The Works of the Right Honourable Edmund Burke, Vol. 07 (of 12)

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, and of the government no share at all? What sort of treaty of partition is this for those who have an 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 favor of the prior rights of the crown and peerage but this: Our Constitution is a prescriptive 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 was your House of Lords and the prerogatives of the crown settled on any adjudication in favor of natural rights: for they could never be so partitioned. 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 harmonize 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 favor 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, is 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 their 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 proscription 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 those 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 an 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 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 gunwale 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 favorite, 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,) they 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 an 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 favor, 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.

The Constitution of England is never to have a quietus; it is to be continually vilified, attacked, reproached, resisted; instead of being the hope and sure anchor in all storms, instead of being the means of redress to all grievances, itself is the grand grievance of the nation, our shame instead of our glory. If the only specific plan proposed, individual personal representation, is directly rejected by the person who is looked on as the great support of this business, then the only way of considering it is a question of convenience. An honorable gentleman prefers the individual to the present. He therefore himself sees no middle term whatsoever, and therefore prefers, of what he sees, the individual: this is the only thing distinct and sensible that has been advocated. He has, then, a scheme, which is the individual representation,—he is not at a loss, not inconsistent,—which scheme the other right honorable gentleman reprobates. Now what does this go to, but to lead directly to anarchy? For to discredit the only government which he either possesses or can project, what is this but to destroy all government? and this is anarchy. My right honorable friend, in supporting this motion, disgraces his friends and justifies his enemies in order to blacken the Constitution of his country, even of that House of Commons which supported him. There is a difference between a moral or political exposure of a public evil relative to the administration of government, whether in men or systems, and a declaration of defects, real or supposed, in the fundamental constitution of your country. The first may be cured in the individual by the motives of religion, virtue, honor, fear, shame, or interest. Men may be made to abandon also false systems, by exposing their absurdity or mischievous tendency to their own better thoughts, or to the contempt or indignation of the public; and after all, if they should exist, and exist uncorrected, they only disgrace individuals as fugitive opinions. But it is quite otherwise with the frame and constitution of the state: if that is disgraced, patriotism is destroyed in its very source. No man has ever willingly obeyed, much less was desirous of defending with his blood, a mischievous and absurd scheme of government. Our first, our dearest, most comprehensive relation, our country, is gone.

It suggests melancholy reflections, in consequence of the strange course we have long held, that we are now no longer quarrelling about the character, or about the conduct of men, or the tenor of measures, but we are grown out of humor with the English Constitution itself: this is become the object of the animosity of Englishmen. This Constitution in former days used to be the admiration and the envy of the world: it was the pattern for politicians, the theme of the eloquent, the meditation of the philosopher, in every part of the world. As to Englishmen, it was their pride, their consolation. By it they lived, for it they were ready to die. Its defects, if it had any, were partly covered by partiality, and partly borne by prudence. Now all its excellencies are forgot, its faults are now forcibly dragged into day, exaggerated by every artifice of representation. It is despised and rejected of men, and every device and invention of ingenuity or idleness set up in opposition or in preference to it. It is to this humor, and it is to the measures growing out of it, that I set myself (I hope not alone) in the most determined opposition. Never before did we at any time in this country meet upon the theory of our frame of government, to sit in judgment on the Constitution of our country, to call it as a delinquent before us, and to accuse it of every defect and every vice,—to see whether it, an object of our veneration, even our adoration, did or did not accord with a preconceived scheme in the minds of certain gentlemen. Cast your eyes on the journals of Parliament. It is for fear of losing the inestimable treasure we have that I do not venture to game it out of my hands for the vain hope of improving it. I look with filial reverence on the Constitution of my country, and never will cut it in pieces, and put it into the kettle of any magician, in order to boil it, with the puddle of their compounds, into youth and vigor. On the contrary, I will drive away such pretenders; I will nurse its venerable age, and with lenient arts extend a parent's breath.

SPEECH

ON

A MOTION, MADE BY THE RIGHT HON. WILLIAM DOWDESWELL,

MARCH 7, 1771,

FOR LEAVE TO BRING IN

A BILL FOR EXPLAINING THE POWERS OF JURIES IN PROSECUTIONS FOR LIBELS.

