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the house, are of opinion, that this national church establishment is a great national benefit, a great public blessing, and that its existence or its non-existence of course, is a thing by no means indifferent to the public welfare : then, to them, its danger or its safety must enter deeply into every question which has a relation to it. It is not because ungrounded alarms have been given, that there never can exist a real danger; perhaps the worst effect of an ungrounded alarm, is to make people insensible to the approach of a real peril. Quakerism is strict, methodical, in its nature highly aristocratical, and so regular, that it has brought the whole community to the condition of one family; but it does not actually interfere with the government. The principle of your petitioners is no passive conscientious dissent on account of an over-scrupulous habit of mind; the dissent on their part is fundamental, goes to the very root; and it is at issue not upon this rite or that ceremony, on this or that school opinion ; but upon this one question of an establishment, as unchristian, unlawful, contrary to the Gospel, and to natural right, popish and idolatrous. These are the principles violently and fanatically held and pursued—taught to their children, who are sworn at the altar like Hannibal. The war is with the establishment itself, no quarter, no compromise. As a party, they are infinitely mischievous; see the declarations of Priestley and Price—declarations you will say, of hot men. Likely enough—but who are the cool men who have disclaimed them not one—no, not one. Which of them has ever told you that they do not mean to destroy the church, if ever it should be in their power: Which of them has told you that this would not be the first and favourite use of any power they should get 2 not one— no, not one. Declarations of hot men The danger is thence that they are under the conduct of hot men; falsos in amore odia non fingere. They say, they are well affected to the state, and mean only to destroy the church. If this be the utmost of their meaning, you must first consider whether you wish your church establishment to be destroyed ; if you do, you had much better do it now in temper, in a grave, moderate, and parliamentary way. But if you think otherwise, and that you think it to be an invaluable blessing, a way fully sufficient to nourish a manly, rational, solid, and at the same time humble piety; if you find it well fitted to the frame and pattern of your civil constitution; if you find it a barrier against fanaticism, infidelity and atheism ; if you find that it furnishes support to the human mind in the afflictions and distresses of the world, consolation in sickness, pain, poverty, and death; if it dignifies our nature with the hope of immortality, leaves inquiry free whilst it preserves an authority to teach where authority only can teach, communia altaria, aque ac patriam, diligite, colite, forete. :* 3& # #: × # :* x:

In the discussion of this subject, which took place in the year 1790, Mr. Burke declared his intention, in case the motion for repealing the test acts had been agreed to, of proposit; to substitute the following test in the room of what was intended to be repealed. “I, A. B. do, in the presence of God, sincerely profess and believe, that a religious establishment in this state, is not contrary to the law of God, or disagreeable to the law of nature, or to the true principles of the christian religion, or that it is noxious to the community; and I do sincerely promise and engage, before God, that I never will, by any conspiracy, contrivance, or political device whatever, attempt, or abet others in any attempt, to subvert the constitution of the church of England, as the same is now by law established, and that I will not employ any power or influence which l may derive from any office corporate, or any other office, which I hold, or shall hold under his majesty, his heirs and successors, to destroy and subvert the same; or, to cause members to be elected into any corporation, or into parliament, give my vote in the election of any member or members of parliament, or into any office, for, or on account of their attachment to any other, or different religious opinions or establishments, or with any hope that they may promote the same to the prejudice of the established church, but will dutifully and peaceably content myself with my private liberty of conscience, as the same is allowed by law.”

“So help me God.”

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On the motion made in the house of commons, the 7th of Feb. ruary, 1771, relative to the Middlesex election.*

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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 an 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 7 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 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 o: ground upon which we stand in this question. I could wish, indeed, that they who advise 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 question 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 legislative 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 corruptibility and our corruption, render it necessary to fix some bound, to plant some land-mark which we are never to exceed. This 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 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;

* This motion, which was for leave to bring in a bill to ascertain the rights of the electors in respect to the eligibility of persons to serve in parliament, was rejected by a majority of 167 against 103.

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 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 er vi termini, and inclusively comprehended in the * sion, is not the incapacity voted in the expulsion ? Are they hot 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

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