Thoughts on the Present Discontents, and Speeches

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 versâ 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 quædam 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 præterito.  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.”

SPEECH ON A BILL FOR SHORTENING THE DURATION OF PARLIAMENTS

It is always to be lamented when men are driven to search into the foundations of the commonwealth.  It is certainly necessary to resort to the theory of your government whenever you propose any alteration in the frame of it, whether that alteration means the revival of some former antiquated and forsaken constitution of state, or the introduction of some new improvement in the commonwealth.  The object of our deliberation is, to promote the good purposes for which elections have been instituted, and to prevent their inconveniences.  If we thought frequent elections attended with no inconvenience, or with but a trifling inconvenience, the strong overruling principle of the Constitution would sweep us like a torrent towards them.  But your remedy is to be suited to your disease—your present disease, and to your whole disease.  That man thinks much too highly, and therefore he thinks weakly and delusively, of any contrivance of human wisdom, who believes that it can make any sort of approach to perfection.  There is not, there never was, a principle of government under heaven, that does not, in the very pursuit of the good it proposes, naturally and inevitably lead into some inconvenience, which makes it absolutely necessary to counterwork and weaken the application of that first principle itself; and to abandon something of the extent of the advantage you proposed by it, in order to prevent also the inconveniences which have arisen from the instrument of all the good you had in view.

To govern according to the sense and agreeably to the interests of the people is a great and glorious object of government.  This object cannot be obtained but through the medium of popular election, and popular election is a mighty evil.  It is such, and so great an evil, that though there are few nations whose monarchs were not originally elective, very few are now elected.  They are the distempers of elections, that have destroyed all free states.  To cure these distempers is difficult, if not impossible; the only thing therefore left to save the commonwealth is to prevent their return too frequently.  The objects in view are, to have parliaments as frequent as they can be without distracting them in the prosecution of public business; on one hand, to secure their dependence upon the people, on the other to give them that quiet in their minds, and that ease in their fortunes, as to enable them to perform the most arduous and most painful duty in the world with spirit, with efficiency, with independency, and with experience, as real public counsellors, not as the canvassers at a perpetual election.  It is wise to compass as many good ends as possibly you can, and seeing there are inconveniences on both sides, with benefits on both, to give up a part of the benefit to soften the inconvenience.  The perfect cure is impracticable, because the disorder is dear to those from whom alone the cure can possibly be derived.  The utmost to be done is to palliate, to mitigate, to respite, to put off the evil day of the Constitution to its latest possible hour, and may it be a very late one!

This bill, I fear, would precipitate one of two consequences, I know not which most likely, or which most dangerous: either that the Crown by its constant stated power, influence, and revenue, would wear out all opposition in elections, or that a violent and furious popular spirit would arise.  I must see, to satisfy me, the remedies; I must see, from their operation in the cure of the old evil, and in the cure of those new evils, which are inseparable from all remedies, how they balance each other, and what is the total result.  The excellence of mathematics and metaphysics is to have but one thing before you, but he forms the best judgment in all moral disquisitions, who has the greatest number and variety of considerations, in one view before him, and can take them in with the best possible consideration of the middle results of all.

We of the opposition, who are not friends to the bill, give this pledge at least of our integrity and sincerity to the people, that in our situation of systematic opposition to the present ministers, in which all our hope of rendering it effectual depends upon popular interest and favour, we will not flatter them by a surrender of our uninfluenced judgment and opinion; we give a security, that if ever we should be in another situation, no flattery to any other sort of power and influence would induce us to act against the true interests of the people.

