The Works of the Right Honourable Edmund Burke Volume VII Part 2

Does a design against the Const.i.tution of this country exist? If it does, and if it is carried on with increasing vigor and activity by a restless faction, and if it receives countenance by the most ardent and enthusiastic applauses of its object in the great council of this kingdom, by men of the first parts which this kingdom produces, perhaps by the first it has ever produced, can I think that there is no danger?

If there be danger, must there be no precaution at all against it? If you ask whether I think the danger urgent and immediate, I answer, Thank G.o.d, I do not. The body of the people is yet sound, the Const.i.tution is in their hearts, while wicked men are endeavoring to put another into their heads. But if I see the very same beginnings which have commonly ended in great calamities, I ought to act as if they might produce the very same effects. Early and provident fear is the mother of safety; because in that state of things the mind is firm and collected, and the judgment unembarra.s.sed. But when the fear and the evil feared come on together, and press at once upon us, deliberation itself is ruinous, which saves upon all other occasions; because, when perils are instant, it delays decision: the man is in a flutter, and in a hurry, and his judgment is gone,--as the judgment of the deposed King of France and his ministers was gone, if the latter did not premeditately betray him. He was just come from his usual amus.e.m.e.nt of hunting, when the head of the column of treason and a.s.sa.s.sination was arrived at his house. Let not the king, let not the Prince of Wales, be surprised in this manner. Let not both Houses of Parliament be led in triumph along with him, and have law dictated to them, by the Const.i.tutional, the Revolution, and the Unitarian Societies. These insect reptiles, whilst they go on only caballing and toasting, only fill us with disgust; if they get above their natural size, and increase the quant.i.ty whilst they keep the quality of their venom, they become objects of the greatest terror. A spider in his natural size is only a spider, ugly and loathsome; and his flimsy net is only fit for catching flies. But, good G.o.d! suppose a spider as large as an ox, and that he spread cables about us, all the wilds of Africa would not produce anything so dreadful:--

Quale portentum neque militaris Daunia in latis alit esculetis, Nec Jubae tellus generat, leonum Arida nutrix.

Think of them who dare menace in the way they do in their present state, what would they do, if they had power commensurate to their malice? G.o.d forbid I ever should have a despotic master!--but if I must, my choice is made. I will have Louis the Sixteenth rather than Monsieur Bailly, or Brissot, or Chabot,--rather George the Third, or George the Fourth, than. Dr. Priestley, or Dr. Kippis,--persons who would not load a tyrannous power by the poisoned taunts of a vulgar, low-bred insolence.

I hope we have still spirit enough to keep us from the one or the other.

The contumelies of tyranny are the worst parts of it.

But if the danger be existing in reality, and silently maturing itself to our destruction, what! is it not better to take _treason_ unprepared than that _treason_ should come by surprise upon us and take us unprepared? If we must have a conflict, let us have it with all our forces fresh about us, with our government in full function and full strength, our troops uncorrupted, our revenues in the legal hands, our a.r.s.enals filled and possessed by government,--and not wait till the conspirators met to commemorate the 14th of July shall seize on the Tower of London and the magazines it contains, murder the governor, and the mayor of London, seize upon the king's person, drive out the House of Lords, occupy your gallery, and thence, as from an high tribunal, dictate to you. The degree of danger is not only from the circ.u.mstances which threaten, but from the value of the objects which are threatened.

A small danger menacing an inestimable object is of more importance than the greatest perils which regard one that is indifferent to us. The whole question of the danger depends upon facts. The first fact is, whether those who sway in France at present confine themselves to the regulation of their internal affairs,--or whether upon system they nourish cabals in all other countries, to extend their power by producing revolutions similar to their own. 2. The next is, whether we have any cabals formed or forming within these kingdoms, to cooperate with them for the destruction of our Const.i.tution. On the solution of these two questions, joined with our opinion of the value of the object to be affected by their machinations, the justness of our alarm and the necessity of our vigilance must depend. Every private conspiracy, every open attack upon the laws, is dangerous. One robbery is an alarm to all property; else I am sure we exceed measure in our punishment. As robberies increase in number and audacity, the alarm increases. These wretches are at war with us upon principle. They hold this government to be an usurpation. See the language of the Department.

