law; next, because it is not reason, but feeling; and when once

it is irritated, it is not apt to confine itself within its proper

limits. If it becomes, not difference in opinion upon law, but a trial

of spirit between parties, our courts of law are no longer the temple of

justice, but the amphitheatre for gladiators. No--God forbid! Juries

ought to take their law from the bench only; but it is our business that

they should hear nothing from the bench but what is agreeable to the

principles of the Constitution. The jury are to hear the judge, the

judge is to hear the law where it speaks plain; where it does not, he is

to hear the legislature. As I do not think these opinions of the judges

to be agreeable to those principles, I wish to take the only method in

which they can or ought to be corrected, by bill.

Next, my opinion is, that it ought to be rather by a bill for removing

controversies than by a bill in the state of manifest and express

declaration, and in words _de praeterito_. I do this upon reasons of

equity and constitutional policy. I do not want to censure the present

judges. I think them to be excused for their error. Ignorance is no

excuse for a judge: it is changing the nature of his crime--it is not

absolving. It must be such error as a wise and conscientious judge may

possibly fall into, and must arise from one or both these causes: first,

a plausible principle of law; secondly, the precedents of respectable

authorities, and in good times. In the first, the principle of law, that

the judge is to decide on law, the jury to decide on fact, is an ancient

and venerable principle and maxim of the law, and if supported in this

application by precedents of good times and of good men, the judge, if

wrong, ought to be corrected; he ought not to be reproved, or to be

disgraced, or the authority or respect to your tribunals to be impaired.

In cases in which declaratory bills have been made, where by violence and

corruption some fundamental part of the Constitution has been struck at;

where they would damn the principle, censure the persons, and annul the

acts; but where the law having been, by the accident of human frailty,

depraved, or in a particular instance misunderstood, where you neither

mean to rescind the acts, nor to censure the persons, in such cases you

have taken the explanatory mode, and, without condemning what is done,

you direct the future judgment of the court.

All bills for the reformation of the law must be according to the subject-

matter, the circumstances, and the occasion, and are of four kinds:--1.

Either the law is totally wanting, and then a new enacting statute must

be made to supply that want; or, 2. It is defective, then a new law must

be made to enforce it. 3. Or it is opposed by power or fraud, and then

an act must be made to declare it. 4 Or it is rendered doubtful and

controverted, and then a law must be made to explain it. These must be

applied according to the exigence of the case; one is just as good as

another of them. Miserable, indeed, would be the resources, poor and

unfurnished the stores and magazines of legislation, if we were bound up

to a little narrow form, and not able to frame our acts of parliament

according to every disposition of our own minds, and to every possible

emergency of the commonwealth; to make them declaratory, enforcing,

explanatory, repealing, just in what mode, or in what degree we please.

Those who think that the judges, living and dead, are to be condemned,

that your tribunals of justice are to be dishonoured, that their acts and

judgments on this business are to be rescinded, they will undoubtedly

vote against this bill, and for another sort.

I am not of the opinion of those gentlemen who are against disturbing the

public repose; I like a clamour whenever there is an abuse. The fire-

bell at midnight disturbs your sleep, but it keeps you from being burned

in your bed. The hue and cry alarms the county, but it preserves all the

property of the province. All these clamours aim at redress. But a

clamour made merely for the purpose of rendering the people discontented

with their situation, without an endeavour to give them a practical

remedy, is indeed one of the worst acts of sedition.

I have read and heard much upon the conduct of our courts in the business

of libels. I was extremely willing to enter into, and very free to act

as facts should turn out on that inquiry, aiming constantly at remedy as

the end of all clamour, all debate, all writing, and all inquiry; for

which reason I did embrace, and do now with joy, this method of giving

quiet to the courts, jurisdiction to juries, liberty to the press, and

satisfaction to the people. I thank my friends for what they have done;

I hope the public will one day reap the benefit of their pious and

judicious endeavours. They have now sown the seed; I hope they will live

to see the flourishing harvest. Their bill is sown in weakness; it will,

I trust, be reaped in power; and then, however, we shall have reason to

apply to them what my Lord Coke says was an aphorism continually in the

mouth of a great sage of the law, "Blessed be not the complaining tongue,

but blessed be the amending hand."