All are agreed that parliaments should not be perpetual; the only question is, what is the most convenient time for their duration?  On which there are three opinions.  We are agreed, too, that the term ought not to be chosen most likely in its operation to spread corruption, and to augment the already overgrown influence of the crown.  On these principles I mean to debate the question.  It is easy to pretend a zeal for liberty.  Those who think themselves not likely to be encumbered with the performance of their promises, either from their known inability, or total indifference about the performance, never fail to entertain the most lofty ideas.  They are certainly the most specious, and they cost them neither reflection to frame, nor pains to modify, nor management to support.  The task is of another nature to those who mean to promise nothing that it is not in their intentions, or may possibly be in their power to perform; to those who are bound and principled no more to delude the understandings than to violate the liberty of their fellow-subjects.  Faithful watchmen we ought to be over the rights and privileges of the people.  But our duty, if we are qualified for it as we ought, is to give them information, and not to receive it from them; we are not to go to school to them to learn the principles of law and government.  In doing so we should not dutifully serve, but we should basely and scandalously betray, the people, who are not capable of this service by nature, nor in any instance called to it by the Constitution.  I reverentially look up to the opinion of the people, and with an awe that is almost superstitious.  I should be ashamed to show my face before them, if I changed my ground, as they cried up or cried down men, or things, or opinions; if I wavered and shifted about with every change, and joined in it, or opposed, as best answered any low interest or passion; if I held them up hopes, which I knew I never intended, or promised what I well knew I could not perform.  Of all these things they are perfect sovereign judges without appeal; but as to the detail of particular measures, or to any general schemes of policy, they have neither enough of speculation in the closet, nor of experience in business, to decide upon it.  They can well see whether we are tools of a court, or their honest servants.  Of that they can well judge; and I wish that they always exercised their judgment; but of the particular merits of a measure I have other standards.  That the frequency of elections proposed by this bill has a tendency to increase the power and consideration of the electors, not lessen corruptibility, I do most readily allow; so far as it is desirable, this is what it has; I will tell you now what it has not: 1st.  It has no sort of tendency to increase their integrity and public spirit, unless an increase of power has an operation upon voters in elections, that it has in no other situation in the world, and upon no other part of mankind. 2nd.  This bill has no tendency to limit the quantity of influence in the Crown, to render its operation more difficult, or to counteract that operation, which it cannot prevent, in any way whatsoever.  It has its full weight, its full range, and its uncontrolled operation on the electors exactly as it had before. 3rd.  Nor, thirdly, does it abate the interest or inclination of Ministers to apply that influence to the electors: on the contrary, it renders it much more necessary to them, if they seek to have a majority in parliament, to increase the means of that influence, and redouble their diligence, and to sharpen dexterity in the application.  The whole effect of the bill is therefore the removing the application of some part of the influence from the elected to the electors, and further to strengthen and extend a court interest already great and powerful in boroughs; here to fix their magazines and places of arms, and thus to make them the principal, not the secondary, theatre of their manoeuvres for securing a determined majority in parliament.

I believe nobody will deny that the electors are corruptible.  They are men; it is saying nothing worse of them; many of them are but ill-informed in their minds, many feeble in their circumstances, easily over-reached, easily seduced.  If they are many, the wages of corruption are the lower; and would to God it were not rather a contemptible and hypocritical adulation than a charitable sentiment, to say that there is already no debauchery, no corruption, no bribery, no perjury, no blind fury, and interested faction among the electors in many parts of this kingdom: nor is it surprising, or at all blamable, in that class of private men, when they see their neighbours aggrandised, and themselves poor and virtuous, without that éclat or dignity which attends men in higher stations.

But admit it were true that the great mass of the electors were too vast an object for court influence to grasp, or extend to, and that in despair they must abandon it; he must be very ignorant of the state of every popular interest, who does not know that in all the corporations, all the open boroughs—indeed, in every district of the kingdom—there is some leading man, some agitator, some wealthy merchant, or considerable manufacturer, some active attorney, some popular preacher, some money-lender, &c., &c., who is followed by the whole flock.  This is the style of all free countries.

—Multùm in Fabiâ valet hic, valet ille Velinâ;
Cuilibet hic fasces dabit eripietque curule.

These spirits, each of which informs and governs his own little orb, are neither so many, nor so little powerful, nor so incorruptible, but that a Minister may, as he does frequently, find means of gaining them, and through them all their followers.  To establish, therefore, a very general influence among electors will no more be found an impracticable project, than to gain an undue influence over members of parliament.  Therefore I am apprehensive that this bill, though it shifts the place of the disorder, does by no means relieve the Constitution.  I went through almost every contested election in the beginning of this parliament, and acted as a manager in very many of them: by which, though at a school of pretty severe and ragged discipline, I came to have some degree of instruction concerning the means by which parliamentary interests are in general procured and supported.