The whole question is on the _reality_ of the danger. Is it such a danger as would justify that fear _qui cadere potest in hominem constantem et non metuentem_? This is the fear which the principles of jurisprudence declare to be a lawful and justifiable fear. When a man threatens my life openly and publicly, I may demand from him securities of the peace. When every act of a man's life manifests such a design stronger than by words, even though he does not make such a declaration, I am justified in being on my guard. They are of opinion that they are already one fifth of the kingdom. If so, their force is naturally not contemptible. To say that in all contests the decision will of course be in favor of the greater number is by no means true in fact. For, first, the greater number is generally composed of men of sluggish tempers, slow to act, and unwilling to attempt, and, by being in possession, are so disposed to peace that they are unwilling to take early and vigorous measures for their defence, and they are almost always caught unprepared:--

Nec coere pares: alter vergentibus annis In senium, longoque togae tranquillior usu.

Dedidicit jam pace ducem;...

Nec reparare novas vires, multumque priori Credere fortunae: stat magni nominis umbra.[1]

A smaller number, more expedite, awakened, active, vigorous, and courageous, who make amends for what they want in weight by their superabundance of velocity, will create an acting power of the greatest possible strength. When men are furiously and fanatically fond of an object, they will prefer it, as is well known, to their own peace, to their own property, and to their own lives: and can there be a doubt, in such a case, that they would prefer it to the peace of their country? Is it to be doubted, that, if they have not strength enough at home, they will call in foreign force to aid them?

Would you deny them _what is reasonable_, for fear they should?

Certainly not. It would be barbarous to pretend to look into the minds of men. I would go further: it would not be just even to trace consequences from principles which, though evident to me, were denied by them. Let them disband as a faction, and let them act as individuals, and when I see them with no other views than to enjoy their own conscience in peace, I, for one, shall most cheerfully vote for their relief.

A tender conscience, of all things, ought to be tenderly handled; for if you do not, you injure not only the conscience, but the whole moral frame and const.i.tution is injured, recurring at times to remorse, and seeking refuge only in making the conscience callous. But the conscience of faction,--the conscience of sedition,--the conscience of conspiracy, war, and confusion....

Whether anything be proper to be denied, which is right in itself, because it may lead to the demand of others which it is improper to grant? Abstractedly speaking, there can be no doubt that this question ought to be decided in the negative. But as no moral questions are ever abstract questions, this, before I judge upon any abstract proposition, must be embodied in circ.u.mstances; for, since things are right or wrong, morally speaking, only by their relation and connection with other things, this very question of what it is politically right to grant depends upon this relation to its effects. It is the direct office of wisdom to look to the consequences of the acts we do: if it be not this, it is worth nothing, it is out of place and of function, and a downright fool is as capable of government as Charles Fox. A man desires a sword: why should he be refused? A sword is a means of defence, and defence is the natural right of man,--nay, the first of all his rights, and which comprehends them all. But if I know that the sword desired is to be employed to cut my own throat, common sense, and my own self-defence, dictate to me to keep out of his hands this natural right of the sword.

But whether this denial be wise or foolish, just or unjust, prudent or cowardly, depends entirely on the state of the man's means. A man may have very ill dispositions, and yet be so very weak as to make all precaution foolish. See whether this be the case of these Dissenters, as to their designs, as to their means, numbers, activity, zeal, foreign a.s.sistance.

The first question, to be decided, when we talk of the Church's being in danger from any particular measure, is, whether the danger to the Church is a public evil: for to those who think that the national Church Establishment is itself a national grievance, to desire them to forward or to resist any measure, upon account of its conducing to the safety of the Church or averting its danger, would be to the last degree absurd.

