Kitabı oku: «Thoughts on the Present Discontents, and Speeches», sayfa 8

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.