Theory, I know, would suppose, that every general election is to the representative a day of judgment, in which he appears before his constituents to account for the use of the talent with which they entrusted him, and of the improvement he had made of it for the public advantage.  It would be so, if every corruptible representative were to find an enlightened and incorruptible constituent.  But the practice and knowledge of the world will not suffer us to be ignorant, that the Constitution on paper is one thing, and in fact and experience is another.  We must know that the candidate, instead of trusting at his election to the testimony of his behaviour in parliament, must bring the testimony of a large sum of money, the capacity of liberal expense in entertainments, the power of serving and obliging the rulers of corporations, of winning over the popular leaders of political clubs, associations, and neighbourhoods.  It is ten thousand times more necessary to show himself a man of power, than a man of integrity, in almost all the elections with which I have been acquainted.  Elections, therefore, become a matter of heavy expense; and if contests are frequent, to many they will become a matter of an expense totally ruinous, which no fortunes can bear; but least of all the landed fortunes, encumbered as they often, indeed as they mostly are, with debts, with portions, with jointures; and tied up in the hands of the possessor by the limitations of settlement.  It is a material, it is in my opinion a lasting, consideration, in all the questions concerning election.  Let no one think the charges of election a trivial matter.

The charge, therefore, of elections ought never to be lost sight of, in a question concerning their frequency, because the grand object you seek is independence.  Independence of mind will ever be more or less influenced by independence of fortune; and if, every three years, the exhausting sluices of entertainments, drinkings, open houses, to say nothing of bribery, are to be periodically drawn up and renewed—if government favours, for which now, in some shape or other, the whole race of men are candidates, are to be called for upon every occasion, I see that private fortunes will be washed away, and every, even to the least, trace of independence, borne down by the torrent.  I do not seriously think this Constitution, even to the wrecks of it, could survive five triennial elections.  If you are to fight the battle, you must put on the armour of the Ministry; you must call in the public, to the aid of private, money.  The expense of the last election has been computed (and I am persuaded that it has not been overrated) at £1,500,000; three shillings in the pound more on the Land Tax.  About the close of the last Parliament, and the beginning of this, several agents for boroughs went about, and I remember well that it was in every one of their mouths—“Sir, your election will cost you three thousand pounds, if you are independent; but if the Ministry supports you, it may be done for two, and perhaps for less;” and, indeed, the thing spoke itself.  Where a living was to be got for one, a commission in the army for another, a post in the navy for a third, and Custom-house offices scattered about without measure or number, who doubts but money may be saved?  The Treasury may even add money; but, indeed, it is superfluous.  A gentleman of two thousand a year, who meets another of the same fortune, fights with equal arms; but if to one of the candidates you add a thousand a year in places for himself, and a power of giving away as much among others, one must, or there is no truth in arithmetical demonstration, ruin his adversary, if he is to meet him and to fight with him every third year.  It will be said, I do not allow for the operation of character; but I do; and I know it will have its weight in most elections; perhaps it may be decisive in some.  But there are few in which it will prevent great expenses.

The destruction of independent fortunes will be the consequence on the part of the candidate.  What will be the consequence of triennial corruption, triennial drunkenness, triennial idleness, triennial law-suits, litigations, prosecutions, triennial frenzy; of society dissolved, industry interrupted, ruined; of those personal hatreds that will never be suffered to soften; those animosities and feuds, which will be rendered immortal; those quarrels, which are never to be appeased; morals vitiated and gangrened to the vitals?  I think no stable and useful advantages were ever made by the money got at elections by the voter, but all he gets is doubly lost to the public; it is money given to diminish the general stock of the community, which is the industry of the subject.  I am sure that it is a good while before he or his family settle again to their business.  Their heads will never cool; the temptations of elections will be for ever glittering before their eyes.  They will all grow politicians; every one, quitting his business, will choose to enrich himself by his vote.  They will take the gauging-rod; new places will be made for them; they will run to the Custom-house quay, their looms and ploughs will be deserted.

So was Rome destroyed by the disorders of continual elections, though those of Rome were sober disorders.  They had nothing but faction, bribery, bread, and stage plays to debauch them.  We have the inflammation of liquor superadded, a fury hotter than any of them.  There the contest was only between citizen and citizen; here you have the contests of ambitious citizens on one side, supported by the Crown, to oppose to the efforts (let it be so) of private and unsupported ambition on the other.  Yet Rome was destroyed by the frequency and charge of elections, and the monstrous expense of an unremitted courtship to the people.  I think, therefore, the independent candidate and elector may each be destroyed by it, the whole body of the community be an infinite sufferer, and a vicious Ministry the only gainer.  Gentlemen, I know, feel the weight of this argument; they agree that this would be the consequence of more frequent elections, if things were to continue as they are.  But they think the greatness and frequency of the evil would itself be a remedy for it; that, sitting but for a short time, the member would not find it worth while to make such vast expenses, while the fear of their constituents will hold them the more effectually to their duty.

