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Chapter 7: Of the British Constitution - William Paley, The Principles of Moral and Political Philosophy 
The Principles of Moral and Political Philosophy, Foreword by D.L. Le Mahieu (Indianapolis: Liberty Fund, 2002).
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Of the British Constitution
By the constitution of a country, is meant so much of its law, as relates to the designation and form of the legislature; the rights and functions of the several parts of the legislative body; the construction, office, and jurisdiction, of courts of justice. The constitution is one principal division, section, or title, of the code of public laws; distinguished from the rest only by the superior importance of the subject of which it treats. Therefore the terms constitutional and unconstitutional, mean legal and illegal. The distinction and the ideas which these terms denote, are founded in the same authority with the law of the land upon any other subject; and to be ascertained by the same inquiries. In England, the system of public jurisprudence is made up of acts of parliament, of decisions of courts of law, and of immemorial usages; consequently, these are the principles of which the English constitution itself consists, the sources from which all our knowledge of its nature and limitations is to be deduced, and the authorities to which all appeal ought to be made, and by which every constitutional doubt and question can alone be decided. This plain and intelligible definition is the more necessary to be preserved in our thoughts, as some writers upon the subject absurdly confound what is constitutional with what is expedient; pronouncing forthwith a measure to be unconstitutional, which they adjudge in any respect to be detrimental or dangerous: whilst others, again, ascribe a kind of transcendent authority, or mysterious sanctity, to the constitution, as if it were founded in some higher original than that which gives force and obligation to the ordinary laws and statutes of the realm, or were inviolable on any other account than its intrinsic utility. An act of parliament in England can never be unconstitutional, in the strict and proper acceptation of the term; in a lower sense it may, viz. when it militates with the spirit, contradicts the analogy, or defeats the provision, of other laws, made to regulate the form of government. Even that flagitious abuse of their trust, by which a parliament of Henry the Eighth conferred upon the king’s proclamation the authority of law, was unconstitutional only in this latter sense.
Most of those who treat of the British constitution, consider it as a scheme of government formally planned and contrived by our ancestors, in some certain aera of our national history, and as set up in pursuance of such regular plan and design. Something of this sort is secretly supposed, or referred to, in the expressions of those who speak of the “principles of the constitution,” of bringing back the constitution to its “first principles,” of restoring it to its “original purity,” or “primitive model.” Now this appears to me an erroneous conception of the subject. No such plan was ever formed, consequently no such first principles, original model, or standard, exist: I mean, there never was a date or point of time in our history, when the government of England was to be set up anew, and when it was referred to any single person, or assembly, or committee, to frame a charter for the future government of the country; or when a constitution so prepared and digested, was by common consent received and established. In the time of the civil wars, or rather between the death of Charles the First and the restoration of his son, many such projects were published, but none were carried into execution. The Great Charter, and the Bill of Rights, were wise and strenuous efforts to obtain security against certain abuses of regal power, by which the subject had been formerly aggrieved: but these were, either of them, much too partial modifications of the constitution, to give it a new original. The constitution of England, like that of most countries of Europe, hath grown out of occasion and emergency; from the fluctuating policy of different ages; from the contentions, successes, interests, and opportunities, of different orders and parties of men in the community. It resembles one of those old mansions, which, instead of being built all at once, after a regular plan, and according to the rules of architecture at present established, has been reared in different ages of the art, has been altered from time to time, and has been continually receiving additions and repairs suited to the taste, fortune, or conveniency, of its successive proprietors. In such a building, we look in vain for the elegance and proportion, for the just order and correspondence of parts, which we expect in a modern edifice; and which external symmetry, after all, contributes much more perhaps to the amusement of the beholder, than the accommodation of the inhabitant.
In the British, and possibly in all other constitutions, there exists a wide difference between the actual state of the government and the theory. The one results from the other: but still they are different. When we contemplate the theory of the British government, we see the king invested with the most absolute personal impunity; with a power of rejecting laws, which have been resolved upon by both houses of parliament; of conferring by his charter, upon any set or succession of men he pleases, the privilege of sending representatives into one house of parliament, as by his immediate appointment he can place whom he will in the other. What is this, a foreigner might ask, but a more circuitous despotism? Yet, when we turn our attention from the legal extent, to the actual exercise of royal authority in England, we see these formidable prerogatives dwindled into mere ceremonies; and, in their stead, a sure and commanding influence, of which the constitution, it seems, is totally ignorant, growing out of that enormous patronage which the increased territory and opulence of the empire have placed in the disposal of the executive magistrate.
