« PreviousContinue »
this a false fact, my lords? Or have I given an unfair representation of it? Will any man presume to affirm that colonel Luttrell is the free choice of the electors of Middlesex? We all know the contrary. We all know that Mr. Wilkes (whom I mention without either praise or censure) was the favourite of the county, and chosen by a very great and acknowledged majority, to represent them in parliament. If the noble lord dislikes the manner in which these facts are stated, I shall think myself happy in being advised by him how to alter it. I am very little anxious about terms, provided the substances be preserved; and these are facts, my lords, which I am sure will always retain their weight and importance, in whatever form of language they are described.
Now, my lords, since I have been forced to enter into the explanation of an amendment, in which nothing less than the genius of penetration could have discovered an obscurity, and having, as I hope, redeemed myself in the opinion of the house, having redeemed my motion from the severe representation given of it by the noble lord, I must a little longer entreat your lordships' indulgence. The constitution of this country has been openly invaded in fact; and I have heard, with horrour and astonishment that very invasion defended upon principle. What is this mysterious power, undefined by law, unknown to the subject, which we must not approach without awe, nor speak of without reverence, which no man may question, and to which all men must submit? My lords, I thought the slavish doctrine of passive obedience had long since been exploded; and, when our kings were obliged to confess that their title to the crown, and the rule of their government, had no other foundation than the known laws of the land, I never expected to hear a divine right, or a divine infallibility, attributed to any other branch of the legislature. My lords, I beg to be understood. No man respects the house of commons more than I do, or would contend more strenuously than I would, to preserve to them their just and legal authority. Within
the bounds prescribed by the constitution, that authority is necessary to the well being of the people: beyond that line every exertion of power is arbitrary, is illegal; it threatens tyranny to the people, and destruction to the state. Power without right is the most odious and detestable object that can be offered to the human imagination. It is not only pernicious to those who are subject to it, but tends to its own destruction. It is what my noble friend has truly described it: Res detestabilis et caduca. My lords, I acknowledge the just power, and reverence the constitution of the house of commons. It is for their own sakes that I would prevent their assuming a power which the constitution has denied them, lest, by grasping at an authority they have no right to, they should forfeit that which they legally possess. My lords, I affirm that they have betrayed their constituents, and violated the constitution. Under pretence of declaring the law, they have made a law, and united in the same persons the office of legislator and of judge.
I shall endeavour to adhere strictly to the noble lord's doctrine, which is, indeed, impossible to mistake, so far as my memory will permit me to preserve his expressions. He seems fond of the word jurisdiction; and I confess, with the force and effect which he has given it, it is a word of copious meaning and wonderful extent. If his lordship's doctrine be well founded, we must renounce all those political maxims by which our understandings have hitherto been directed, and even the first elements of learning taught us in our schools when we were schoolboys. My lords, we knew that jurisdiction was nothing more than Jus dicere; we knew that Legem facere and Legem dicere were powers clearly distinguished from each other in the nature of things, and wisely seperated by the wisdom of the English constitution; but now, it seems, we must adopt a new system of thinking. The house of commons, we are told, have a
* Lord Lyttleton.
supreme jurisdiction; and there is no appeal from their sentence; and that wherever they are competent judges, their decision must be received and submitted to, as ipso facto, the law of the land. My lords, I am a plain man, and have been brought up in a religious reverence for the original simplicity of the laws of England. By what sophistry they have been perverted, by what artifices they have been involved in obscurity, is not for me to explain; the principles, however, of the English laws, are still sufficiently clear: they are founded in reason, and are the masterpiece of the human understanding; but it is in the text that I would look for a direction to my judgment, not in the commentaries of modern professors. The noble lord assures us, that he knows not in what code the law of parliament is to be found; that the house of commons, when they act as judges, have no law to direct them but their own wisdom; that their decision is law; and if they determine wrong, the subject has no appeal but to Heaven. What then, my lords, are all the generous efforts of our ancestors, are all those glorious contentions, by which they meant to secure to themselves, and to transmit to their posterity a known law, a certain rule of living, reduced to this conclusion, that instead of the arbitrary power of a king, we must submit to the arbitrary power of a house of commons? If this be true, what benefit do we derive from the exchange? Tyranny, my lords, is detestable in every shape; but in none so formidable as when it is assumed and exercised by a number of tyrants. But, my lords, this is not the fact; this is not the constitution. We have a law of parliament. We have a code in which every honest man may find it. We have Magna Charta, we have the Statute Book, and the Bill of Rights.
