The Portable Edmund Burke (Portable Library) (32 page)

First, on this head, I lay it down as a fundamental rule in the law and Constitution 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 constituents. But the first thing that was done on the restoration of the Constitution 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 assumed 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 justitiam,
—that is, to make open and liberal justice. But in criminal matters this parity of reason and these analogies 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 class of incapacities, they have no hardship 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 Coke 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 which 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. Nobody will, I hope, assert 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.

But instead of standing upon this ground, they introduce another question wholly foreign to it: Whether it ought not to be submitted to as if it were law? And then the question is,—By the Constitution of this country, what degree of submission is due to the authoritative acts of a limited power? This question of submission, determine it how you please, has nothing to do in this discussion and in this House. Here it is not, how long the people are bound to tolerate the illegality of our judgments, but whether we have a right to substitute our occasional opinion in the place of law, so as to deprive the citizen of his franchise....

 

I AM SORRY I cannot conclude without saying a word on a topic touched upon by my worthy colleague. I wish that topic had been passed by at a time when I have so little leisure to discuss it. But since he has thought proper to throw it out, I owe you a clear explanation of my poor sentiments on that subject.

He tells you that “the topic of instructions has occasioned much altercation and uneasiness in this city”; and he expresses himself (if I understand him rightly) in favor of the coercive authority of such instructions.

Certainly, Gentlemen, it ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinions high respect; their business unremitted attention. It is his duty to sacrifice his repose, his pleasure, his satisfactions, to theirs,—and above all, ever, and in all cases, to prefer their interest to his own.

But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure,—no, nor from the law and the Constitution. They are a trust from Providence, for the abuse of which he is deeply answerable.Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.

My worthy colleague says, his will ought to be subservient to yours. If that be all, the thing is innocent. If government were a matter of will upon any side, yours, without question, ought to be superior. But government and legislation are matters of reason and judgment, and not of inclination; and what sort of reason is that in which the determination precedes the discussion, in which one set of men deliberate and another decide, and where those who form the conclusion are perhaps three hundred miles distant from those who hear the arguments?

To deliver an opinion is the right of all men; that of constituents is a weighty and respectable opinion, which a representative ought always to rejoice to hear, and which he ought always most seriously to consider. But
authoritative
instructions,
mandates
issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience,—these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our Constitution.

Parliament is not a
congress
of ambassadors from different and hostile interests, which interests each must maintain, as an agent and advocate, against other agents and advocates; but Parliament is a
deliberative
assembly of one nation, with one interest, that of the whole—where not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole.You choose a member, indeed; but when you have chosen him, he is not member of Bristol, but he is a member of
Parliament.
If the local constituent should have an interest or should form an hasty opinion evidently opposite to the real good of the rest of the community, the member for that place ought to be as far as any other from any endeavor to give it effect. I beg pardon for saying so much on this subject; I have been unwillingly drawn into it; but I shall ever use a respectful frankness of communication with you. Your faithful friend, your devoted servant, I shall be to the end of my life: a flatterer you do not wish for. On this point of instructions, however, I think it scarcely possible we ever can have any sort of difference. Perhaps I may give you too much, rather than too little trouble.

From the first hour I was encouraged to court your favor, to this happy day of obtaining it, I have never promised you anything but humble and persevering endeavors to do my duty. The weight of that duty, I confess, makes me tremble; and whoever well considers what it is, of all things in the world, will fly from what has the least likeness to a positive and precipitate engagement. To be a good member of Parliament is, let me tell you, no easy task,—especially at this time, when there is so strong a disposition to run into the perilous extremes of servile compliance or wild popularity. To unite circumspection with vigor is absolutely necessary, but it is extremely difficult. We are now members for a rich commercial
city;
this city, however, is but a part of a rich commercial
nation,
the interests of which are various, multiform, and intricate. We are members for that great nation, which, however, is itself but part of a great
empire,
extended by our virtue and our fortune to the farthest limits of the East and of the West. All these wide-spread interests must be considered, —must be compared,—must be reconciled, if possible. We are members for
a free
country; and surely we all know that the machine of a free constitution is no simple thing, but as intricate and as delicate as it is valuable. We are members in a great and ancient
monarchy;
and we must preserve religiously the true, legal rights of the sovereign, which form the keystone that binds together the noble and well-constructed arch of our empire and our Constitution. A constitution made up of balanced powers must ever be a critical thing. As such I mean to touch that part of it which comes within my reach. I know my inability, and I wish for support from every quarter. In particular I shall aim at the friendship, and shall cultivate the best correspondence, of the worthy colleague you have given me.

I trouble you no farther than once more to thank you all: you, Gentlemen, for your favors; the candidates, for their temperate and polite behavior; and the sheriffs, for a conduct which may give a model for all who are in public stations.