Upon questions of reform, the habit of reflection to be encouraged, is a sober comparison of the constitution under which we live—not with models of speculative perfection, but with the actual chance of obtaining a better. This turn of thought will generate a political disposition, equally removed from that puerile admiration of present establishments, which sees no fault, and can endure no change; and that distempered sensibility, which is alive only to perceptions of inconveniency, and is too impatient to be delivered from the uneasiness which it feels, to compute either the peril or expense of the remedy. Political innovations commonly produce many effects beside those that are intended. The direct consequence is often the least important. Incidental, remote, and unthought-of evil or advantages, frequently exceed the good that is designed, or the mischief that is foreseen. It is from the silent and unobserved operation, from the obscure progress of causes set at work for different purposes, that the greatest revolutions take their rise. When Elizabeth, and her immediate successor, applied themselves to the encouragement and regulation of trade by many wise laws, they knew not, that, together with wealth and industry, they were diffusing a consciousness of strength and independency which would not long endure, under the forms of a mixed government, the dominion of arbitrary princes. When it was debated whether the mutiny act, the law by which the army is governed and maintained, should be temporary or perpetual, little else probably occurred to the advocates of an annual bill, than the expediency of retaining a control over the most dangerous prerogative of the crown—the direction and command of a standing army; whereas, in its effect, this single reservation has altered the whole frame and quality of the British constitution. For since, in consequence of the military system which prevails in neighbouring and rival nations, as well as on account of the internal exigencies of government, a standing army has become essential to the safety and administration of the empire, it enables parliament, by discontinuing this necessary provision, so to enforce its resolutions upon any other subject, as to render the king’s dissent to a law which has received the approbation of both houses, too dangerous an experiment any longer to be advised. A contest between the king and parliament, cannot now be persevered in without a dissolution of the government. Lastly, when the constitution conferred upon the crown the nomination to all employments in the public service, the authors of this arrangement were led to it, by the obvious propriety of leaving to a master the choice of his servants; and by the manifest inconveniency of engaging the national council, upon every vacancy, in those personal contests which attend elections to places of honour and emolument. Our ancestors did not observe that this disposition added an influence to the regal office, which, as the number and value of public employments increased, would supersede in a great measure the forms, and change the character, of the ancient constitution. They knew not, what the experience and reflection of modern ages have discovered, that patronage universally is power; that he who possesses in a sufficient degree the means of gratifying the desires of mankind after wealth and distinction, by whatever checks and forms his authority may be limited or disguised, will direct the management of public affairs. Whatever be the mechanism of the political engine, he will guide the motion. These instances are adduced in order to illustrate the proposition which we laid down, that, in politics, the most important and permanent effects have, for the most part, been incidental and unforeseen: and this proposition we inculcate, for the sake of the caution which teaches that changes ought not to be adventured upon without a comprehensive discernment of the consequences—without a knowledge as well of the remote tendency, as of the immediate design. The courage of a statesman should resemble that of a commander, who, however regardless of personal danger, never forgets, that, with his own, he commits the lives and fortunes of a multitude; and who does not consider it as any proof of zeal or valour, to stake the safety of other men upon the success of a perilous or desperate enterprise.
There is one end of civil government peculiar to a good constitution, namely, the happiness of its subjects; there is another end essential to a good government, but common to it with many bad ones—its own preservation. Observing that the best form of government would be defective, which did not provide for its own permanency, in our political reasonings we consider all such provisions as expedient; and are content to accept as a sufficient ground for a measure, or law, that it is necessary or conducive to the preservation of the constitution. Yet, in truth, such provisions are absolutely expedient, and such an excuse final, only whilst the constitution is worth preserving; that is, until it can be exchanged for a better. I premise this distinction, because many things in the English, as in every constitution, are to be vindicated and accounted for solely from their tendency to maintain the government in its present state, and the several parts of it in possession of the powers which the constitution has assigned to them; and because I would wish it to be remarked that such a consideration is always subordinate to another—the value and usefulness of the constitution itself.
The Government of England, which has been sometimes called a mixed government, sometimes a limited monarchy, is formed by a combination of the three regular species of government: the monarchy residing in the King; the aristocracy, in the House of Lords; and the republic, being represented by the House of Commons. The perfection intended by such a scheme of government is, to unite the advantages of the several simple forms, and to exclude the inconveniencies. To what degree this purpose is attained or attainable in the British constitution; wherein it is lost sight of or neglected; and by what means it may in any part be promoted with better success, the reader will be enabled to judge, by a separate recollection of these advantages and inconveniencies, as enumerated in the preceding chapter, and a distinct application of each to the political condition of this country. We will present our remarks upon the subject in a brief account of the expedients by which the British constitution provides,
1st. For the interest of its subjects.
2dly. For its own preservation.
The contrivances for the first of these purposes, are the following:
In order to promote the establishment of salutary public laws, every citizen of the state is capable of becoming a member of the senate: and every senator possesses the right of propounding to the deliberation of the legislature whatever law he pleases.
