by Edmund Burke
The power which they claim, of declaring incapacities, would not be above the just claims of a final judicature, if they had not laid it down as a leading principle, that they had no rule in the exercise of this claim, but their own discretion. Not one of their abettors has ever undertaken to assign the principle of unfitness, the species or degree of delinquency, on which the House of Commons will expel, nor the mode of proceeding upon it, nor the evidence upon which it is established. The direct consequence of which is, that the first franchise of an Englishman, and that on which all the rest vitally depend, is to be forfeited for some offence which no man knows, and which is to be proved by no known rule whatsoever of legal evidence. This is so anomalous to our whole constitution, that I will venture to say, the most trivial right, which the subject claims, never was, nor can be, forfeited in such a manner.
The whole of their usurpation is established upon this method of arguing. We do not make laws. No; we do not contend for this power. We only declare law; and as we are a tribunal both competent and supreme, what we declare to be law becomes law, although it should not have been so before. Thus the circumstance of having no appeal from their jurisdiction is made to imply that they have no rule in the exercise of it: the judgment does not derive its validity from its conformity to the law; but preposterously the law is made to attend on the judgment; and the rule of the judgment is no other than the occasional will of the House. An arbitrary discretion leads, legality follows; which is just the very nature and description of a legislative act.
This claim in their hands was no barren theory. It was pursued into its utmost consequences; and a dangerous principle has begot a correspondent practice. A systematic spirit has been shown upon both sides. The electors of Middlesex chose a person whom the House of Commons had voted incapable; and the House of Commons has taken in a member whom the electors of Middlesex had not chosen. By a construction on that legislative power which had been assumed, they declared that the true legal sense of the country was contained in the minority, on that occasion; and might, on a resistance to a vote of incapacity, be contained in any minority.
When any construction of law goes against the spirit of the privilege it was meant to support, it is a vicious construction. It is material to us to be represented really and bonâ fide, and not in forms, in types, and shadows, and fictions of law. The right of election was not established merely as a matter of form, to satisfy some method and rule of technical reasoning; it was not a principle which might substitute a Titius or a Mævius, a John Doe or Richard Roe, in the place of a man specially chosen; not a principle which was just as well satisfied with one man as with another. It is a right, the effect of which is to give to the people that man, and that man only, whom, by their voices actually, not constructively given, they declare that they know, esteem, love, and trust. This right is a matter within their own power of judging and feeling; not an ens rationis and creature of law: nor can those devices, by which anything else is substituted in the place of such an actual choice, answer in the least degree the end of representation.
I know that the courts of law have made as strained constructions in other cases. Such is the construction in common recoveries. The method of construction which in that case gives to the persons in remainder, for their security and representative, the door-keeper, crier, or sweeper of the court, or some other shadowy being without substance or effect, is a fiction of a very coarse texture. This was however suffered by the acquiescence of the whole kingdom, for ages; because the evasion of the old statute of Westminster, which authorized perpetuities, had more sense and utility than the law which was evaded. But an attempt to turn the right of election into such a farce and mockery as a fictitious fine and recovery, will, I hope, have another fate; because the laws which give it are infinitely dear to us, and the evasion is infinitely contemptible.
The people indeed have been told, that this power of discretionary disqualification is vested in hands that they may trust, and who will be sure not to abuse it to their prejudice. Until I find something in this argument differing from that on which every mode of despotism has been defended, I shall not be inclined to pay it any great compliment. The people are satisfied to trust themselves with the exercise of their own privileges, and do not desire this kind intervention of the House of Commons to free them from the burden. They are certainly in the right. They ought not to trust the House of Commons with a power over their franchises; because the constitution, which placed two other co-ordinate powers to control it, reposed no such confidence in that body. It were a folly well deserving servitude for its punishment, to be full of confidence where the laws are full of distrust; and to give to a House of Commons, arrogating to its sole resolution the most harsh and odious part of legislative authority, that degree of submission which is due only to the legislature itself.
When the House of Commons, in an endeavor to obtain new advantages at the expense of the other orders of the state, for the benefit of the commons at large, have pursued strong measures; if it were not just, it was at least natural, that the constituents should connive at all their proceedings; because we were ourselves ultimately to profit. But when this submission is urged to us, in a contest between the representatives and ourselves, and where nothing can be put into their scale which is not taken from ours, they fancy us to be children when they tell us they are our representatives, our own flesh and blood, and that all the stripes they give us are for our good. The very desire of that body to have such a trust contrary to law reposed in them, shows that they are not worthy of it. They certainly will abuse it; because all men possessed of an uncontrolled discretionary power leading to the aggrandizement and profit of their own body have always abused it: and I see no particular sanctity in our times, that is at all likely, by a miraculous operation, to overrule the course of nature.