If you have reason to think thus of it, take the reformation instantly into your own hands, whilst you are yet cool, and can do it in measure and proportion, and not under the influence of election tests and popular fury. But here I a.s.sume that by far the greater number of those who compose the House are of opinion that this national Church Establishment is a great national benefit, a great public blessing, and that its existence or its non-existence of course is a thing by no means indifferent to the public welfare: then to them its danger or its safety must enter deeply into every question which has a relation to it. It is not because ungrounded alarms have been given that there never can exist a real danger: perhaps the worst effect of an ungrounded alarm is to make people insensible to the approach of a real peril. Quakerism is strict, methodical, in its nature highly aristocratical, and so regular that it has brought the whole community to the condition of one family; but it does not actually interfere with the government. The principle of your pet.i.tioners is no pa.s.sive conscientious dissent, on account of an over-scrupulous habit of mind: the dissent on their part is fundamental, goes to the very root; and it is at issue not upon this rite or that ceremony, on this or that school opinion, but upon this one question of an Establishment, as unchristian, unlawful, contrary to the Gospel and to natural right, Popish and idolatrous. These are the principles violently and fanatically held and pursued,--taught to their children, who are sworn at the altar like Hannibal. The war is with the Establishment itself,--no quarter, no compromise. As a party, they are infinitely mischievous: see the declarations of Priestley and Price,--declarations, you will say, of _hot_ men. Likely enough: but who are the _cool_ men who have disclaimed them? Not one,--no, not one.

Which of them has ever told you that they do not mean to _destroy the Church_, if ever it should be in their power? Which of them has told you that this would not be the first and favorite use of any power they should get? Not one,--no, not one. Declarations of hot men! The danger is thence, that they are under the _conduct_ of hot men: _falsos in amore odia non fingere_.

They say they are well affected to the State, and mean only to destroy the Church. If this be the utmost of their meaning, you must first consider whether you wish your Church Establishment to be destroyed. If you do, you had much better do it now in temper, in a grave, moderate, and parliamentary way. But if you think otherwise, and that you think it to be an invaluable blessing, a way fully sufficient to nourish a manly, rational, solid, and at the same time humble piety,--if you find it well fitted to the frame and pattern of your civil const.i.tution,--if you find it a barrier against fanaticism, infidelity, and atheism,--if you find that it furnishes support to the human mind in the afflictions and distresses of the world, consolation in sickness, pain, poverty, and death,--if it dignifies our nature with the hope of immortality, leaves inquiry free, whilst it preserves an authority to teach, where authority only can teach, _communia altaria, aeque ac patriam, diligite, colite, fovete_.

In the discussion of this subject which took place in the year 1790, Mr.

Burke declared his intention, in case the motion for repealing the Test Acts had been agreed to, of proposing to subst.i.tute the following test in the room of what was intended to be repealed:--

"I, _A.B._, do, in the presence of G.o.d, sincerely profess and believe that a religious establishment in this state is not contrary to the law of G.o.d, or disagreeable to the law of Nature, or to the true principles of the Christian religion, or that it is noxious to the community; and I do sincerely promise and engage, before G.o.d, that I never will, by any conspiracy, contrivance, or political device whatever, attempt, or abet others in any attempt, to subvert the const.i.tution of the Church of England, as the same is now by law established, and that I will not employ any power or influence which I may derive from any office corporate, or any other office which I hold or shall hold under his Majesty, his heirs and successors, to destroy and subvert the same, or to cause members to be elected into any corporation or into Parliament, give my vote in the election of any member or members of Parliament, or into any office, for or on account of their attachment to any other or different religious opinions or establishments, or with any hope that they may promote the same to the prejudice of the Established Church, but will dutifully and peaceably content myself with my private liberty of conscience, as the same is allowed by law. So help me G.o.d."

FOOTNOTES:

[1] Lucan, I. 129 to 135.

SPEECH

ON

THE MOTION MADE IN THE HOUSE OF COMMONS,

FEBRUARY 7, 1771,

RELATIVE TO

THE MIDDLEs.e.x ELECTION.

NOTE.

The motion supported in the following Speech, which was for leave to bring in a bill to ascertain the rights of the electors in respect to the eligibility of persons to serve in Parliament, was rejected by a majority of 167 against 103.

SPEECH.

In every complicated const.i.tution (and every free const.i.tution is complicated) cases will arise when the several orders of the state will clash with one another, and disputes will arise about the limits of their several rights and privileges. It may be almost impossible to reconcile them....