Every district of the empire enjoys the privilege of choosing representatives, informed of the interests, and circumstances, and desires of their constituents, and entitled by their situation to communicate that information to the national council. The meanest subject has some one whom he can call upon to bring forward his complaints and requests to public attention.
By annexing the right of voting for members of the House of Commons to different qualifications in different places, each order and profession of men in the community become virtually represented; that is, men of all orders and professions, statesmen, courtiers, country-gentlemen, lawyers, merchants, manufacturers, soldiers, sailors, interested in the prosperity, and experienced in the occupation, of their respective professions, obtain seats in parliament.
The elections, at the same time, are so connected with the influence of landed property, as to afford a certainty that a considerable number of men of great estates will be returned to parliament; and are also so modified, that men the most eminent and successful in their respective professions, are the most likely, by their riches, or the weight of their stations, to prevail in these competitions.
The number, fortune, and quality, of the members; the variety of interests and characters amongst them; above all, the temporary duration of their power, and the change of men which every new election produces; are so many securities to the public, as well against the subjection of their judgements to any external dictation, as against the formation of a junto in their own body, sufficiently powerful to govern their decisions.
The representatives are so intermixed with the constituents, and the constituents with the rest of the people, that they cannot, without a partiality too flagrant to be endured, impose any burthen upon the subject, in which they do not share themselves; nor scarcely can they adopt an advantageous regulation, in which their own interests will not participate of the advantage.
The proceedings and debates of parliament, and the parliamentary conduct of each representative, are known by the people at large.
The representative is so far dependent upon the constituent, and political importance upon public favour, that a member of parliament cannot more effectually recommend himself to eminence and advancement in the state, than by contriving and patronising laws of public utility.
When intelligence of the condition, wants, and occasions, of the people, is thus collected from every quarter; when such a variety of invention, and so many understandings, are set at work upon the subject; it may be presumed, that the most eligible expedient, remedy, or improvement, will occur to some one or other: and when a wise counsel, or beneficial regulation, is once suggested, it may be expected, from the disposition of an assembly so constituted as the British House of Commons is, that it cannot fail of receiving the approbation of a majority.
To prevent those destructive contentions for the supreme power, which are sure to take place where the members of the state do not live under an acknowledged head, and a known rule of succession; to preserve the people in tranquillity at home, by a speedy and vigorous execution of the laws; to protect their interest abroad, by strength and energy in military operations, by those advantages of decision, secrecy, and despatch, which belong to the resolutions of monarchical councils—for these purposes, the constitution has committed the executive government to the administration and limited authority of an hereditary king.
In the defence of the empire; in the maintenance of its power, dignity, and privileges, with foreign nations; in the advancement of its trade by treaties and conventions; and in the providing for the general administration of municipal justice, by a proper choice and appointment of magistrates; the inclination of the king and of the people usually coincides; in this part, therefore, of the regal office, the constitution entrusts the prerogative with ample powers.
The dangers principally to be apprehended from regal government, relate to the two articles taxation and punishment. In every form of government, from which the people are excluded, it is the interest of the governors to get as much, and of the governed to give as little, as they can: the power also of punishment, in the hands of an arbitrary prince, oftentimes becomes an engine of extortion, jealousy, and revenge. Wisely, therefore, hath the British constitution guarded the safety of the people, in these two points, by the most studious precautions.
Upon that of taxation, every law which, by the remotest construction, may be deemed to levy money upon the property of the subject, must originate, that is, must first be proposed and assented to, in the House of Commons: by which regulation, accompanying the weight which that assembly possesses in all its functions, the levying of taxes is almost exclusively reserved to the popular part of the constitution, who, it is presumed, will not tax themselves, nor their fellow-subjects, without being first convinced of the necessity of the aids which they grant.
The application also of the public supplies, is watched with the same circumspection as the assessment. Many taxes are annual; the produce of others is mortgaged, or appropriated to specific services: the expenditure of all of them is accounted for in the House of Commons; as computations of the charge of the purpose for which they are wanted, are previously submitted to the same tribunal.
In the infliction of punishment, the power of the crown, and of the magistrate appointed by the crown, is confined by the most precise limitations: the guilt of the offender must be pronounced by twelve men of his own order, indifferently chosen out of the county where the offence was committed: the punishment, or the limits to which the punishment may be extended, are ascertained, and affixed to the crime, by laws which know not the person of the criminal.