But we must purposely shut our eyes, if we consider this matter merely as a contest between the House of Commons and the electors. The true contest is between the electors of the kingdom and the crown; the crown acting by an instrumental House of Commons. It is precisely the same, whether the ministers of the crown can disqualify by a dependent House of Commons, or by a dependent Court of Star Chamber, or by a dependent Court of King’s Bench If once members of Parliament can be practically convinced that they do not depend on the affection or opinion of the people for their political being, they will give themselves over, without even an appearance of reserve, to the influence of the court.
Indeed a Parliament unconnected with the people is essential to a ministry unconnected with the people; and therefore those who saw through what mighty difficulties the interior ministry waded, and the exterior were dragged, in this business, will conceive of what prodigious importance, the new corps of king’s men held this principle of occasional and personal incapacitation, to the whole body of their design.
When the House of Commons was thus made to consider itself as the master of its constituents, there wanted but one thing to secure that House against all possible future deviation towards popularity: an unlimited fund of money to be laid out according to the pleasure of the court.
To complete the scheme of bringing our court to a resemblance to the neighboring monarchies, it was necessary, in effect, to destroy those appropriations of revenue, which seem to limit the property, as the other laws had done the powers, of the crown. An opportunity for this purpose was taken, upon an application to Parliament for payment of the debts of the civil list; which in 1769 had amounted to 513,000l. Such application had been made upon former occasions; but to do it in the former manner would by no means answer the present purpose.
Whenever the crown had come to the commons to desire a supply for the discharging of debts due on the civil list, it was always asked and granted with one of the three following qualifications; sometimes with all of them. Either it was stated, that the revenue had been diverted from its purposes by Parliament; or that those duties had fallen short of the sum for which they were given by Par
liament, and that the intention of the legislature had not been fulfilled; or that the money required to discharge the civil list debt was to be raised chargeable on the civil list duties. In the reign of Queen Anne, the crown was found in debt. The lessening and granting away some part of her revenue by Parliament was alleged as the cause of that debt, and pleaded as an equitable ground, such it certainly was, for discharging it. It does not appear that the duties which were then applied to the ordinary government produced clear above 580,000l. a year; because, when they were afterwards granted to George the First, 120,000l. was added to complete the whole to 700,000l. a year. Indeed it was then asserted, and, I have no doubt, truly, that for many years the net produce did not amount to above 550,000l. The queen’s extraordinary charges were besides very considerable; equal, at least, to any we have known in our time. The application to Parliament was not for an absolute grant of money; but to empower the queen to raise it by borrowing upon the civil list funds.
The civil list debt was twice paid in the reign of George the First. The money was granted upon the same plan which had been followed in the reign of Queen Anne. The civil list revenues were then mortgaged for the sum to be raised, and stood charged with the ransom of their own deliverance.
George the Second received an addition to his civil list. Duties were granted for the purpose of raising 800,000l. a year. It was not until he had reigned nineteen years, and after the last rebellion, that he called upon Parliament for a discharge of the civil list debt. The extraordinary charges brought on by the rebellion, account fully for the necessities of the crown. However, the extraordinary charges of government were not thought a ground fit to be relied on.
A deficiency of the civil list duties for several years before was stated as the principal, if not the sole ground on which an application to Parliament could be justified. About this time the produce of these duties had fallen pretty low; and even upon an average of the whole reign they never produced 800,000l. a year clear to the treasury.
That prince reigned fourteen years afterwards: not only no new demands were made; but with so much good order were his revenues and expenses regulated, that, although many parts of the establishment of the court were upon a larger and more liberal scale than they have been since, there was a considerable sum in hand, on his decease, amounting to about 170,000l. applicable to the service of the civil list of his present Majesty. So that, if this reign commenced with a greater charge than usual, there was enough and more than enough, abundantly to supply all the extraordinary expense. That the civil list should have been exceeded in the two former reigns, especially in the reign of George the First, was not at all surprising. His revenue was but 700,000l. annually; if it ever produced so much clear. The prodigious and dangerous disaffection to the very being of the establishment, and the cause of a pretender then powerfully abetted from abroad, produced many demands of an extraordinary nature both abroad and at home. Much management and great expenses were necessary. But the throne of no prince has stood upon more unshaken foundations than that of his present Majesty.
To have exceeded the sum given for the civil list, and to have incurred a debt without special authority of Parliament, was prima facie, a criminal act: as such, ministers ought naturally rather to have withdrawn it from the inspection, than to have exposed it to the scrutiny of Parliament. Certainly they ought, of themselves, officially to have come armed with every sort of argument, which, by explaining, could excuse, a matter in itself of presumptive guilt. But the terrors of the House of Commons are no longer for ministers.
On the other hand, the peculiar character of the House of Commons, as trustee of the public purse, would have led them to call with a punctilious solicitude for every public account, and to have examined into them with the most rigorous accuracy.
