Volume I Part 24 (1/2)
By this plan several important ends are answered to the cabal. If the authority of Parliament supports itself, the credit of every act of government, which they contrive, is saved; but if the act be so very odious that the whole strength of Parliament is insufficient to recommend it, then Parliament is itself discredited; and this discredit increases more and more that indifference to the const.i.tution, which it is the constant aim of its enemies, by their abuse of Parliamentary powers, to render general among the people. Whenever Parliament is persuaded to a.s.sume the offices of executive government, it will lose all the confidence, love, and veneration, which it has ever enjoyed whilst it was supposed the _corrective and control_ of the acting powers of the state. This would be the event, though its conduct in such a perversion of its functions should be tolerably just and moderate; but if it should be iniquitous, violent, full of pa.s.sion, and full of faction, it would be considered as the most intolerable of all the modes of tyranny.
For a considerable time this separation of the representatives from their const.i.tuents went on with a silent progress; and had those, who conducted the plan for their total separation, been persons of temper and abilities any way equal to the magnitude of their design, the success would have been infallible: but by their precipitancy they have laid it open in all its nakedness; the nation is alarmed at it: and the event may not be pleasant to the contrivers of the scheme. In the last session, the corps called the _king's friends_ made a hardy attempt, all at once, _to alter the right of election itself_; to put it into the power of the House of Commons to disable any person disagreeable to them from sitting in Parliament, without any other rule than their own pleasure; to make incapacities, either general for descriptions of men, or particular for individuals; and to take into their body, persons who avowedly had never been chosen by the majority of legal electors, nor agreeably to any known rule of law.
The arguments upon which this claim was founded and combated, are not my business here. Never has a subject been more amply and more learnedly handled, nor upon one side, in my opinion, more satisfactorily; they who are not convinced by what is already written would not receive conviction _though, one arose from the dead_.
I too have thought on this subject: but my purpose here, is only to consider it as a part of the favorite project of government; to observe on the motives which led to it; and to trace its political consequences.
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 favor. 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 princ.i.p.al 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 favor of the people was not so sure a road as the favor of the court even to popular honors 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 favors 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 unfavorable 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 exorbitances, 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. Whilst any errors committed in support of power were left to the law, with every advantage of favorable construction, of mitigation, and finally of pardon; all excesses on the side of liberty, or in pursuit of popular favor, or in defence of popular rights and privileges, were not only to be punished by the rigor 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 favor 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 punis.h.i.+ng the offence in the offending part. Until this time, the opinion of the people, through the power of an a.s.sembly, still in some sort popular, led to the greatest honors and emoluments in the gift of the crown. Now the principle is reversed; and the favor of the court is the only sure way of obtaining and holding those honors 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 concerting 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, a.s.serting 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 const.i.tuted, 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 crus.h.i.+ng 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 punis.h.i.+ng 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 pa.s.sed without notice; that the most treasonable invectives against the laws, liberties, and const.i.tution of the country, have not met with the slightest animadversion; I must consider this as a shocking and shameless pretence. Never did an envenomed scurrility against everything sacred and civil, public and private, rage through the kingdom with such a furious and unbridled license. All this while the peace of the nation must be shaken, to ruin one libeller, and to tear from the populace a single favorite.
Nor is it that vice merely skulks in an obscure and contemptible impunity. Does not the public behold with indignation, persons not only generally scandalous in their lives, but the identical persons who, by their society, their instruction, their example, their encouragement, have drawn this man into the very faults which have furnished the cabal with a pretence for his persecution, loaded with every kind of favor, honor, and distinction, which a court can bestow? Add but the crime of servility (the _foedum crimen servitutis_) to every other crime, and the whole ma.s.s is immediately trans.m.u.ted into virtue, and becomes the just subject of reward and honor. When therefore I reflect upon this method pursued by the cabal in distributing rewards and punishments, I must conclude that Mr. Wilkes is the object of persecution, not on account of what he has done in common with others who are the objects of reward, but for that in which he differs from many of them: that he is pursued for the spirited dispositions which are blended with his vices; for his unconquerable firmness, for his resolute, indefatigable, strenuous resistance against oppression.
In this case, therefore, it was not the man that was to be punished, nor his faults that were to be discountenanced. Opposition to acts of power was to be marked by a kind of civil proscription. The popularity which should arise from such an opposition was to be shown unable to protect it. The qualities by which court is made to the people, were to render every fault inexpiable, and every error irretrievable. The qualities by which court is made to power, were to cover and to sanctify everything.
He that will have a sure and honorable seat in the House of Commons must take care how he adventures to cultivate popular qualities; otherwise he may remember the old maxim, _Breves et infaustos populi Romani amores_.
If, therefore, a pursuit of popularity expose a man to greater dangers than a disposition to servility, the principle which is the life and soul of popular elections will perish out of the const.i.tution.
It behoves the people of England to consider how the House of Commons, under the operation of these examples, must of necessity be const.i.tuted.
On the side of the court will be, all honors, offices, emoluments; every sort of personal gratification to avarice or vanity; and, what is of more moment to most gentlemen, the means of growing, by innumerable petty services to individuals, into a spreading interest in their country. On the other hand, let us suppose a person unconnected with the court, and in opposition to its system. For his own person, no office, or emolument, or t.i.tle; no promotion, ecclesiastical, or civil, or military, or naval, for children, or brothers, or kindred. In vain an expiring interest in a borough calls for offices, or small livings, for the children of mayors, and aldermen, and capital burgesses. His court rival has them all. He can do an infinite number of acts of generosity and kindness, and even of public spirit. He can procure indemnity from quarters. He can procure advantages in trade. He can get pardons for offences. He can obtain a thousand favors, and avert a thousand evils.
He may, while he betrays every valuable interest of the kingdom, be a benefactor, a patron, a father, a guardian angel to his borough. The unfortunate independent member has nothing to offer, but harsh refusal, or pitiful excuse, or despondent representation of a hopeless interest.
Except from his private fortune, in which he may be equalled, perhaps exceeded, by his court compet.i.tor, he has no way of showing any one good quality, or of making a single friend. In the House, he votes forever in a dispirited minority. If he speaks, the doors are locked. A body of loquacious placemen go out to tell the world that all he aims at is to get into office. If he has not the talent of elocution, which is the case of many as wise and knowing men as any in the House, he is liable to all these inconveniences, without the _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 a.s.sured 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 const.i.tuents; and unless those const.i.tuents 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 a.s.sign 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 const.i.tution, 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 circ.u.mstance 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 Middles.e.x 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 Middles.e.x had not chosen. By a construction on that legislative power which had been a.s.sumed, 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 subst.i.tute a _t.i.tius_ 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 subst.i.tuted 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 coa.r.s.e texture. This was however suffered by the acquiescence of the whole kingdom, for ages; because the evasion of the old statute of Westminster, which authorized 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 fict.i.tious 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 burden. They are certainly in the right.
They ought not to trust the House of Commons with a power over their franchises; because the const.i.tution, 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 a 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 endeavor to obtain new advantages at the expense of the other orders of the state, for the benefit of the _commons at large_, have pursued strong measures; if it were not just, it was at least natural, that the const.i.tuents 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 aggrandizement and profit of their own body have always abused it: and I see no particular sanct.i.ty in our times, that is at all likely, by a miraculous operation, to overrule the course of nature.