And whereas arbitrary or clandestine confinement is the injury most to be dreaded from the strong hand of the executive government, because it deprives the prisoner at once of protection and defence, and delivers him into the power, and to the malicious or interested designs, of his enemies; the constitution has provided against this danger with double solicitude. The ancient writ of habeas corpus, the habeas-corpus act of Charles the Second, and the practice and determinations of our sovereign courts of justice founded upon these laws, afford a complete remedy for every conceivable case of illegal imprisonment.*
Treason being that charge, under colour of which the destruction of an obnoxious individual is often sought; and government being at all times more immediately a party in the prosecution; the law, beside the general care with which it watches over the safety of the accused, in this case, sensible of the unequal contest in which the subject is engaged, has assisted his defence with extraordinary indulgences. By two statutes, enacted since the Revolution, every person indicted for high treason shall have a copy of his indictment, a list of the witnesses to be produced, and of the jury impanneled, delivered to him ten days before the trial; he is also permitted to make his defence by counsel—privileges which are not allowed to the prisoner, in a trial for any other crime: and, what is of more importance to the party than all the rest, the testimony of two witnesses, at the least, is required to convict a person of treason: whereas, one positive witness is sufficient in almost every other species of accusation.
We proceed, in the second place, to inquire in what manner the constitution has provided for its own preservation; that is, in what manner each part of the legislature is secured in the exercise of the powers assigned to it, from the encroachments of the other parts. This security is sometimes called the balance of the constitution: and the political equilibrium, which this phrase denotes, consists in two contrivances—a balance of power, and a balance of interest. By a balance of power is meant, that there is no power possessed by one part of the legislature, the abuse or excess of which is not checked by some antagonist power, residing in another part. Thus the power of the two houses of parliament to frame laws, is checked by the king’s negative: that, if laws subversive of regal government should obtain the consent of parliament, the reigning prince, by interposing his prerogative, may save the necessary rights and authority of his station. On the other hand, the arbitrary application of this negative is checked by the privilege which parliament possesses, of refusing supplies of money to the exigencies of the king’s administration. The constitutional maxim, “that the king can do no wrong,” is balanced by another maxim, not less constitutional, “that the illegal commands of the king do not justify those who assist, or concur, in carrying them into execution”; and by a second rule, subsidiary to this, “that the acts of the crown acquire not a legal force, until authenticated by the subscription of some of its great officers.” The wisdom of this contrivance is worthy of observation. As the king could not be punished, without a civil war, the constitution exempts his person from trial or account; but, lest this impunity should encourage a licentious exercise of dominion, various obstacles are opposed to the private will of the sovereign, when directed to illegal objects. The pleasure of the crown must be announced with certain solemnities, and attested by certain officers of state. In some cases, the royal order must be signified by a secretary of state; in others it must pass under the privy seal; and, in many, under the great seal. And when the king’s command is regularly published, no mischief can be achieved by it, without the ministry and compliance of those to whom it is directed. Now all who either concur in an illegal order by authenticating its publication with their seal or subscription, or who in any manner assist in carrying it into execution, subject themselves to prosecution and punishment, for the part they have taken; and are not permitted to plead or produce the command of the king in justification of their obedience.* But farther: the power of the crown to direct the military force of the kingdom, is balanced by the annual necessity of resorting to parliament for the maintenance and government of that force. The power of the king to declare war, is checked by the privilege of the House of Commons, to grant or withhold the supplies by which the war must be carried on. The king’s choice of his ministers is controlled by the obligation he is under of appointing those men to offices in the state, who are found capable of managing the affairs of his government, with the two houses of parliament. Which consideration imposes such a necessity upon the crown, as hath in a great measure subdued the influence of favouritism; insomuch that it is become no uncommon spectacle in this country, to see men promoted by the king to the highest offices and richest preferments which he has in his power to bestow, who have been distinguished by their opposition to his personal inclinations.
By the balance of interest, which accompanies and gives efficacy to the balance of power, is meant this—that the respective interests of the three estates of the empire are so disposed and adjusted, that whichever of the three shall attempt any encroachment, the other two will unite in resisting it. If the king should endeavour to extend his authority, by contracting the power and privileges of the Commons, the House of Lords would see their own dignity endangered by every advance which the crown made to independency upon the resolutions of parliament. The admission of arbitrary power is no less formidable to the grandeur of the aristocracy, than it is fatal to the liberty of the republic; that is, it would reduce the nobility from the hereditary share they possess in the national councils, in which their real greatness consists, to the being made a part of the empty pageantry of a despotic court. On the other hand, if the House of Commons should intrench upon the distinct province, or usurp the established prerogative of the crown, the House of Lords would receive an instant alarm from every new stretch of popular power. In every contest in which the king may be engaged with the representative body, in defence of his established share of authority, he will find a sure ally in the collective power of the nobility. An attachment to the monarchy, from which they derive their own distinction; the allurements of a court, in the habits and with the sentiments of which they have been brought up; their hatred of equality and of all levelling pretensions, which may ultimately affect the privileges, or even the existence, of their order; in short, every principle and every prejudice which are wont to actuate human conduct, will determine their choice to the side and support of the crown. Lastly, if the nobles themselves should attempt to revive the superiorities which their ancestors exercised under the feudal constitution, the king and the people would alike remember, how the one had been insulted, and the other enslaved, by that barbarous tyranny. They would forget the natural opposition of their views and inclinations, when they saw themselves threatened with the return of a domination which was odious and intolerable to both.