To this I answer, that experience is full against them.  This is no new thing; we have had triennial parliaments; at no period of time were seats more eagerly contested.  The expenses of elections ran higher, taking the state of all charges, than they do now.  The expense of entertainments was such, that an Act, equally severe and ineffectual, was made against it; every monument of the time bears witness of the expense, and most of the Acts against corruption in elections were then made; all the writers talked of it and lamented it.  Will any one think that a corporation will be contented with a bowl of punch, or a piece of beef the less, because elections are every three, instead of every seven years?  Will they change their wine for ale, because they are to get more ale three years hence?  Do not think it.  Will they make fewer demands for the advantages of patronage in favours and offices, because their member is brought more under their power?  We have not only our own historical experience in England upon this subject, but we have the experience co-existing with us in Ireland, where, since their Parliament has been shortened, the expense of elections has been so far from being lowered that it has been very near doubled.  Formerly they sat for the king’s life; the ordinary charge of a seat in Parliament was then £1,500.  They now sit eight years, four sessions: it is now £2,500 and upwards.  The spirit of emulation has also been extremely increased, and all who are acquainted with the tone of that country have no doubt that the spirit is still growing, that new candidates will take the field, that the contests will be more violent, and the expenses of elections larger than ever.

It never can be otherwise.  A seat in this House, for good purposes, for bad purposes, for no purpose at all (except the mere consideration derived from being concerned in the public councils) will ever be a first-rate object of ambition in England.  Ambition is no exact calculator.  Avarice itself does not calculate strictly when it games.  One thing is certain, that in this political game the great lottery of power is that into which men will purchase with millions of chances against them.  In Turkey, where the place, where the fortune, where the head itself, are so insecure, that scarcely any have died in their beds for ages, so that the bowstring is the natural death of Bashaws, yet in no country is power and distinction (precarious enough, God knows, in all) sought for with such boundless avidity, as if the value of place was enhanced by the danger and insecurity of its tenure.  Nothing will ever make a seat in this House not an object of desire to numbers by any means or at any charge, but the depriving it of all power and all dignity.  This would do it.  This is the true and only nostrum for that purpose.  But a House of Commons without power and without dignity, either in itself or its members, is no House of Commons for the purposes of this Constitution.

But they will be afraid to act ill, if they know that the day of their account is always near.  I wish it were true, but it is not; here again we have experience, and experience is against us.  The distemper of this age is a poverty of spirit and of genius; it is trifling, it is futile, worse than ignorant, superficially taught, with the politics and morals of girls at a boarding-school, rather than of men and statesmen; but it is not yet desperately wicked, or so scandalously venal as in former times.  Did not a triennial parliament give up the national dignity, approve the Peace of Utrecht, and almost give up everything else in taking every step to defeat the Protestant succession?  Was not the Constitution saved by those who had no election at all to go to, the Lords, because the Court applied to electors, and by various means carried them from their true interests; so that the Tory Ministry had a majority without an application to a single member?  Now, as to the conduct of the members, it was then far from pure and independent.  Bribery was infinitely more flagrant.  A predecessor of yours, Mr. Speaker, put the question of his own expulsion for bribery.  Sir William Musgrave was a wise man, a grave man, an independent man, a man of good fortune and good family; however, he carried on while in opposition a traffic, a shameful traffic with the Ministry.  Bishop Burnet knew of £6,000 which he had received at one payment.  I believe the payment of sums in hard money—plain, naked bribery—is rare amongst us.  It was then far from uncommon.

A triennial was near ruining, a septennial parliament saved, your Constitution; nor perhaps have you ever known a more flourishing period for the union of national prosperity, dignity, and liberty, than the sixty years you have passed under that Constitution of parliament.

The shortness of time, in which they are to reap the profits of iniquity, is far from checking the avidity of corrupt men; it renders them infinitely more ravenous.  They rush violently and precipitately on their object, they lose all regard to decorum.  The moments of profit are precious; never are men so wicked as during a general mortality.  It was so in the great plague at Athens, every symptom of which (and this its worst amongst the rest) is so finely related by a great historian of antiquity.  It was so in the plague of London in 1665.  It appears in soldiers, sailors, &c.  Whoever would contrive to render the life of man much shorter than it is, would, I am satisfied, find the surest recipe for increasing the wickedness of our nature.

