The case of John Wilkes
MY LORDS, There is one plain maxim, to which I have invariably adhered through life: that in every question in which my liberty or my property were concerned, I should consult and be determined by the dictates of common sense. I confess, my Lords, that I am apt to distrust the refinements of learning, because I have seen the ablest and the most learned men equally liable to deceive themselves and to mislead others. The condition of human nature would be lamentable indeed, if nothing less than the greatest learning and talents, which fall to the share of so small a number of men, were sufficient to direct our judgment and our conduct. But Providence has taken better care of our happiness, and given us, in the simplicity of common sense, a rule for our direction, by which we can never be misled. I confess, my Lords, I had no other guide in drawing up the amendment which I submitted to your consideration; and, before I heard the opinion of the noble Lord who spoke last, I did not conceive that it was even within the limits of possibility for the greatest human genius, the most subtle understanding, or the acutest wit, so strangely to misrepresent my meaning, and to give it an interpretation so entirely foreign from what I intended to express, and from that sense which the very terms of the amendment plainly and distinctly carry with them. If there be the smallest foundation for the censure thrown upon me by that noble Lord: if, either expressly, or by the most distant implication, I have said or insinuated any part of what the noble Lord has charged me with, discard my opinion forever, discard the motion with contempt.
My Lords, I must beg the indulgence of the House. Neither will my health permit me, nor do I pretend to be qualified to follow that learned Lord minutely through the whole of his argument. No man is better acquainted with his abilities and learning, nor has a greater respect for them than I have. I have had the pleasure of sitting with him in the other House, and always listened to him with attention. I have not now lost a word of what he said, nor did I ever. Upon the present question I meet him without fear. The evidence which truth carries with it is superior to all argument; it neither wants the support, nor dreads the opposition of the greatest abilities. If there be a single word in the amendment to justify the interpretation which the noble Lord has been pleased to give it, I am ready to renounce the whole. Let it be read, my Lords; let it speak for itself. [It was read.]
In what instance does it interfere with the privileges of the House of Commons? In what respect does it question their jurisdiction, or suppose an authority in this House to arraign the justice of their sentence? I am sure that every Lord who hears me will bear me witness, that I said not one word touching the merits of the Middlesex election. So far from conveying any opinion upon that matter in the amendment, I did not even in discourse deliver my own sentiments upon it. I did not say that the House of Commons had done either right or wrong; but, when his Majesty was pleased to recommend it to us to cultivate unanimity among ourselves, I thought it the duty of this House, as the great hereditary council of the Crown, to state to his Majesty the distracted condition of his dominions, together with the events which had destroyed unanimity among his subjects. But, my Lords, I stated events merely as facts, without the smallest addition either of censure or of opinion. They are facts, my Lords, which I am not only convinced are true, but which I know are indisputably true. For example, my Lords: will any man deny that discontents prevail in many parts of his Majesty's dominions? or that those discontents arise from the proceedings of the House of Commons touching the declared incapacity of Mr. Wilkes? It is impossible. No man can deny a truth so notorious. Or will any man deny that those proceedings refused, by a resolution of one branch of the Legislature only, to the subject his common right? Is it not indisputably true, my Lords, that Mr. Wilkes had a common right, and that he lost it no other way but by a resolution of the House of Commons? My Lords, I have been tender of misrepresenting the House of Commons. I have consulted their journals, and have taken the very words of their own resolution. Do they not tell us in so many words, that Mr. Wilkes having been expelled, was thereby rendered incapable of serving in that Parliament? And is it not their resolution alone which refuses to the subject his common right? The amendment says farther, that the electors of Middlesex are deprived of their free choice of a representative. Is 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 favorite 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 substance 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 horror 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 (Lord Lyttleton) has truly described it, Res detestabilis et caduca (A thing hateful, and destined to destruction.). 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 pretense of declaring the law, they have made a law, and united in the same persons the office of legislator and of judge!
I shall endeavor 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 in our schools when we were schoolboys. My Lords, we knew that jurisdiction was nothing more than "jus dicere." We knew that legem facere (to make law) and legem dicere (to declare law) were powers clearly distinguished from each other in the nature of things, and wisely separated 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 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 performing 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 on 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.
(1.) It is not founded in reason; for it carries with it a contradiction, that the representative should perform the office of the constituent body.
(2.) It is not supported by a single precedent; for the case of Sir Robert 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.
(3.) 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.