The reader will have observed, that in describing the British constitution, little notice has been taken of the House of Lords. The proper use and design of this part of the constitution, are the following: First, to enable the king, by his right of bestowing the peerage, to reward the servants of the public, in a manner most grateful to them, and at a small expense to the nation: secondly, to fortify the power and to secure the stability of regal government, by an order of men naturally allied to its interests: and, thirdly, to answer a purpose, which, though of superior importance to the other two, does not occur so readily to our observation; namely, to stem the progress of popular fury. Large bodies of men are subject to sudden phrensies. Opinions are sometimes circulated amongst a multitude without proof or examination, acquiring confidence and reputation merely by being repeated from one to another; and passions founded upon these opinions, diffusing themselves with a rapidity which can neither be accounted for nor resisted, may agitate a country with the most violent commotions. Now the only way to stop the fermentation, is to divide the mass; that is, to erect different orders in the community, with separate prejudices and interests. And this may occasionally become the use of an hereditary nobility, invested with a share of legislation. Averse to those prejudices which actuate the minds of the vulgar; accustomed to condemn the clamour of the populace; disdaining to receive laws and opinions from their inferiors in rank; they will oppose resolutions which are founded in the folly and violence of the lower part of the community. Were the voice of the people always dictated by reflection; did every man, or even one man in a hundred, think for himself, or actually consider the measure he was about to approve or censure; or even were the common people tolerably steadfast in the judgement which they formed, I should hold the interference of a superior order not only superfluous, but wrong: for when every thing is allowed to difference of rank and education, which the actual state of these advantages deserves, that, after all, is most likely to be right and expedient, which appears to be so to the separate judgement and decision of a great majority of the nation; at least, that, in general, is right for them, which is agreeable to their fixed opinions and desires. But when we observe what is urged as the public opinion, to be, in truth, the opinion only, or perhaps the feigned profession, of a few crafty leaders; that the numbers who join in the cry, serve only to swell and multiply the sound, without any accession of judgement, or exercise of understanding; and that oftentimes the wisest counsels have been thus overborne by tumult and uproar—we may conceive occasions to arise, in which the commonwealth may be saved by the reluctance of the nobility to adopt the caprices, or to yield to the vehemence, of the common people. In expecting this advantage from an order of nobles, we do not suppose the nobility to be more unprejudiced than others; we only suppose that their prejudices will be different from, and may occasionally counteract, those of others.
If the personal privileges of the peerage, which are usually so many injuries to the rest of the community, be restrained, I see little inconveniency in the increase of its number; for it is only dividing the same quantity of power amongst more hands, which is rather favourable to public freedom than otherwise.
The admission of a small number of ecclesiastics into the House of Lords, is but an equitable compensation to the clergy for the exclusion of their order from the House of Commons. They are a set of men considerable by their number and property, as well as by their influence, and the duties of their station; yet, whilst every other profession has those amongst the national representatives, who, being conversant in the same occupation, are able to state, and naturally disposed to support, the rights and interests of the class and calling to which they belong, the clergy alone are deprived of this advantage: which hardship is made up to them by introducing the prelacy into parliament; and if bishops, from gratitude or expectation, be more obsequious to the will of the crown than those who possess great temporal inheritances, they are properly inserted into that part of the constitution, from which much or frequent resistance to the measures of government is not expected.
I acknowledge, that I perceive no sufficient reason for exempting the persons of members of either house of parliament from arrest for debt. The counsels or suffrage of a single senator, especially of one who in the management of his own affairs may justly be suspected of a want of prudence or honesty, can seldom be so necessary to those of the public, as to justify a departure from that wholesome policy, by which the laws of a commercial state punish and stigmatize insolvency. But, whatever reason may be pleaded for their personal immunity, when this privilege of parliament is extended to domestics and retainers, or when it is permitted to impede or delay the course of judicial proceedings, it becomes an absurd sacrifice of equal justice to imaginary dignity.