Thus, in my opinion, the shortness of a triennial sitting would have the following ill effects:—It would make the member more shamelessly and shockingly corrupt, it would increase his dependence on those who could best support him at his election, it would wrack and tear to pieces the fortunes of those who stood upon their own fortunes and their private interest, it would make the electors infinitely more venal, and it would make the whole body of the people, who are, whether they have votes or not, concerned in elections, more lawless, more idle, more debauched; it would utterly destroy the sobriety, the industry, the integrity, the simplicity of all the people, and undermine, I am much afraid, the deepest and best laid foundations of the commonwealth.

Those who have spoken and written upon this subject without doors, do not so much deny the probable existence of these inconveniences in their measure, as they trust for the prevention to remedies of various sorts, which they propose.  First, a place bill; but if this will not do, as they fear it will not, then, they say, we will have a rotation, and a certain number of you shall be rendered incapable of being elected for ten years.  Then, for the electors, they shall ballot; the members of parliament also shall decide by ballot; and a fifth project is the change of the present legal representation of the kingdom.  On all this I shall observe, that it will be very unsuitable to your wisdom to adopt the project of a bill, to which there are objections insuperable by anything in the bill itself, upon the hope that those objections may be removed by subsequent projects; every one of which is full of difficulties of its own, and which are all of them very essential alterations in the Constitution.  This seems very irregular and unusual.  If anything should make this a very doubtful measure, what can make it more so than that, in the opinion of its advocates, it would aggravate all our old inconveniences in such a manner as to require a total alteration in the Constitution of the kingdom?  If the remedies are proper in a triennial, they will not be less so in septennial elections; let us try them first, see how the House relishes them, see how they will operate in the nation; and then, having felt your way, you will be prepared against these inconveniences.

The honourable gentleman sees that I respect the principle upon which he goes, as well as his intentions and his abilities.  He will believe that I do not differ from him wantonly, and on trivial grounds.  He is very sure that it was not his embracing one way which determined me to take the other.  I have not, in newspapers, to derogate from his fair fame with the nation, printed the first rude sketch of his bill with ungenerous and invidious comments.  I have not, in conversations industriously circulated about the town, and talked on the benches of this House, attributed his conduct to motives low and unworthy, and as groundless as they are injurious.  I do not affect to be frightened with this proposition, as if some hideous spectre had started from hell, which was to be sent back again by every form of exorcism, and every kind of incantation.  I invoke no Acheron to overwhelm him in the whirlpools of his muddy gulf.  I do not tell the respectable mover and seconder, by a perversion of their sense and expressions, that their proposition halts between the ridiculous and the dangerous.  I am not one of those who start up three at a time, and fall upon and strike at him with so much eagerness, that our daggers hack one another in his sides.  My honourable friend has not brought down a spirited imp of chivalry, to win the first achievement and blazon of arms on his milk-white shield in a field listed against him, nor brought out the generous offspring of lions, and said to them, “Not against that side of the forest, beware of that—here is the prey where you are to fasten your paws;” and seasoning his unpractised jaws with blood, tell him, “This is the milk for which you are to thirst hereafter.”  We furnish at his expense no holiday, nor suspend hell that a crafty Ixion may have rest from his wheel; nor give the common adversary, if he be a common adversary, reason to say, “I would have put in my word to oppose, but the eagerness of your allies in your social war was such that I could not break in upon you.”  I hope he sees and feels, and that every member sees and feels along with him, the difference between amicable dissent and civil discord.

SPEECH ON REFORM OF REPRESENTATION IN THE HOUSE OF COMMONS

June, 1784

Mr. Speaker,—We have now discovered, at the close of the eighteenth century, that the Constitution of England, which for a series of ages had been the proud distinction of this country, always the admiration, and sometimes the envy, of the wise and learned in every other nation—we have discovered that this boasted Constitution, in the most boasted part of it, is a gross imposition upon the understanding of mankind, an insult to their feelings, and acting by contrivances destructive to the best and most valuable interests of the people.  Our political architects have taken a survey of the fabric of the British Constitution.  It is singular that they report nothing against the Crown, nothing against the Lords; but in the House of Commons everything is unsound; it is ruinous in every part.  It is infested by the dry rot, and ready to tumble about our ears without their immediate help.  You know by the faults they find what are their ideas of the alteration.  As all government stands upon opinion, they know that the way utterly to destroy it is to remove that opinion, to take away all reverence, all confidence from it; and then, at the first blast of public discontent and popular tumult, it tumbles to the ground.