The capital use of an account is, that the reality of the charge, the reason of incurring it, and the justice and necessity of discharging it, should all appear antecedent to the payment. No man ever pays first, and calls for his account afterwards; because he would thereby let out of his hands the principal, and indeed only effectual, means of compelling a full and fair one. But, in national business, there is an additional reason for a previous production of every account. It is a check, perhaps the only one, upon a corrupt and prodigal use of public money. An account after payment is to no rational purpose an account. However, the House of Commons thought all these to be antiquated principles: they were of opinion, that the most Parliamentary way of proceeding was, to pay first what the court thought proper to demand, and to take its chance for an examination into accounts at some time of greater leisure.
The nation had settled 800,000l. a year on the crown, as sufficient for the support of its dignity, upon the estimate of its own ministers. When ministers came to Parliament, and said that this allowance had not been sufficient for the purpose, and that they had incurred a debt of 500,000l., would it not have been natural for Parliament first to have asked how, and by what means, their appropriated allowance came to be insufficient? Would it not have savored of some attention to justice, to have seen in what periods of administration this debt had been originally incurred; that they might discover, and if need were, animadvert on the persons who were found the most culpable? To put their hands upon such articles of expenditure as they thought improper or excessive, and to secure, in future, against such misapplication or exceeding? Accounts for any other purposes are but a matter of curiosity, and no genuine Parliamentary object. All the accounts which could answer any Parliamentary end were refused, or postponed by previous questions. Every idea of prevention was rejected, as conveying an improper suspicion of the ministers of the crown.
When every loading account had been refused, many others were granted with sufficient facility.
But with great candor also, the House was informed, that hardly any of them could be ready until the next session; some of them perhaps not so soon. But, in order firmly to establish the precedent of payment previous to account, and to form it into a settled rule of the House, the god in the machine was brought down, nothing less than the wonder-working law of Parliament. It was alleged, that it is the law of Parliament, when any demand comes from the crown, that the House must go immediately into the committee of supply; in which committee it was allowed, that the production and examination of accounts would be quite proper and regular. It was therefore carried, that they should go into the committee without delay, and without accounts, in order to examine with great order and regularity things that could not possibly come before them. After this stroke of orderly and Parliamentary wit and humor, they went into the committee; and very generously voted the payment.
There was a circumstance in that debate too remarkable to be overlooked. This debt of the civil list was all along argued upon the same footing as a debt of the state, contracted upon national authority. Its payment was urged as equally pressing upon the public faith and honor; and when the whole year’s account was stated, in what is called the budget, the ministry valued themselves on the payment of so much public debt, just as if they had discharged 500,000l. of navy or exchequer bills. Though, in truth, their payment, from the sinking fund, of debt which was never contracted by Parliamentary authority, was, to all intents and purposes, so much debt incurred. But such is the present notion of public credit, and payment of debt. No wonder that it produces such effects.
Nor was the House at all more attentive to a provident security against future, than it had been to a vindictive retrospect to past mismanagements. I should have thought indeed that a ministerial promise, during their own continuance in office, might have been given, though this would have been but a poor security for the public. Mr. Pelham gave such an assurance, and he kept his word. But nothing was capable of extorting from our ministers anything which had the least resemblance to a promise of confining the expenses of the civil list within the limits which had been settled by Parliament. This reserve of theirs I look upon to be equivalent to the clearest declaration,
that they were resolved upon a contrary course.
However, to put the matter beyond all doubt, in the speech from the throne, after thanking Parliament for the relief so liberally granted, the ministers inform the two Houses, that they will endeavor to confine the expenses of the civil government — within what limits, think you? those which the law had prescribed? Not in the least— “such limits as the honor of the crown can possibly admit.”
Thus they established an arbitrary standard for that dignity which Parliament had defined and limited to a legal standard. They gave themselves, under the lax and indeterminate idea of the honor of the crown, a full loose for all manner of dissipation, and all manner of corruption. This arbitrary standard they were not afraid to hold out to both Houses; while an idle and unoperative act of Parliament, estimating the dignity of the crown at 800,000l. and confining it to that sum, adds to the number of obsolete statutes which load the shelves of libraries, without any sort of advantage to the people.
After this proceeding, I suppose that no man can be so weak as to think that the crown is limited to any settled allowance whatsoever. For if the ministry has 800,000l. a year by the law of the land; and if by the law of Parliament all the debts which exceed it are to be paid previously to the production of any account; I presume that this is equivalent to an income with no other limits than the abilities of the subject and the moderation of the court; that is to say, it is such an income as is possessed by every absolute monarch in Europe. It amounts, as a person of great ability said in the debate, to an unlimited power of drawing upon the sinking fund. Its effect on the public credit of this kingdom must be obvious; for in vain is the sinking fund the great buttress of all the rest, if it be in the power of the ministry to resort to it for the payment of any debts which they may choose to incur, under the name of the civil list, and through the medium of a committee, which thinks itself obliged by law to vote supplies without any other account than that of the mere existence of the debt.