There is nothing in the British constitution so remarkable, as the irregularity of the popular representation. The House of Commons consists of five hundred and fifty-eight members, of whom two hundred are elected by seven thousand constituents; so that a majority of these seven thousand, without any reasonable title to superior weight or influence in the state, may, under certain circumstances, decide a question against the opinion of as many millions. Or, to place the same object in another point of view: If my estate be situated in one county of the kingdom, I possess the ten-thousandth part of a single representative; if in another, the thousandth; if in a particular district, I may be one in twenty who choose two representatives; if in a still more favoured spot, I may enjoy the right of appointing two myself. If I have been born, or dwell, or have served an apprenticeship, in one town, I am represented in the national assembly by two deputies, in the choice of whom I exercise an actual and sensible share of power; if accident has thrown my birth, or habitation, or service, into another town, I have no representative at all, nor more power or concern in the election of those who make the laws by which I am governed, than if I was a subject of the Grand Signior—and this partiality subsists without any pretence whatever of merit or of propriety, to justify the preference of one place to another. Or, thirdly, to describe the state of national representation as it exists in reality, it may be affirmed, I believe, with truth, that about one half of the House of Commons obtain their seats in that assembly by the election of the people, the other half by purchase, or by the nomination of single proprietors of great estates.
This is a flagrant incongruity in the constitution; but it is one of those objections which strike most forcibly at first sight. The effect of all reasoning upon the subject is, to diminish the first impression; on which account it deserves the more attentive examination, that we may be assured, before we adventure upon a reformation, that the magnitude of the evil justifies the danger of the experiment. In a few remarks that follow, we would be understood, in the first place, to decline all conference with those who wish to alter the form of government of these kingdoms. The reformers with whom we have to do, are they who, whilst they change this part of the system, would retain the rest. If any Englishman expect more happiness to his country under a republic, he may very consistently recommend a new-modelling of elections to parliament; because, if the King and House of Lords were laid aside, the present disproportionate representation would produce nothing but a confused and ill-digested oligarchy. In like manner we waive a controversy with those writers who insist upon representation as a natural right:* we consider it so far only as a right at all, as it conduces to public utility; that is, as it contributes to the establishment of good laws, or as it secures to the people the just administration of these laws. These effects depend upon the disposition and abilities of the national counsellors. Wherefore, if men the most likely by their qualifications to know and to promote the public interest, be actually returned to parliament, it signifies little who return them. If the properest persons be elected, what matters it by whom they are elected? At least, no prudent statesman would subvert long-established or even settled rules of representation, without a prospect of procuring wiser or better representatives. This then being well observed, let us, before we seek to obtain any thing more, consider duly what we already have. We have a House of Commons composed of five hundred and fifty-eight members, in which number are found the most considerable landholders and merchants of the kingdom; the heads of the army, the navy, and the law; the occupiers of great offices in the state; together with many private individuals, eminent by their knowledge, eloquence, or activity. Now if the country be not safe in such hands, in whose may it confide its interests? If such a number of such men be liable to the influence of corrupt motives, what assembly of men will be secure from the same danger? Does any new scheme of representation promise to collect together more wisdom, or to produce firmer integrity? In this view of the subject, and attending not to ideas of order and proportion (of which many minds are much enamoured), but to effects alone, we may discover just excuses for those parts of the present representation which appear to a hasty observer most exceptionable and absurd. It should be remembered, as a maxim extremely applicable to this subject, that no order or assembly of men whatever can long maintain their place and authority in a mixed government, of which the members do not individually possess a respectable share of personal importance. Now whatever may be the defects of the present arrangement, it infallibly secures a great weight of property to the House of Commons, by rendering many seats in that house accessible to men of large fortunes, and to such men alone. By which means those characters are engaged in the defence of the separate rights and interests of this branch of the legislature, that are best able to support its claims. The constitution of most of the small boroughs, especially the burgage tenure, contributes, though undesignedly, to the same effect: for the appointment of the representatives we find commonly annexed to certain great inheritances. Elections purely popular are in this respect uncertain: in times of tranquillity, the natural ascendancy of wealth will prevail; but when the minds of men are inflamed by political dissensions, this influence often yields to more impetuous motives. The variety of tenures and qualifications, upon which the right of voting is founded, appears to me a recommendation of the mode which now subsists, as it tends to introduce into parliament a corresponding mixture of characters and professions. It has been long observed that conspicuous abilities are most frequently found with the representatives of small boroughs. And this is nothing more than what the laws of human conduct might teach us to expect: when such boroughs are set to sale, those men are likely to become purchasers, who are enabled by their talents to make the best of their bargain: when a seat is not sold, but given by the opulent proprietor of a burgage tenure, the patron finds his own interest consulted, by the reputation and abilities of the member whom he nominates. If certain of the nobility hold the appointment of some part of the House of Commons, it serves to maintain that alliance between the two branches of the legislature which no good citizen would wish to see dissevered: it helps to keep the government of the country in the House of Commons, in which it would not perhaps long continue to reside, if so powerful and wealthy a part of the nation as the peerage compose, were excluded from all share and interest in its constitution. If there be a few boroughs so circumstanced as to lie at the disposal of the crown, whilst the number of such is known and small, they may be tolerated with little danger. For where would be the impropriety or the inconveniency, if the king at once should nominate a limited number of his servants to seats in parliament; or, what is the same thing, if seats in parliament were annexed to the possession of certain of the most efficient and responsible offices in the state? The present representation, after all these deductions, and under the confusion in which it confessedly lies, is still in such a degree popular, or rather the representatives are so connected with the mass of the community by a society of interests and passions, that the will of the people, when it is determined, permanent, and general, almost always at length prevails.