In considering this question, they who oppose it, oppose it on different grounds; one is in the nature of a previous question—that some alterations may be expedient, but that this is not the time for making them.  The other is, that no essential alterations are at all wanting, and that neither now, nor at any time, is it prudent or safe to be meddling with the fundamental principles and ancient tried usages of our Constitution—that our representation is as nearly perfect as the necessary imperfection of human affairs and of human creatures will suffer it to be; and that it is a subject of prudent and honest use and thankful enjoyment, and not of captious criticism and rash experiment.

On the other side, there are two parties, who proceed on two grounds—in my opinion, as they state them, utterly irreconcilable.  The one is juridical, the other political.  The one is in the nature of a claim of right, on the supposed rights of man as man; this party desire the decision of a suit.  The other ground, as far as I can divine what it directly means, is, that the representation is not so politically framed as to answer the theory of its institution.  As to the claim of right, the meanest petitioner, the most gross and ignorant, is as good as the best; in some respects his claim is more favourable on account of his ignorance; his weakness, his poverty and distress only add to his titles; he sues in formâ pauperis: he ought to be a favourite of the Court.  But when the other ground is taken, when the question is political, when a new Constitution is to be made on a sound theory of government, then the presumptuous pride of didactic ignorance is to be excluded from the council in this high and arduous matter, which often bids defiance to the experience of the wisest.  The first claims a personal representation; the latter rejects it with scorn and fervour.  The language of the first party is plain and intelligible; they who plead an absolute right, cannot be satisfied with anything short of personal representation, because all natural rights must be the rights of individuals: as by nature there is no such thing as politic or corporate personality; all these ideas are mere fictions of law, they are creatures of voluntary institution; men as men are individuals, and nothing else.  They, therefore, who reject the principle of natural and personal representation, are essentially and eternally at variance with those who claim it.  As to the first sort of reformers, it is ridiculous to talk to them of the British Constitution upon any or all of its bases; for they lay it down, that every man ought to govern himself, and that where he cannot go himself he must send his representative; that all other government is usurpation, and is so far from having a claim to our obedience, that it is not only our right, but our duty, to resist it.  Nine-tenths of the reformers argue thus—that is, on the natural right.  It is impossible not to make some reflection on the nature of this claim, or avoid a comparison between the extent of the principle and the present object of the demand.  If this claim be founded, it is clear to what it goes.  The House of Commons, in that light, undoubtedly is no representative of the people as a collection of individuals.  Nobody pretends it, nobody can justify such an assertion.  When you come to examine into this claim of right, founded on the right of self-government in each individual, you find the thing demanded infinitely short of the principle of the demand.  What! one-third only of the legislature, of the government no share at all?  What sort of treaty of partition is this for those who have no inherent right to the whole?  Give them all they ask, and your grant is still a cheat; for how comes only a third to be their younger children’s fortune in this settlement?  How came they neither to have the choice of kings, or lords, or judges, or generals, or admirals, or bishops, or priests, or ministers, or justices of peace?  Why, what have you to answer in favour of the prior rights of the Crown and peerage but this—our Constitution is a proscriptive Constitution; it is a Constitution whose sole authority is, that it has existed time out of mind.  It is settled in these two portions against one, legislatively; and in the whole of the judicature, the whole of the federal capacity, of the executive, the prudential and the financial administration, in one alone.  Nor were your House of Lords and the prerogatives of the Crown settled on any adjudication in favour of natural rights, for they could never be so portioned.  Your king, your lords, your judges, your juries, grand and little, all are prescriptive; and what proves it is the disputes not yet concluded, and never near becoming so, when any of them first originated.  Prescription is the most solid of all titles, not only to property, but, which is to secure that property, to government.  They harmonise with each other, and give mutual aid to one another.  It is accompanied with another ground of authority in the constitution of the human mind—presumption.  It is a presumption in favour of any settled scheme of government against any untried project, that a nation has long existed and flourished under it.  It is a better presumption even of the choice of a nation, far better than any sudden and temporary arrangement by actual election.  Because a nation is not an idea only of local extent, and individual momentary aggregation, but it is an idea of continuity, which extends in time as well as in numbers and in space.  And this is a choice not of one day, or one set of people, not a tumultuary and giddy choice; it is a deliberate election of ages and of generations; it is a Constitution made by what is ten thousand times better than choice—it is made by the peculiar circumstances, occasions, tempers, dispositions, and moral, civil, and social habitudes of the people, which disclose themselves only in a long space of time.  It is a vestment, which accommodates itself to the body.  Nor is prescription of government formed upon blind, unmeaning prejudices—for man is a most unwise, and a most wise being.  The individual is foolish.  The multitude, for the moment, are foolish, when they act without deliberation; but the species is wise, and when time is given to it, as a species it almost always acts right.

