Thoughts on the Present Discontents, and Speeches

So far I have considered the effect of the Court system, chiefly as it operates upon the executive Government, on the temper of the people and on the happiness of the Sovereign.  It remains that we should consider, with a little attention, its operation upon Parliament.

Parliament was indeed the great object of all these politics, the end at which they aimed, as well as the instrument by which they were to operate.  But, before Parliament could be made subservient to a system, by which it was to be degraded from the dignity of a national council, into a mere member of the Court, it must be greatly changed from its original character.

In speaking of this body, I have my eye chiefly on the House of Commons.  I hope I shall be indulged in a few observations on the nature and character of that assembly; not with regard to its legal form and power, but to its spirit, and to the purposes it is meant to answer in the constitution.

The House of Commons was supposed originally to be no part of the standing Government of this country.  It was considered as a control, issuing immediately from the people, and speedily to be resolved into the mass from whence it arose.  In this respect it was in the higher part of Government what juries are in the lower.  The capacity of a magistrate being transitory, and that of a citizen permanent, the latter capacity it was hoped would of course preponderate in all discussions, not only between the people and the standing authority of the Crown, but between the people and the fleeting authority of the House of Commons itself.  It was hoped that, being of a middle nature between subject and Government, they would feel with a more tender and a nearer interest everything that concerned the people, than the other remoter and more permanent parts of Legislature.

Whatever alterations time and the necessary accommodation of business may have introduced, this character can never be sustained, unless the House of Commons shall be made to bear some stamp of the actual disposition of the people at large.  It would (among public misfortunes) be an evil more natural and tolerable, that the House of Commons should be infected with every epidemical frenzy of the people, as this would indicate some consanguinity, some sympathy of nature with their constituents, than that they should in all cases be wholly untouched by the opinions and feelings of the people out of doors.  By this want of sympathy they would cease to be a House of Commons.  For it is not the derivation of the power of that House from the people, which makes it in a distinct sense their representative.  The King is the representative of the people; so are the Lords; so are the Judges.  They all are trustees for the people, as well as the Commons; because no power is given for the sole sake of the holder; and although Government certainly is an institution of Divine authority, yet its forms, and the persons who administer it, all originate from the people.

A popular origin cannot therefore be the characteristical distinction of a popular representative.  This belongs equally to all parts of Government, and in all forms.  The virtue, spirit, and essence of a House of Commons consists in its being the express image of the feelings of the nation.  It was not instituted to be a control upon the people, as of late it has been taught, by a doctrine of the most pernicious tendency.  It was designed as a control for the people.  Other institutions have been formed for the purpose of checking popular excesses; and they are, I apprehend, fully adequate to their object.  If not, they ought to be made so.  The House of Commons, as it was never intended for the support of peace and subordination, is miserably appointed for that service; having no stronger weapon than its Mace, and no better officer than its Serjeant-at-Arms, which it can command of its own proper authority.  A vigilant and jealous eye over executory and judicial magistracy; an anxious care of public money, an openness, approaching towards facility, to public complaint; these seem to be the true characteristics of a House of Commons.  But an addressing House of Commons, and a petitioning nation; a House of Commons full of confidence, when the nation is plunged in despair; in the utmost harmony with Ministers, whom the people regard with the utmost abhorrence; who vote thanks, when the public opinion calls upon them for impeachments; who are eager to grant, when the general voice demands account; who, in all disputes between the people and Administration, presume against the people; who punish their disorder, but refuse even to inquire into the provocations to them; this is an unnatural, a monstrous state of things in this constitution.  Such an Assembly may be a great, wise, awful senate; but it is not, to any popular purpose, a House of Commons.  This change from an immediate state of procuration and delegation to a course of acting as from original power, is the way in which all the popular magistracies in the world have been perverted from their purposes.  It is indeed their greatest and sometimes their incurable corruption.  For there is a material distinction between that corruption by which particular points are carried against reason (this is a thing which cannot be prevented by human wisdom, and is of less consequence), and the corruption of the principle itself.  For then the evil is not accidental, but settled.  The distemper becomes the natural habit.

For my part, I shall be compelled to conclude the principle of Parliament to be totally corrupted, and therefore its ends entirely defeated, when I see two symptoms: first, a rule of indiscriminate support to all Ministers; because this destroys the very end of Parliament as a control, and is a general previous sanction to misgovernment; and secondly, the setting up any claims adverse to the right of free election; for this tends to subvert the legal authority by which the House of Commons sits.

I know that, since the Revolution, along with many dangerous, many useful powers of Government have been weakened.  It is absolutely necessary to have frequent recourse to the Legislature.  Parliaments must therefore sit every year, and for great part of the year.  The dreadful disorders of frequent elections have also necessitated a septennial instead of a triennial duration.  These circumstances, I mean the constant habit of authority, and the infrequency of elections, have tended very much to draw the House of Commons towards the character of a standing Senate.  It is a disorder which has arisen from the cure of greater disorders; it has arisen from the extreme difficulty of reconciling liberty under a monarchical Government, with external strength and with internal tranquillity.

It is very clear that we cannot free ourselves entirely from this great inconvenience; but I would not increase an evil, because I was not able to remove it; and because it was not in my power to keep the House of Commons religiously true to its first principles, I would not argue for carrying it to a total oblivion of them.  This has been the great scheme of power in our time.  They who will not conform their conduct to the public good, and cannot support it by the prerogative of the Crown, have adopted a new plan.  They have totally abandoned the shattered and old-fashioned fortress of prerogative, and made a lodgment in the stronghold of Parliament itself.  If they have any evil design to which there is no ordinary legal power commensurate, they bring it into Parliament.  In Parliament the whole is executed from the beginning to the end.  In Parliament the power of obtaining their object is absolute, and the safety in the proceeding perfect: no rules to confine, no after reckonings to terrify.  Parliament cannot with any great propriety punish others for things in which they themselves have been accomplices.  Thus the control of Parliament upon the executory power is lost; because Parliament is made to partake in every considerable act of Government.  Impeachment, that great guardian of the purity of the Constitution, is in danger of being lost, even to the idea of it.

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 constitution, 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 assume 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 passion, 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 constituents 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 favourite 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 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.