Chapter 6

It signifies very little how this matter may be quibbled away. Example, the only argument of effect in civil life, demonstrates the truth of my proposition. Nothing can alter my opinion concerning the pernicious tendency of this example, until I see some man for his indiscretion in the support of power, for his violent and intemperate servility, rendered incapable of sitting in parliament. For as it now stands, the fault of overstraining popular qualities, and, irregularly if you please, asserting popular privileges, has led to disqualification; the opposite fault never has produced the slightest punishment. Resistance to power has shut the door of the House of Commons to one man; obsequiousness and servility, to none.

Not that I would encourage popular disorder, or any disorder. But I would leave such offences to the law, to be punished in measure and proportion. The laws of this country are for the most part constituted, and wisely so, for the general ends of Government, rather than for the preservation of our particular liberties. Whatever therefore is done in support of liberty, by persons not in public trust, or not acting merely in that trust, is liable to be more or less out of the ordinary course of the law; and the law itself is sufficient to animadvert upon it with great severity. Nothing indeed can hinder that severe letter from crushing us, except the temperaments it may receive from a trial by jury. But if the habit prevails of _going beyond the law_, and superseding this judicature, of carrying offences, real or supposed, into the legislative bodies, who shall establish themselves into _courts of criminal equity_, (so _the Star Chamber_ has been called by Lord Bacon,) all the evils of the _Star_ Chamber are revived. A large and liberal construction in ascertaining offences, and a discretionary power in punishing them, is the idea of criminal equity; which is in truth a monster in Jurisprudence. It signifies nothing whether a court for this purpose be a Committee of Council, or a House of Commons, or a House of Lords; the liberty of the subject will be equally subverted by it. The true end and purpose of that House of Parliament which entertains such a jurisdiction will be destroyed by it.

I will not believe, what no other man living believes, that Mr. Wilkes was punished for the indecency of his publications, or the impiety of his ransacked closet. If he had fallen in a common slaughter of libellers and blasphemers, I could well believe that nothing more was meant than was pretended. But when I see, that, for years together, full as impious, and perhaps more dangerous writings to religion, and virtue, and order, have not been punished, nor their authors discountenanced; that the most audacious libels on Royal Majesty have passed without notice; that the most treasonable invectives against the laws, liberties, and constitution of the country, have not met with the slightest animadversion; I must consider this as a shocking and shameless pretence. Never did an envenomed scurrility against everything sacred and civil, public and private, rage through the kingdom with such a furious and unbridled licence. All this while the peace of the nation must be shaken, to ruin one libeller, and to tear from the populace a single favourite.

Nor is it that vice merely skulks in an obscure and contemptible impunity. Does not the public behold with indignation, persons not only generally scandalous in their lives, but the identical persons who, by their society, their instruction, their example, their encouragement, have drawn this man into the very faults which have furnished the Cabal with a pretence for his persecution, loaded with every kind of favour, honour, and distinction, which a Court can bestow? Add but the crime of servility (the _foedum crimem servitutis_) to every other crime, and the whole mass is immediately transmuted into virtue, and becomes the just subject of reward and honour. When therefore I reflect upon this method pursued by the Cabal in distributing rewards and punishments, I must conclude that Mr. Wilkes is the object of persecution, not on account of what he has done in common with others who are the objects of reward, but for that in which he differs from many of them: that he is pursued for the spirited dispositions which are blended with his vices; for his unconquerable firmness, for his resolute, indefatigable, strenuous resistance against oppression.

In this case, therefore, it was not the man that was to be punished, nor his faults that were to be discountenanced. Opposition to acts of power was to be marked by a kind of civil proscription. The popularity which should arise from such an opposition was to be shown unable to protect it. The qualities by which court is made to the people, were to render every fault inexpiable, and every error irretrievable. The qualities by which court is made to power, were to cover and to sanctify everything. He that will have a sure and honourable seat, in the House of Commons, must take care how he adventures to cultivate popular qualities; otherwise he may, remember the old maxim, _Breves et infaustos populi Romani amores_. If, therefore, a pursuit of popularity expose a man to greater dangers than a disposition to servility, the principle which is the life and soul of popular elections will perish out of the Constitution.