TOGETHER WITH

A LETTER IN VINDICATION OF THAT MEASURE,

AND

A COPY OF THE PROPOSED BILL

I have always understood that a superintendence over the doctrines as well as the proceedings of the courts of justice was a principal object of the constitution of this House,—that you were to watch at once over the lawyer and the law,—that there should be an orthodox faith, as well as proper works: and I have always looked with a degree of reverence and admiration on this mode of superintendence. For, being totally disengaged from the detail of juridical practice, we come something perhaps the better qualified, and certainly much the better disposed, to assert the genuine principle of the laws, in which we can, as a body, have no other than an enlarged and a public interest. We have no common cause of a professional attachment or professional emulations to bias our minds; we have no foregone opinions which from obstinacy and false point of honor we think ourselves at all events obliged to support. So that, with our own minds perfectly disengaged from the exercise, we may superintend the execution of the national justice, which from this circumstance is better secured to the people than in any other country under heaven it can be. As our situation puts us in a proper condition, our power enables us to execute this trust. We may, when we see cause of complaint, administer a remedy: it is in our choice by an address to remove an improper judge, by impeachment before the peers to pursue to destruction a corrupt judge, or by bill to assert, to explain, to enforce, or to reform the law, just as the occasion and necessity of the case shall guide us. We stand in a situation very honorable to ourselves and very useful to our country, if we do not abuse or abandon the trust that is placed in us.

The question now before you is upon the power of juries in prosecuting for libels. There are four opinions:—1. That the doctrine as held by the courts is proper and constitutional, and therefore should not be altered; 2. That it is neither proper nor constitutional, but that it will be rendered worse by your interference; 3. That it is wrong, but that the only remedy is a bill of retrospect; 4. The opinion of those who bring in the bill, that the thing is wrong, but that it is enough to direct the judgment of the court in future.

The bill brought in is for the purpose of asserting and securing a great object in the juridical constitution of this kingdom, which, from a long series of practices and opinions in our judges, has in one point, and in one very essential point, deviated from the true principle.

It is the very ancient privilege of the people of England, that they shall be tried, except in the known exceptions, not by judges appointed by the crown, but by their own fellow-subjects, the peers of that county court at which they owe their suit and service; and out of this principle the trial by juries has grown. This principle has not, that I can find, been contested in any case by any authority whatsoever; but there is one case in which, without directly contesting the principle, the whole substance, energy, and virtue of the privilege is taken out of it,—that is, in the case of a trial by indictment or information for a libel. The doctrine in that case, laid down by several judges, amounts to this: that the jury have no competence, where a libel is alleged, except to find the gross corporeal facts of the writing and the publication, together with the identity of the things and persons to which it refers; but that the intent and the tendency of the work, in which intent and tendency the whole criminality consists, is the sole and exclusive province of the judge. Thus having reduced the jury to the cognizance of facts not in themselves presumptively criminal, but actions neutral and indifferent, the whole matter in which the subject has any concern or interest is taken out of the hands of the jury: and if the jury take more upon themselves, what they so take is contrary to their duty; it is no moral, but a merely natural power,—the same by which they may do any other improper act, the same by which they may even prejudice themselves with regard to any other part of the issue before them. Such is the matter, as it now stands in possession of your highest criminal courts, handed down to them from very respectable legal ancestors. If this can once be established in this case, the application in principle to other cases will be easy, and the practice will run upon a descent, until the progress of an encroaching jurisdiction (for it is in its nature to encroach, when once it has passed its limits) coming to confine the juries, case after case, to the corporeal fact, and to that alone, and excluding the intention of mind, the only source of merit and demerit, of reward or punishment, juries become a dead letter in the Constitution.

For which reason it is high time to take this matter into the consideration of Parliament: and for that purpose it will be necessary to examine, first, whether there is anything in the peculiar nature of this crime that makes it necessary to exclude the jury from considering the intention in it, more than in others. So far from it, that I take it to be much less so from the analogy of other criminal cases, where no such restraint is ordinarily put upon them. The act of homicide is primâ facie criminal; the intention is afterwards to appear, for the jury to acquit or condemn. In burglary do they insist that the jury have nothing to do but to find the taking of goods, and that, if they do, they must necessarily find the party guilty, and leave the rest to the judge, and that they have nothing to do with the word felonicè in the indictment?