(4.) 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. It 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 to 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 uncultivated, 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 common blessing to the whole people. They did not say, these are the rights of the great barons, or these are the rights of the great prelates. No, my Lords, they said, in the simple Latin of the times, 'nullus liber homo (no free man), and provided as carefully for the meanest subject as for the greatest. These are uncouth words, and sound but poorly in the ears of scholars; neither are they addressed to the criticism of scholars, but to the hearts of free men. These three words, nullus liber homo, have a meaning which interests us all. They deserve to be remembered—they deserve to be inculcated in our minds—they are worth all the classics. Let us not, then, degenerate from the glorious example of our ancestors. Those iron barons - for so I may call them when compared with the silken barons of modern days - were the guardians of the people; yet their virtues, my Lords, were never engaged in a question of such importance as the present. A breach has been made in the Constitution - the battlements are dismantled - the citadel is open to the first invader - the walls totter - the Constitution is not tenable. What remains, then, but for us to stand foremost in the breach, and repair it, or perish in it?
Great pains have been taken to alarm us with the consequences of a difference between the two houses of Parliament; that the House of Commons will resent our presuming to take notice of their proceedings; that they will resent our daring to advise the Crown, and never forgive us for attempting to save the state. My Lords, I am sensible of the importance and difficulty of this great crisis: at a moment such as this, we are called upon to do our duty, without dreading the resentment of any man. But if apprehensions of this kind are to affect us, let us consider which we ought to respect most, the representative or the collective body of the people. My Lords, five hundred gentlemen are not ten millions; and if we must have a contention, let us take care to have the English nation on our side. If this question be given up, the freeholders of England are reduced to a condition baser than the peasantry of Poland. If they desert their own cause, they deserve to be slaves! My Lords, this is not merely the cold opinion of my understanding, but the glowing expression of what I feel. It is my heart that speaks. I know I speak warmly, my Lords; but this warmth shall neither betray my argument nor my temper. The kingdom is in a flame. As mediators between the King and people, it is our duty to represent to him the true condition and temper of his subjects. It is a duty which no particular respects should hinder us from performing; and whenever his Majesty shall demand our advice, it will then be our duty to inquire more minutely into the causes of the present discontents. Whenever that inquiry shall come on, I pledge myself to the House to prove that, since the first institution of the House of Commons, not a single precedent can be produced to justify their late proceedings. My noble and learned friend (the Lord Chancellor Camden) has pledged himself to the House that he will support that assertion.
My Lords, the character and circumstances of Mr. Wilkes have been very improperly introduced into this question, not only here, but in that court of judicature where his cause was tried - I mean the House of Commons. With one party he was a patriot of the first magnitude; with the other, the vilest incendiary. For my own part, I consider him merely and indifferently as an English subject, possessed of certain rights which the laws have given him, and which the laws alone can take from him. I am neither moved by his private vices nor by his public merits. In his person, though he were the worst of men, I contend for the safety and security of the best. God forbid, my Lords, that there should be a power in this country of measuring the civil rights of the subject by his moral character, or by any other rule but the fixed laws of the land! I believe, my Lords, I shall not be suspected of any personal partiality to this unhappy man. I am not very conversant in pamphlets or newspapers; but, from what I have heard, and from the little I have read, I may venture to affirm, that I have had my share in the compliments which have come from that quarter. As for motives of ambition - for I must take to myself a part of the noble Duke's insinuation - I believe, my Lords, there have been times in which I have had the honor of standing in such favor in the closet, that there must have been something extravagantly unreasonable in my wishes if they might not all have been gratified. After neglecting those opportunities, I am now suspected of coming forward, in the decline of life, in the anxious pursuit of wealth and power which it is impossible for me to enjoy. Be it so! There is one ambition, at least, which I ever will acknowledge, which I will not renounce but with my life. It is the ambition of delivering to my posterity those rights of freedom which I have received from my ancestors. I am not now pleading the cause of an individual, but of every freeholder in England. In what manner this House may constitutionally interpose in their defense, and what kind of redress this case will require and admit of, is not at present the subject of our consideration. The amendment, if agreed to, will naturally lead us to such an inquiry. That inquiry may, perhaps, point out the necessity of an act of the Legislature, or it may lead us, perhaps, to desire a conference with the other House; which one noble Lord affirms is the only parliamentary way of proceeding, and which another noble Lord assures us the House of Commons would either not come to, or would break off with indignation. Leaving their Lordships to reconcile that matter between themselves, I shall only say, that before we have inquired, we can not be provided with materials; consequently, we are not at present prepared for a conference.
It is not impossible, my Lords, that the inquiry I speak of may lead us to advise his Majesty to dissolve the present Parliament; nor have I any doubt of our right to give that advice, if we should think it necessary. His Majesty will then determine whether he will yield to the united petitions of the people of England, or maintain the House of Commons in the exercise of a legislative power, which heretofore abolished the House of Lords, and overturned the monarchy. I willingly acquit the present House of Commons of having actually formed so detestable a design; but they can not themselves foresee to what excesses they may be carried hereafter; and, for my own part, I should be sorry to trust to their future moderation. Unlimited power is apt to corrupt the minds of those who possess it; and this I know, my Lords, that where law ends, tyranny begins!