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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 every thing 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.
...; 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 honourable 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 met wand 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 articular brand of unworthiness among our fellow-citizens, is a t of all others the hardest to be borne; and consequently is of all others that act which ought only to be trusted to the le. gislature, 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. :* * :*: :: :* :*: - :*:
SPEECH On a Bill for shortening the duration of Parliaments. *
It is always to be lamented when men are driven to search into the foundations of the commonwealth. It is certainly necessary to resort to the theory of your government, whenever you propose any alteration in the frame of it, whether that alteration means the revival of some former antiquated and forsaken constitution of state, or the introduction of some new improvement in the commonwealth. The object of our deliberation is, to promote the good purposes for which elections have been instituted, and to prevent their inconveniences. If we thought frequent elections attended with no inconvenience, or with but a trifling inconvenience, the strong overruling principle of the constitution would sweep us like a torrent towards them. But your remedy is to be suited to your disease—your present disease, and to your whole disease. That man thinks much too highly, and therefore he thinks weakly and delusively, of any contrivance of human wisdom, who believes that it can make any sort of approach to perfection. There is not, there never was, a principle of government under heaven that does not in the very pursuit of the good it proposes, naturally and inevitably lead into some inconvenience, which makes it absolutely necessary to counterwork and weaken the application of that first principle itself; and to abandon something of the extent of the advantage you proposed by it, in order to prevent also the inconveniences which have arisen from the instrument of all the good you had in view.
To govern according to the sense, and agreeably to the interests of the people, is a great and glorious object of government. This object cannot be obtained but through the medium of popular election; and popular election is a mighty evil. It is such, and so great an evil, that though there are few nations whose monarchs were not originally elective, very few are now elected. They are the distempers of elections that have destroyed all free states. To cure these distempers is difficult, if not impossible; the only thing therefore left to save the commonwealth, is to prevent their return too frequently. The objects in view are, to have parliaments as frequent as they can be, without distracting them in the prosecution of public business; on one hand, to secure their dependence upon the o: on the other, to give them that quiet in their minds, and that ease in their fortunes, as to enable them to perform the most arduous and most painful duty in the world with spirit, with efficiency, with independency, and with experience, as real public counsellors, not as the canvassers at a perpetual election. It is wise to compass as many good ends as possibly you can, and seeing there are inconveniences on both sides, with benefits on both, to give up a part of the benefit to soften the inconvenience. The perfect cure is impracticable, because the disorder is dear to those from whom alone the cure can possibly be derived. The utmost to be done is to palliate, to mitigate, to respite, to put off the evil day of the constitution to its latest possible hour, and may it be a very late one ! This bill I fear would precipitate one of two consequences, I know not which most likely, or which most dangerous; either that the crown, by its constant stated power, influence, and revenue, would wear out all opposition in elections, or that a violent and furious popular spirit would arise. I must see, to satisfy me, the remedies; I must see, from their operation in the cure of the old evil, and in the cure of those new evils which are inseparable from all remedies, how they balance each other, and what is the total result. The excellence of mathematics and metaphysics, is to have but one thing before you; but he forms the best judgment in all moral disquisitions, who has the greatest number and variety of considerations in one view before him, and can take them in with the best possible consideration of the middle results of all. We of the opposition, who are not friends to the bill, give this pledge at least of our integrity and sincerity to the people, that in our situation of systematic opposition to the present ministers, in which all our hope of rendering it effectual depends upon popular interest and favour, we will not flatter them by a surrender of our uninfluenced judgment and opinion; we give a security, that if ever we should be in another situation, no flattery to any other sort of power and influence would induce us to act against the true interests of the people. All are agreed that parliament should not be perpetual; the only question is, What is the most convenient time for their duration ? On which there are three opinions. We are agreed too, that the term ought not to be chosen most likely in its operation to spread corruption, and to augment the already overgrown influence of the crown. On these principles I mean to debate the question. It is easy to pretend a zeal for liberty. Those who think themselves not likely to be encumbered with the performance of their promises, either from their known inability or total indifference about the performance, never fail to entertain the most lofty ideas. They are certainly the most specious, and they cost them neither reflection to frame, nor pains to modify, nor management to support. The task is of another nature to those who mean to promise nothing that it is not in their intention or may possibly be in their power to perform; to those who are bound and principled no more to delude the understandings than to violate the liberty of their fellowsubjects. Faithful watchmen we ought to be over the rights and privileges of the people. But our duty, if we are qualified for it as we ought, is to give them information, and not to receive it from them; we are not to go to school to them to learn the principles of law and government. In doing so, we should not ion, serve, but we should basely and scandalously betray the people, who are not capable of this service by nature, nor in any instance called to it by the constitution. I reverentially look up to the opinion of the people, and with an awe that is almost superstitious. I should be ashamed to show my face before them, if I changed my ground, as they cried up or cried down men, or things, or opinions; if I wawered and shifted about with every change, and joined in it, or opposed, as best answered any low interest or passion; if I held them up hopes, which I knew I never intended, or promised what I well knew I could not perform. Of all these things they are perfect sovereign judges without appeal; but as to the detail o. measures, or to any general schemes of policy, they have neither enough of speculation in the closet, nor of experience in business to decide upon it. They can well see whether we are tools of a court or their honest servants. Of that they can well judge, and I wish that they always exercised their judgment; but of the particular merits of a measure I have other standards. * # 3: # *: :k :*: * That the frequency of elections proposed by this bill has a tendency to increase the power and consideration of the electors, not lessen corruptibility, I do most readily allow; so far it is desirable; this is what it has, I will tell you now what it has not. 1st. It has no sort of tendency to increase their integrity and public spirit, unless an increase of power has an operation upon voters in elections that it has in no other situation in the world, and upon no other part of mankind. 2d. This bill has no tendency to limit the quanWet. W. s 39
* This speech was delivered upon one of those motions which for many successive years were made by Mr. Sawbridge for shortening the duration of Parliaments; but the precise date cannot be ascertained.