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ease or my own, rather than the weight and importance of this question, I ought to make some apology to you, perhaps some apology to myself, for having detained your attention so long. I know on what ground' I tread. This subject, at one tinie taken up with so much fervour and zeal, is no longer a favourite in this house. The house itself has undergone a great and signal revolution. To some the subject is strange and uncoutk ; to several harsh and distasteful; to the relics of the last parliament it is a matter of fear and apprehension. It is natural for those who have seen their friends sink in the tornado which raged during the last shift of the monsoon, and have hardly escaped on the planks of the general wreck, it is but too natural for them, as soon as they make the rocks and quicksands of their former disasters, to put about their new-built barks, and, as much as possible, to keep aloof from this perilous lee shore.
But let us do what we please to put India from our thoughts, we can do nothing to separate it from our public interest and our national reputation. Our attempts to banish this importunate duty, will only make it return upon us again and again, and every time in a shape more unpleasant than the former. A government has been fabricated for that great province; the right honourable gentleman says, that, therefore, you ought not to examine into its.conduct. Heavens ! what an argument is this ! We are not to examine into the conduct of the direction, because it is an old government: we are not to examine into this board of controul, because it is a new one. Then we are only to examine into the conduct of those who have no conduct to account for. Unfortunately the basis of this new government has been laid on old condemned.delinquents, and its superstructure is raised ont of prosecutors turned into protectors. The event has been such as might be expected. But if it had been otherwise constituted ; had it been constituted even as I wished, and as the mover of this question had planned, the better part of the proposed establishment was in the publicity of its proceedings ; in its perpetual responsibility to parliament. Without this check, what is our government at home, even awed, as every European government is, by an audience formed of the other states of Europe, by the applause or condemnation of the discerning and critical company before which it acts ? But if the scene on the other side of the globe, which tempts, invites, almost compels to tyranny and rapine, be not inspected with the eye of a severe and unremitting vigilance, shame and destruction must ensue. For one, the worst event of this day, though it may deject, shall mot break or subdue me: The call upon us is authoritative. Let who will shrink back, I shall be found at my post.. Bafiled, discoun
tenanced, subdued, discrediied, as the cause of justice and humanity is, it will be only the dearer to me. Whoever, therefore, shall at any time bring before you any thing towards the relief of our distressed fellow-citizens in India, and towards a subversion of the present most corrupt and oppressive system for its government, in me shall find a weak I am afraid, but a steady, earnest, and faithful assistant.
SPEECH ON THE MIDDLESEX ELECTION.
7TH FEBRUARY, 1771. [The following nine speeches and parts of speeches were found in Burke's desk after his death by his executors, so that of their genuineness there can be no doubt. I have arranged them in the order of time, a course which Burke's executors omitted to take, but it is important in whose speeches are history as well as oratory. In the memoir I have stated fully the circumstances connected with the delivery of these speeches.) Mr. SPEAKER—In every complicated constitution (and every free constitution is complicated) cases will arise, when the several orders of the state will clash with one another, and disputes will arise about the limits of their several rights and privileges. It may be almost impossible to reconcile them.
Carry the principle on, by which you expelled Mr. Wilkes, there is not a man in the house, hardly a man in the nation, who may not be disqualified. That this house should have no power of expulsion is a hard saying. That this house should have a general discretionary power of disqualification, is a dangerous saying. That the people should not choose their own representative, is a saying that shakes the constitution. That this house should name the representative, is a saying, which, followed by practice, subverts the constitution. They have the right of electing, you have a right of expelling; they of choosing, you of judging, and only of judging, of the choice. What bounds shall be set to the freedom of that choice? Their right is prior to ours, we all originate there. They are the mortal enemies of the House of Commons, who would persuade them to think or to act as if they were a self-originated magistracy, independent of the
LOTE.—This motion, which was for leave to bring in a Bill to ascer cain the Rights of the Electors in respect to the eligibility of persons to &crve in Parliament, was rejected by a majority of 167 against 103.
people, and unconnected with their opinions and feelings. Under a pretence of exalting the dignity, they undermine the very foundations of this house. When the question is asked here, what disturbs the people, whence all this clamour, we apply to the treasury-bench, and they tell us it is from the efforts of libellers, and the wickedness of the people, a worn-out ministerial pretence. If abroad the people are deceived by popular, within we are deluded by ministerial, cant. The question amounts to this, whether you mean to be a legal tribunal, or an arbitrary and despotic assembly. I see and I feel the delicacy and difficulty of the ground upon which we stand in this question. I could wish, indeed, that they, who advised the crown, had not left Parliament in this very ungraceful distress, in which they can neither retract with dignity nor persist with justice. Another Parliament might have satisfied the people without lowering themselves. But our situation is not in our own choice: our conduct in that situation is all that is in our own option. The substance of the qnestion is, to put bounds to your own power by the rules and principles of law. This is, I am sensible, a difficult thing to the corrupt, grasping and ambitious part of human nature. But the very difficulty argues and enforces the necessity of it. First, because the greater the power, the more dangerous the abuse. Since the Revolution, at least, the power of the nation has all flowed with a full tide into the House of Commons. Secondly, because the House of Commons, as it is the most powerful, is the most corruptible part of the whole constitution. Our public wounds cannot be concealed; to be cured, they must be laid open. The public does think we are a corrupt body. In our legis'ative capacity we are, in most instances, esteemed a very wise body. In our judicial, we have no credit, no character at all. Our judgments stink in the nostrils of the people. They think us to be not only without virtue, but without shame. Therefore, the greatness of our power, and the great and just opinion of our corraptibility and our corruption, render it necessary to fix some bound, to plant some landmark, which we are never to exceed. That is what the bill proposes.
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 what
I know that the contrary was the doctrir 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
apo plication 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 vated 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 bafilled. 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