If a case should arise unknown to these great authorities, we have still that plain English reason left, which is the foundation of all our English jurisprudence. That reason tells us, that every judicial court, and every political society, must be vested with those powers and privileges which are necessary for per
forming the office to which they are appointed. It tells us also, that no court of justice can have a power inconsistent with, or paramount to, the known laws of the land; that the people, when they choose their representatives, never mean to convey to them a power of invading the rights, or trampling upon the liberties of those whom they represent. What security would they have for their rights, if once they admitted, that a court of judicature might determine every question that came before it, not by any known, positive law, but by the vague, indeterminate, arbitrary rule, of what the noble lord is pleased to call the wisdom of the court? With respect to the decision of the courts of justice, I am far from denying them their due weight and authority; yet, placing them in the most respectable view, I still consider them, not as law, but as an evidence of the law; and before they can arrive even at that degree of authority, it must appear, that they are founded in, and confirmed by, reason; that they are supported by precedents taken from good and moderate times; that they do not contradict any positive law; that they are submitted to without reluctance, by the people; that they are unquestioned by the legislature (which is equivalent to a tacit confirmation) and what, in my judgment, is by far the most important, that they do not violate the spirit of the constitution. My lords, this is not a vague or loose expression. We all know what the constitution is. We all know, that the first principle of it is, that the subject shall not be governed by the arbitrium of any one man, or body of men (less than the whole legislature) but by certain laws, to which he has virtually given his consent, which are open to him to examine, and not beyond his ability to understand. Now, my lords, I affirm, and am ready to maintain, that the late decision of the house of commons upon the Middlesex election, is destitute of every one of those properties and conditions which I hold to be essential to the legality of such a decision. It is not founded in reason; for it carries with it a contradiction, that the representative should perform
the office of the constituent body. It is not supported by a single precedent; for the case of sir R. Walpole is but a half precedent, and even that half is imperfect. Incapacity was indeed declared; but his crimes are stated as the ground of the resolution, and his opponent was declared to be not duly elected, even after his incapacity was established. It contradicts Magna Charta and the Bill of Rights, by which it is provided, that no subject shall be deprived of his freehold, unless by the judgment of his peers, or the law of the land; and that elections of members to serve in parliament shall be free; and so far is this decision from being submitted to by the people, that they have taken the strongest measures, and adopted the most positive language to express their discontent. Whether it will be questioned by the legislature, will depend upon your lordships' resolution; but that it violates the spirit of the constitution, will, I think, be disputed by no man who has heard this day's debate, and who wishes well to the freedom of his country: yet, if we are to believe the noble lord, this great grievance, this manifest violation of the first principles of the constitution, will not admit of a remedy; is not even capable of redress, unless we appeal at once to heaven. My lords, I have better hopes of the constitution, and a firmer confidence in the wisdom and constitutional authority of this house. It is your ancestors, my lords, it is to the English barons that we are indebted for the laws and constitution we possess. Their virtues were rude and uncul. tivated, but they were great and sincere. Their understandings were as little polished as their manners, but they had hearts to distinguish right from wrong; they had heads to distinguish truth from falsehood; they understood the rights of humanity, and they had spirit to maintain them.
My lords, I think that history has not done justice to their conduct, when they obtained from their sovereign, that great acknowledgment of national rights contained in Magna Charta: they did not confine it to themselves alone, but delivered it as a com