The reason for the Crown as it is, for the Lords as they are, is my reason for the Commons as they are, the electors as they are.  Now, if the Crown and the Lords, and the judicatures, are all prescriptive, so is the House of Commons of the very same origin, and of no other.  We and our electors have powers and privileges both made and circumscribed by prescription, as much to the full as the other parts; and as such we have always claimed them, and on no other title.  The House of Commons is a legislative body corporate by prescription, not made upon any given theory, but existing prescriptively—just like the rest.  This prescription has made it essentially what it is—an aggregate collection of three parts—knights, citizens, burgesses.  The question is, whether this has been always so, since the House of Commons has taken its present shape and circumstances, and has been an essential operative part of the Constitution; which, I take it, it has been for at least five hundred years.

This I resolve to myself in the affirmative: and then another question arises; whether this House stands firm upon its ancient foundations, and is not, by time and accidents, so declined from its perpendicular as to want the hand of the wise and experienced architects of the day to set it upright again, and to prop and buttress it up for duration;—whether it continues true to the principles upon which it has hitherto stood;—whether this be de facto the Constitution of the House of Commons as it has been since the time that the House of Commons has, without dispute, become a necessary and an efficient part of the British Constitution?  To ask whether a thing, which has always been the same, stands to its usual principle, seems to me to be perfectly absurd; for how do you know the principles but from the construction? and if that remains the same, the principles remain the same.  It is true, that to say your Constitution is what it has been, is no sufficient defence for those who say it is a bad Constitution.  It is an answer to those who say that it is a degenerate Constitution.  To those who say it is a bad one, I answer, Look to its effects.  In all moral machinery the moral results are its test.

On what grounds do we go to restore our Constitution to what it has been at some given period, or to reform and reconstruct it upon principles more conformable to a sound theory of government?  A prescriptive government, such as ours, never was the work of any legislator, never was made upon any foregone theory.  It seems to me a preposterous way of reasoning, and a perfect confusion of ideas, to take the theories, which learned and speculative men have made from that government, and then, supposing it made on these theories, which were made from it, to accuse the government as not corresponding with them.  I do not vilify theory and speculation—no, because that would be to vilify reason itself.  “Neque decipitur ratio, neque decipit unquam.”  No; whenever I speak against theory, I mean always a weak, erroneous, fallacious, unfounded, or imperfect theory; and one of the ways of discovering that it is a false theory is by comparing it with practice.  This is the true touchstone of all theories which regard man and the affairs of men: Does it suit his nature in general?—does it suit his nature as modified by his habits?

The more frequently this affair is discussed, the stronger the case appears to the sense and the feelings of mankind.  I have no more doubt than I entertain of my existence, that this very thing, which is stated as a horrible thing, is the means of the preservation of our Constitution whilst it lasts: of curing it of many of the disorders which, attending every species of institution, would attend the principle of an exact local representation, or a representation on the principle of numbers.  If you reject personal representation, you are pushed upon expedience; and then what they wish us to do is, to prefer their speculations on that subject to the happy experience of this country of a growing liberty and a growing prosperity for five hundred years.  Whatever respect I have for their talents, this, for one, I will not do.  Then what is the standard of expedience?  Expedience is that which is good for the community, and good for every individual in it.  Now this expedience is the desideratum to be sought, either without the experience of means, or with that experience.  If without, as in the case of the fabrication of a new commonwealth, I will hear the learned arguing what promises to be expedient; but if we are to judge of a commonwealth actually existing, the first thing I inquire is, What has been found expedient or inexpedient?  And I will not take their promise rather than the performance of the Constitution.