Upon the whole, in the several plans which have been suggested, of an equal or a reformed representation, it will be difficult to discover any proposal that has a tendency to throw more of the business of the nation into the House of Commons, or to collect a set of men more fit to transact that business, or in general more interested in the national happiness and prosperity. One consequence, however, may be expected from these projects, namely, “less flexibility to the influence of the crown.” And since the diminution of this influence is the declared and perhaps the sole design of the various schemes that have been produced, whether for regulating the elections, contracting the duration, or for purifying the constitution of parliament by the exclusion of placemen and pensioners; it is obvious to remark, that the more apt and natural, as well as the more safe and quiet way of attaining the same end, would be by a direct reduction of the patronage of the crown, which might be effected to a certain extent without hazarding farther consequences. Superfluous and exorbitant emoluments of office may not only be suppressed for the present; but provisions of law be devised, which should for the future restrain within certain limits the number and value of the offices in the donation of the king.
But whilst we dispute concerning different schemes of reformation, all directed to the same end, a previous doubt occurs in the debate, whether the end itself be good, or safe—whether the influence so loudly complained of can be destroyed, or even much diminished, without danger to the state. Whilst the zeal of some men beholds this influence with a jealousy which nothing but its entire abolition can appease, many wise and virtuous politicians deem a considerable portion of it to be as necessary a part of the British constitution, as any other ingredient in the composition; to be that, indeed, which gives cohesion and solidity to the whole. Were the measures of government, say they, opposed from nothing but principle, government ought to have nothing but the rectitude of its measures to support them: but since opposition springs from other motives, government must possess an influence to counteract these motives; to produce, not a bias of the passions, but a neutrality—it must have some weight to cast into the scale, to set the balance even. It is the nature of power, always to press upon the boundaries which confine it. Licentiousness, faction, envy, impatience of control or inferiority; the secret pleasure of mortifying the great, or the hope of dispossessing them, a constant willingness to question and thwart whatever is dictated or even proposed by another; a disposition common to all bodies of men, to extend the claims and authority of their orders; above all, that love of power, and of showing it, which resides more or less in every human breast, and which, in popular assemblies, is inflamed, like every other passion, by communication and encouragement: these motives, added to private designs and resentments, cherished also by popular acclamation, and operating upon the great share of power already possessed by the House of Commons, might induce a majority, or at least a large party of men in that assembly, to unite in endeavouring to draw to themselves the whole government of the state: or, at least, so to obstruct the conduct of public affairs, by a wanton and perverse opposition, as to render it impossible for the wisest statesman to carry forwards the business of the nation with success or satisfaction.
Some passages of our national history afford grounds for these apprehensions. Before the accession of James the First, or, at least, during the reigns of his three immediate predecessors, the government of England was a government by force; that is, the king carried his measures in parliament by intimidation. A sense of personal danger kept the members of the House of Commons in subjection. A conjunction of fortunate causes delivered, at last, the parliament and nation from slavery. That overbearing system which had declined in the hands of James, expired early in the reign of his son. After the Restoration, there succeeded in its place, and, since the Revolution, has been methodically pursued, the more successful expedient of influence. Now we remember what passed between the loss of terror, and the establishment of influence. The transactions of that interval, whatever we may think of their occasion or effect, no friend of regal government would wish to see revived. But the affairs of this kingdom afford a more recent attestation to the same doctrine. In the British colonies of North America, the late assemblies possessed much of the power and constitution of our House of Commons. The king and government of Great Britain held no patronage in the country, which could create attachment and influence sufficient to counteract that restless arrogating spirit, which, in popular assemblies, when left to itself, will never brook an authority that checks and interferes with its own. To this cause, excited perhaps by some unseasonable provocations, we may attribute, as to their true and proper original, (we will not say the misfortunes, but) the changes that have taken place in the British empire. The admonition which such examples suggest, will have its weight with those who are content with the general frame of the English constitution; and who consider stability amongst the first perfections of any government.