It behoves the people of England to consider how the House of Commons under the operation of these examples must of necessity be constituted. On the side of the Court will be, all honours, offices, emoluments; every sort of personal gratification to avarice or vanity; and, what is of more moment to most gentlemen, the means of growing, by innumerable petty services to individuals, into a spreading interest in their country. On the other hand, let us suppose a person unconnected with the Court, and in opposition to its system. For his own person, no office, or emolument, or title; no promotion ecclesiastical, or civil, or military, or naval, for children, or brothers, or kindred. In vain an expiring interest in a borough calls for offices, or small livings, for the children of mayors, and aldermen, and capital burgesses. His court rival has them all. He can do an infinite number of acts of generosity and kindness, and even of public spirit. He can procure indemnity from quarters. He can procure advantages in trade. He can get pardons for offences. He can obtain a thousand favours, and avert a thousand evils. He may, while he betrays every valuable interest of the kingdom, be a benefactor, a patron, a father, a guardian angel, to his borough. The unfortunate independent member has nothing to offer, but harsh refusal, or pitiful excuse, or despondent representation of a hopeless interest. Except from his private fortune, in which he may be equalled, perhaps exceeded, by his Court competitor, he has no way of showing any one good quality, or of making a single friend. In the House, he votes for ever in a dispirited minority. If he speaks, the doors are locked. A body of loquacious placemen go out to tell the world, that all he aims at, is to get into office. If he has not the talent of elocution, which is the case of many as wise and knowing men as any in the House, he is liable to all these inconveniences, without the eclat which attends upon any tolerably successful exertion of eloquence. Can we conceive a more discouraging post of duty than this? Strip it of the poor reward of popularity; suffer even the excesses committed in defence of the popular interest to become a ground for the majority of that House to form a disqualification out of the line of the law, and at their pleasure, attended not only with the loss of the franchise, but with every kind of personal disgrace; if this shall happen, the people of this kingdom may be assured that they cannot be firmly or faithfully served by any man. It is out of the nature of men and things that they should; and their presumption will be equal to their folly, if they expect it. The power of the people, within the laws, must show itself sufficient to protect every representative in the animated performance of his duty, or that duty cannot be performed. The House of Commons can never be a control on other parts of Government, unless they are controlled themselves by their constituents; and unless these constituents possess some right in the choice of that House, which it is not in the power of that House to take away. If they suffer this power of arbitrary incapacitation to stand, they have utterly perverted every other power of the House of Commons. The late proceeding, I will not say, _is_ contrary to law; it _must_ be so; for the power which is claimed cannot, by any possibility, be a legal power in any limited member of Government.

The power which they claim, of declaring incapacities, would not be above the just claims of a final judicature, if they had not laid it down as a leading principle, that they had no rule in the exercise of this claim but their own _discretion_. Not one of their abettors has ever undertaken to assign the principle of unfitness, the species or degree of delinquency, on which the House of Commons will expel, nor the mode of proceeding upon it, nor the evidence upon which it is established. The direct consequence of which is, that the first franchise of an Englishman, and that on which all the rest vitally depend, is to be forfeited for some offence which no man knows, and which is to be proved by no known rule whatsoever of legal evidence. This is so anomalous to our whole constitution, that I will venture to say, the most trivial right, which the subject claims, never was, nor can be, forfeited in such a manner.

The whole of their usurpation is established upon this method of arguing. We do not make laws. No; we do not contend for this power. We only declare law; and, as we are a tribunal both competent and supreme, what we declare to be law becomes law, although it should not have been so before. Thus the circumstance of having no appeal from their jurisdiction is made to imply that they have no rule in the exercise of it: the judgment does not derive its validity from its conformity to the law; but preposterously the law is made to attend on the judgment; and the rule of the judgment is no other than the _occasional will of the House_. An arbitrary discretion leads, legality follows; which is just the very nature and description of a legislative act.

This claim in their hands was no barren theory. It was pursued into its utmost consequences; and a dangerous principle has begot a correspondent practice. A systematic spirit has been shown upon both sides. The electors of Middlesex chose a person whom the House of Commons had voted incapable; and the House of Commons has taken in a member whom the electors of Middlesex had not chosen. By a construction on that legislative power which had been assumed, they declared that the true legal sense of the country was contained in the minority, on that occasion; and might, on a resistance to a vote of incapacity, be contained in any minority.