But no; this was not the cause of the discontents.  I went through most of the northern parts—the Yorkshire election was then raging; the year before, through most of the western counties—Bath, Bristol, Gloucester—not one word, either in the towns or country, on the subject of representation; much on the receipt tax, something on Mr. Fox’s ambition; much greater apprehension of danger from thence than from want of representation.  One would think that the ballast of the ship was shifted with us, and that our Constitution had the gunnel under water.  But can you fairly and distinctly point out what one evil or grievance has happened, which you can refer to the representative not following the opinion of his constituents?  What one symptom do we find of this inequality?  But it is not an arithmetical inequality with which we ought to trouble ourselves.  If there be a moral, a political equality, this is the desideratum in our Constitution, and in every Constitution in the world.  Moral inequality is as between places and between classes.  Now, I ask, what advantage do you find, that the places which abound in representation possess over others in which it is more scanty, in security for freedom, in security for justice, or in any one of those means of procuring temporal prosperity and eternal happiness, the ends for which society was formed?  Are the local interests of Cornwall and Wiltshire, for instance—their roads, canals, their prisons, their police—better than Yorkshire, Warwickshire, or Staffordshire?  Warwick has members; is Warwick or Stafford more opulent, happy, or free, than Newcastle or than Birmingham?  Is Wiltshire the pampered favourite, whilst Yorkshire, like the child of the bondwoman, is turned out to the desert?  This is like the unhappy persons who live, if they can be said to live, in the statical chair; who are ever feeling their pulse, and who do not judge of health by the aptitude of the body to perform its functions, but by their ideas of what ought to be the true balance between the several secretions.  Is a committee of Cornwall, &c., thronged, and the others deserted?  No.  You have an equal representation, because you have men equally interested in the prosperity of the whole, who are involved in the general interest and the general sympathy; and perhaps these places, furnishing a superfluity of public agents and administrators (whether, in strictness, they are representatives or not, I do not mean to inquire, but they are agents and administrators), will stand clearer of local interests, passions, prejudices, and cabals than the others, and therefore preserve the balance of the parts, and with a more general view and a more steady hand than the rest.

In every political proposal we must not leave out of the question the political views and object of the proposer; and these we discover, not by what he says, but by the principles he lays down.  “I mean,” says he, “a moderate and temperate reform;” that is, “I mean to do as little good as possible.  If the Constitution be what you represent it, and there be no danger in the change, you do wrong not to make the reform commensurate to the abuse.”  Fine reformer, indeed! generous donor!  What is the cause of this parsimony of the liberty which you dole out to the people?  Why all this limitation in giving blessings and benefits to mankind?  You admit that there is an extreme in liberty, which may be infinitely noxious to those who are to receive it, and which in the end will leave them no liberty at all.  I think so too; they know it, and they feel it.  The question is, then, What is the standard of that extreme?  What that gentleman, and the associations, or some parts of their phalanxes, think proper.  Then our liberties are in their pleasure; it depends on their arbitrary will how far I shall be free.  I will have none of that freedom.  If, therefore, the standard of moderation be sought for, I will seek for it.  Where?  Not in their fancies, nor in my own: I will seek for it where I know it is to be found—in the Constitution I actually enjoy.  Here it says to an encroaching prerogative—“Your sceptre has its length; you cannot add a hair to your head, or a gem to your crown, but what an eternal law has given to it.”  Here it says to an overweening peerage—“Your pride finds banks that it cannot overflow;” here to a tumultuous and giddy people—“There is a bound to the raging of the sea.”  Our Constitution is like our island, which uses and restrains its subject sea; in vain the waves roar.  In that Constitution I know, and exultingly I feel, both that I am free and that I am not free dangerously to myself or to others.  I know that no power on earth, acting as I ought to do, can touch my life, my liberty, or my property.  I have that inward and dignified consciousness of my own security and independence, which constitutes, and is the only thing which does constitute, the proud and comfortable sentiment of freedom in the human breast.  I know, too, and I bless God for my safe mediocrity; I know that if I possessed all the talents of the gentlemen on the side of the House I sit, and on the other, I cannot, by royal favour, or by popular delusion, or by oligarchical cabal, elevate myself above a certain very limited point, so as to endanger my own fall or the ruin of my country.  I know there is an order that keeps things fast in their place; it is made to us, and we are made to it.  Why not ask another wife, other children, another body, another mind?

The great object of most of these reformers is to prepare the destruction of the Constitution, by disgracing and discrediting the House of Commons.  For they think—prudently, in my opinion—that if they can persuade the nation that the House of Commons is so constituted as not to secure the public liberty; not to have a proper connection with the public interests; so constituted as not, either actually or virtually, to be the representative of the people, it will be easy to prove that a government composed of a monarchy, an oligarchy chosen by the Crown, and such a House of Commons, whatever good can be in such a system, can by no means be a system of free government.