Carry the principle on by which you expelled Mr. Wilkes, there is not a man in the House, hardly a man in the nation, who may not be disqualified. That this House should have no power of expulsion is an hard saying: that this House should have a general discretionary power of disqualification is a dangerous saying. That the people should not choose their own representative is a saying that shakes the Const.i.tution: that this House should name the representative is a saying which, followed by practice, subverts the Const.i.tution. They have the right of electing; you have a right of expelling: they of choosing; you of judging, and only of judging, of the choice. What bounds shall be set to the freedom of that choice? Their right is prior to ours: we all originate there. They are the mortal enemies of the House of Commons who would persuade them to think or to act as if they were a self-originated magistracy, independent of the people, and unconnected with their opinions and feelings. Under a pretence of exalting the dignity, they undermine the very foundations of this House. When the question is asked _here_, What disturbs the people? whence all this clamor? we apply to the Treasury bench, and they tell us it is from the efforts of libellers, and the wickedness of the people: a worn-out ministerial pretence. If abroad the people are deceived by popular, within we are deluded by ministerial cant.

The question amounts to this: Whether you mean to be a legal tribunal, or an arbitrary and despotic a.s.sembly? I see and I feel the delicacy and difficulty of the ground upon which we stand in this question. I could wish, indeed, that they who advise the crown had not left Parliament in this very ungraceful distress, in which they can neither retract with dignity nor persist with justice. Another Parliament might have satisfied the people without lowering themselves. But our situation is not in our own choice: our conduct in that situation is all that is in our own option. The substance of the question is, to put bounds to your own power by the rules and principles of law. This is, I am sensible, a difficult thing to the corrupt, grasping, and ambitious part of human nature. But the very difficulty argues and enforces the necessity of it.

First, because the greater the power, the more dangerous the abuse.

Since the Revolution, at least, the power of the nation has all flowed with a full tide into the House of Commons. Secondly, because the House of Commons, as it is the most powerful, is the most corruptible part of the whole Const.i.tution. Our public wounds cannot be concealed; to be cured, they must be laid open. The public does think we are a corrupt body. In our _legislative capacity_, we are, in most instances, esteemed a very wise body; in our judicial, we have no credit, no character at all. Our judgments stink in the nostrils of the people.

They think us to be not only without virtue, but without shame.

Therefore the greatness of our power, and the great and just opinion of our corruptibility and our corruption, render it necessary to fix some bound, to plant some landmark, which we are never to exceed. This is what the bill proposes.

First, on this head, I lay it down as a fundamental rule in the law and Const.i.tution of this country, that this House has not by itself alone a legislative authority in any case whatsoever. I know that the contrary was the doctrine of the usurping House of Commons, which threw down the fences and bulwarks of law, which annihilated first the lords, then the crown, then its const.i.tuents. But the first thing that was done on the restoration of the Const.i.tution was to settle this point. Secondly, I lay it down as a rule, that the power of occasional incapacitation, on discretionary grounds, is a legislative power. In order to establish this principle, if it should not be sufficiently proved by being stated, tell me what are the criteria, the characteristics, by which you distinguish between a legislative and a juridical act. It will be necessary to state, shortly, the difference between a legislative and a juridical act.

A legislative act has no reference to any rule but these two,--original justice, and discretionary application. Therefore it can give rights,--rights where no rights existed before; and it can take away rights where they were before established. For the law, which binds all others, does not and cannot bind the law-maker: he, and he alone, is above the law. But a judge, a person exercising a judicial capacity, is neither to apply to original justice nor to a discretionary application of it. He goes to justice and discretion only at second hand, and through the medium of some superiors. He is to work neither upon his opinion of the one nor of the other, but upon a fixed rule, of which he has not the making, but singly and solely the _application_ to the case.

