Complete Works of Edmund Burke

by Edmund Burke

  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, æque ac patriam, diligite, colite, fovete.

  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the Test Acts had been agreed to, of proposing to substitute the following test in the room of what was intended to be repealed: —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 I 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.”

  SPEECH ON THE MOTION MADE IN THE HOUSE OF COMMONS, FEBRUARY 7, 1771, RELATIVE TO THE MIDDLESEX ELECTION.

  NOTE.

  The motion supported in the following Speech, 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.

  SPEECH.

  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? 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 clamor? 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 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 landmark, 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: 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 di
scretion; 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 winch 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....

  SPEECH ON A BILL FOR SHORTENING THE DURATION OF PARLIAMENTS. MAY 8, 1780.

  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 people; 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!