When any construction of law goes against the spirit of the privilege it was meant to support, it is a vicious construction. It is material to us to be represented really and bona fide, and not in forms, in types, and shadows, and fictions of law. The right of election was not established merely as a _matter of form_, to satisfy some method and rule of technical reasoning; it was not a principle which might substitute a _Titius_ or a _Maevius_, a _John Doe_ or _Richard Roe_, in the place of a man specially chosen; not a principle which was just as well satisfied with one man as with another. It is a right, the effect of which is to give to the people that man, and that man only, whom by their voices, actually, not constructively given, they declare that they know, esteem, love, and trust. This right is a matter within their own power of judging and feeling; not an _ens rationis_ and creature of law: nor can those devices, by which anything else is substituted in the place of such an actual choice, answer in the least degree the end of representation.

I know that the courts of law have made as strained constructions in other cases. Such is the construction in common recoveries. The method of construction which in that case gives to the persons in remainder, for their security and representative, the door-keeper, crier, or sweeper of the Court, or some other shadowy being without substance or effect, is a fiction of a very coarse texture. This was however suffered, by the acquiescence of the whole kingdom, for ages; because the evasion of the old Statute of Westminster, which authorised perpetuities, had more sense and utility than the law which was evaded. But an attempt to turn the right of election into such a farce and mockery as a fictitious fine and recovery, will, I hope, have another fate; because the laws which give it are infinitely dear to us, and the evasion is infinitely contemptible.

The people indeed have been told, that this power of discretionary disqualification is vested in hands that they may trust, and who will be sure not to abuse it to their prejudice. Until I find something in this argument differing from that on which every mode of despotism has been defended, I shall not be inclined to pay it any great compliment. The people are satisfied to trust themselves with the exercise of their own privileges, and do not desire this kind intervention of the House of Commons to free them from the burthen. They are certainly in the right. They ought not to trust the House of Commons with a power over their franchises; because the constitution, which placed two other co-ordinate powers to control it, reposed no such confidence in that body. It were a folly well deserving servitude for its punishment, to be full of confidence where the laws are full of distrust; and to give to an House of Commons, arrogating to its sole resolution the most harsh and odious part of legislative authority, that degree of submission which is due only to the Legislature itself.

When the House of Commons, in an endeavour to obtain new advantages at the expense of the other orders of the State, for the benefits of the _Commons at large_, have pursued strong measures; if it were not just, it was at least natural, that the constituents should connive at all their proceedings; because we were ourselves ultimately to profit. But when this submission is urged to us, in a contest between the representatives and ourselves, and where nothing can be put into their scale which is not taken from ours, they fancy us to be children when they tell us they are our representatives, our own flesh and blood, and that all the stripes they give us are for our good. The very desire of that body to have such a trust contrary to law reposed in them, shows that they are not worthy of it. They certainly will abuse it; because all men possessed of an uncontrolled discretionary power leading to the aggrandisement and profit of their own body have always abused it: and I see no particular sanctity in our times, that is at all likely, by a miraculous operation, to overrule the course of nature.

But we must purposely shut our eyes, if we consider this matter merely as a contest between the House of Commons and the Electors. The true contest is between the Electors of the Kingdom and the Crown; the Crown acting by an instrumental House of Commons. It is precisely the same, whether the Ministers of the Crown can disqualify by a dependent House of Commons, or by a dependent court of _Star Chamber_, or by a dependent court of King's Bench. If once Members of Parliament can be practically convinced that they do not depend on the affection or opinion of the people for their political being, they will give themselves over, without even an appearance of reserve, to the influence of the Court.

Indeed, a Parliament unconnected with the people, is essential to a Ministry unconnected with the people; and therefore those who saw through what mighty difficulties the interior Ministry waded, and the exterior were dragged, in this business, will conceive of what prodigious importance, the new corps of _King's men_ held this principle of occasional and personal incapacitation, to the whole body of their design.

When the House of Commons was thus made to consider itself as the master of its constituents, there wanted but one thing to secure that House against all possible future deviation towards popularity; an unlimited fund of money to be laid out according to the pleasure of the Court.

* * * * *

To complete the scheme of bringing our Court to a resemblance to the neighbouring Monarchies, it was necessary, in effect, to destroy those appropriations of revenue, which seem to limit the property, as the other laws had done the powers, of the Crown. An opportunity for this purpose was taken, upon an application to Parliament for payment of the debts of the Civil List; which in 1769 had amounted to 513,000 pounds. Such application had been made upon former occasions; but to do it in the former manner would by no means answer the present purpose.