The power a.s.sumed by the House neither is nor can be judicial power exercised according to known law. The properties of law are, first, that it should be known; secondly, that it should be fixed, and not occasional. First, this power cannot be according to the first property of law; because no man does or can know it, nor do you yourselves know upon what grounds you will vote the incapacity of any man. No man in Westminster Hall, or in any court upon earth, will say that is law, upon which, if a man going to his counsel should say to him, "What is my tenure in law of this estate?" he would answer, "Truly, Sir, I know not; the court has no rule but its own discretion; they will determine." It is not a fixed law; because you profess you vary it according to the occasion, exercise it according to your discretion, no man can call for it as a right. It is argued, that the incapacity is not originally voted, but a consequence of a power of expulsion. But if you expel, not upon legal, but upon arbitrary, that is, upon discretionary grounds, and the incapacity is _ex vi termini_ and inclusively comprehended in the expulsion, is not the incapacity voted in the expulsion? Are they not convertible terms? And if incapacity is voted to be inherent in expulsion, if expulsion be arbitrary, incapacity is arbitrary also. I have therefore shown that the power of incapacitation is a legislative power; I have shown that legislative power does not belong to the House of Commons; and therefore it follows that the House of Commons has not a power of incapacitation.

I know not the origin of the House of Commons, but am very sure that it did not create itself; the electors were prior to the elected, whose rights originated either from the people at large, or from some other form of legislature, which never could intend for the chosen a power of superseding the choosers.

If you have not a power of declaring an incapacity simply by the mere act of declaring it, it is evident to the most ordinary reason you cannot have a right of expulsion, inferring, or rather including, an incapacity. For as the law, when it gives any direct right, gives also as necessary incidents all the means of acquiring the possession of that right, so, where it does not give a right directly, it refuses all the means by which such a right may by any mediums be exercised, or in effect be indirectly acquired. Else it is very obvious that the intention of the law in refusing that right might be entirely frustrated, and the whole power of the legislature baffled. If there be no certain, invariable rule of eligibility, it were better to get simplicity, if certainty is not to be had, and to resolve all the franchises of the subject into this one short proposition,--the will and pleasure of the House of Commons.

The argument drawn from the courts of law applying the principles of law to new cases as they emerge is altogether frivolous, inapplicable, and arises from a total ignorance of the bounds between civil and criminal jurisdiction, and of the separate maxims that govern these two provinces of law, that are eternally separate. Undoubtedly the courts of law, where a new case comes before them, as they do every hour, then, that there may be no defect in justice, call in similar principles, and the example of the nearest determination, and do everything to draw the law to as near a conformity to general equity and right reason as they can bring it with its being a fixed principle. _Boni judicis est ampliare just.i.tiam_,--that is, to make open and liberal justice. But in criminal matters this parity of reason and these a.n.a.logies ever have been and ever ought to be shunned.

Whatever is incident to a court of judicature is necessary to the House of Commons as judging in elections. But a power of making incapacities is not necessary to a court of judicature: therefore a power of making incapacities is not necessary to the House of Commons.

Incapacity, declared by whatever authority, stands upon two principles: first, an incapacity arising from the supposed incongruity of two duties in the commonwealth; secondly, an incapacity arising from unfitness by infirmity of nature or the criminality of conduct. As to the first cla.s.s of incapacities, they have no _hards.h.i.+p_ annexed to them. The persons so incapacitated are paid by one dignity for what they abandon in another, and for the most part the situation arises from their own choice. But as to the second, arising from an unfitness not fixed by Nature, but superinduced by some positive acts, or arising from honorable motives, such as an occasional personal disability, of all things it ought to be defined by the fixed rule of law, what Lord c.o.ke calls the golden metwand of the law, and not by the crooked cord of discretion. Whatever is general is better borne. We take our common lot with men of the same description. But to be selected and marked out by a particular brand of unworthiness among our fellow-citizens is a lot of all others the hardest to be borne, and consequently is of all others that act winch ought only to be trusted to the legislature, as not only _legislative_ in its nature, but of all parts of legislature the most odious. The question is over, if this is shown not to be a legislative act.

But what is very usual and natural is, to corrupt judicature into legislature. On this point it is proper to inquire whether a court of judicature which decides without appeal has it as a necessary incident of such judicature, that whatever it decides is _de jure_ law. n.o.body will, I hope, a.s.sert this; because the direct consequence would be the entire extinction of the difference between true and false judgments.

For if the judgment makes the law, and not the law directs the judgment, it is impossible there should be such a thing as an illegal judgment given.