We protest, however, against any construction, by which what is here said shall be attempted to be applied to the justification of bribery, or of any clandestine reward or solicitation whatever. The very secrecy of such negotiations confesses or begets a consciousness of guilt; which when the mind is once taught to endure without uneasiness, the character is prepared for every compliance; and there is the greater danger in these corrupt practices, as the extent of their operation is unlimited and unknown. Our apology relates solely to that influence, which results from the acceptance or expectation of public preferments. Nor does the influence which we defend, require any sacrifice of personal probity. In political, above all other subjects, the arguments, or rather the conjectures on each side of the question, are often so equally poised, that the wisest judgements may be held in suspense: these I call subjects of indifference. But again; when the subject is not indifferent in itself, it will appear such to a great part of those to whom it is proposed, for want of information, or reflection, or experience, or of capacity to collect and weigh the reasons by which either side is supported. These are subjects of apparent indifference. This indifference occurs still more frequently in personal contests; in which we do not often discover any reason of public utility for the preference of one competitor to another. These cases compose the province of influence: that is, the decision in these cases will inevitably be determined by influence of some sort or other. The only doubt is, what influence shall be admitted. If you remove the influence of the crown, it is only to make way for influence from a different quarter. If motives of expectation and gratitude be withdrawn, other motives will succeed in their place, acting probably in an opposite direction, but equally irrelative and external to the proper merits of the question. There exist, as we have seen, passions in the human heart, which will always make a strong party against the executive power of a mixed government. According as the disposition of parliament is friendly or adverse to the recommendation of the crown in matters which are really or apparently indifferent, as indifference hath been now explained, the business of the empire will be transacted with ease and convenience, or embarrassed with endless contention and difficulty. Nor is it a conclusion founded in justice, or warranted by experience, that because men are induced by views of interest to yield their consent to measures concerning which their judgement decides nothing, they may be brought by the same influence to act in deliberate opposition to knowledge and duty. Whoever reviews the operations of government in this country since the Revolution, will find few even of the most questionable measures of administration, about which the best-instructed judgement might not have doubted at the time; but of which we may affirm with certainty, they were indifferent to the greatest part of those who concurred in them. From the success, or the facility, with which they who dealt out the patronage of the crown carried measures like these, ought we to conclude, that a similar application of honours and emoluments would procure the consent of parliaments to counsels evidently detrimental to the common welfare? Is there not, on the contrary, more reason to fear, that the prerogative, if deprived of influence, would not be long able to support itself? For when we reflect upon the power of the House of Commons to extort a compliance with its resolutions from the other parts of the legislature; or to put to death the constitution by a refusal of the annual grants of money to the support of the necessary functions of government—when we reflect also what motives there are, which, in the vicissitudes of political interests and passions, may one day arm and point this power against the executive magistrate; when we attend to these considerations, we shall be led perhaps to acknowledge, that there is not more of paradox than of truth in that important, but much-decried apophthegm, “that an independent parliament is incompatible with the existence of the monarchy.”
[* ]Upon complaint in writing by, or on behalf of, any person in confinement, to any of the four courts of Westminster-Hall, in term-time, or to the lord chancellor, or one of the judges, in the vacation; and upon a probable reason being suggested to question the legality of the detention; a writ is issued to the person in whose custody the complainant is alleged to be, commanding him within a certain limited and short time to produce the body of the prisoner, and the authority under which he is detained. Upon the return of the writ, strict and instantaneous obedience to which is enforced by very severe penalties, if no lawful cause of imprisonment appear, the court or judge, before whom the prisoner is brought, is authorised and bound to discharge him; even though he may have been committed by a secretary, or other high officer of state, by the privy council, or by the king in person: so that no subject of this realm can be held in confinement by any power, or under any pretence whatever, provided he can find means to convey his complaints to one of the four courts of Westminster-Hall, or, during their recess, to any of the judges of the same, unless all these several tribunals agree in determining his imprisonment to be legal. He may make application to them, in succession; and if one out of the number be found, who thinks the prisoner entitled to his liberty, that one possesses authority to restore it to him.
[* ]Amongst the checks which parliament holds over the administration of public affairs, I forbear to mention the practice of addressing the king, to know by whose advice he resolved upon a particular measure; and of punishing the authors of that advice, for the counsel they had given. Not because I think this method either unconstitutional or improper; but for this reason: that it does not so much subject the king to the control of parliament, as it supposes him to be already in subjection. For if the king were so far out of the reach of the resentment of the House of Commons, as to be able with safety to refuse the information requested, or to take upon himself the responsibility inquired after, there must be an end of all proceedings founded in this mode of application.
[* ]If this right be natural, no doubt it must be equal; and the right, we may add, of one sex, as well as of the other. Whereas every plan of representation that we have heard of, begins by excluding the votes of women; thus cutting off, at a single stroke, one half of the public from a right which is asserted to be inherent in all; a right too, as some represent it, not only universal, but unalienable, and indefeasible, and imprescriptible.