Whenever the Crown had come to the Commons to desire a supply for the discharging of debts due on the Civil List, it was always asked and granted with one of the three following qualifications; sometimes with all of them. Either it was stated that the revenue had been diverted from its purposes by Parliament; or that those duties had fallen short of the sum for which they were given by Parliament, and that the intention of the Legislature had not been fulfilled; or that the money required to discharge the Civil List debt was to be raised chargeable on the Civil List duties. In the reign of Queen Anne, the Crown was found in debt. The lessening and granting away some part of her revenue by Parliament was alleged as the cause of that debt, and pleaded as an equitable ground (such it certainly was), for discharging it. It does not appear that the duties which wore then applied to the ordinary Government produced clear above 580,000 pounds a year; because, when they were afterwards granted to George the First, 120,000 pounds was added, to complete the whole to 700,000 pounds a year. Indeed it was then asserted, and, I have no doubt, truly, that for many years the nett produce did not amount to above 550,000 pounds. The Queen's extraordinary charges were besides very considerable; equal, at least, to any we have known in our time. The application to Parliament was not for an absolute grant of money, but to empower the Queen to raise it by borrowing upon the Civil List funds.

The Civil List debt was twice paid in the reign of George the First. The money was granted upon the same plan which had been followed in the reign of Queen Anne. The Civil List revenues were then mortgaged for the sum to be raised, and stood charged with the ransom of their own deliverance.

George the Second received an addition to his Civil List. Duties were granted for the purpose of raising 800,000 pounds a year. It was not until he had reigned nineteen years, and after the last rebellion, that he called upon Parliament for a discharge of the Civil List debt. The extraordinary charges brought on by the rebellion, account fully for the necessities of the Crown. However, the extraordinary charges of Government were not thought a ground fit to be relied on. A deficiency of the Civil List duties for several years before was stated as the principal, if not the sole, ground on which an application to Parliament could be justified. About this time the produce of these duties had fallen pretty low; and even upon an average of the whole reign they never produced 800,000 pounds a year clear to the Treasury.

That Prince reigned fourteen years afterwards: not only no new demands were made, but with so much good order were his revenues and expenses regulated, that, although many parts of the establishment of the Court were upon a larger and more liberal scale than they have been since, there was a considerable sum in hand, on his decease, amounting to about 170,000 pounds, applicable to the service of the Civil List of his present Majesty. So that, if this reign commenced with a greater charge than usual, there was enough, and more than enough, abundantly to supply all the extraordinary expense. That the Civil List should have been exceeded in the two former reigns, especially in the reign of George the First, was not at all surprising. His revenue was but 700,000 pounds annually; if it ever produced so much clear. The prodigious and dangerous disaffection to the very being of the establishment, and the cause of a Pretender then powerfully abetted from abroad, produced many demands of an extraordinary nature both abroad and at home. Much management and great expenses were necessary. But the throne of no Prince has stood upon more unshaken foundations than that of his present Majesty.

To have exceeded the sum given for the Civil List, and to have incurred a debt without special authority of Parliament, was, _prima facie_, a criminal act: as such Ministers ought naturally rather to have withdrawn it from the inspection, than to have exposed it to the scrutiny, of Parliament. Certainly they ought, of themselves, officially to have come armed with every sort of argument, which, by explaining, could excuse a matter in itself of presumptive guilt. But the terrors of the House of Commons are no longer for Ministers.

On the other hand, the peculiar character of the House of Commons, as trustee of the public purse, would have led them to call with a punctilious solicitude for every public account, and to have examined into them with the most rigorous accuracy.

The capital use of an account is, that the reality of the charge, the reason of incurring it, and the justice and necessity of discharging it, should all appear antecedent to the payment. No man ever pays first, and calls for his account afterwards; because he would thereby let out of his hands the principal, and indeed only effectual, means of compelling a full and fair one. But, in national business, there is an additional reason for a previous production of every account. It is a cheek, perhaps the only one, upon a corrupt and prodigal use of public money. An account after payment is to no rational purpose an account. However, the House of Commons thought all these to be antiquated principles; they were of opinion that the most Parliamentary way of proceeding was, to pay first what the Court thought proper to demand, and to take its chance for an examination into accounts at some time of greater leisure.