SIR GEORGE SAVILE'S MOTION FOR A BILL TO SECURE
THE RIGHTS OF ELECTORS.

February 7. 1771.

SIR George Savile moved, "That leave be given to bring in a bill for more effectually securing the rights of the electors of Great Britain, with respect to the eligibility of persons to serve in parliament." In a speech prefatory to his motion, he explained the purport of his intended bill. He had observed, he said, that in the divisions on the Middlesex election, three principles seemed to be started subversive of the constitution. The first was, that the House of Commons could, by its own power, make law. The second, that one determination of the House was such law. The third, that incapacity was the consequence of expulsion. To all these points, as unconstitutional, and against law, he objected; but as the doctrines had, in some degree, been established by the divisions of the Middlesex election, he thought no means could so properly put an end to them as an act of the whole legislature. That, by so doing, he did not mean to have any retrospect to alter the former divisions, but only to prevent them in future. That this proposed bill would, therefore, condemn those propositions.

Mr. BURKE rose and said:

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

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: cute of Commons, who would persuade act, as if they were a self-originated maent of the people, and unconnected with and feelings. Under a pretence of exalting . wey undermine the very foundations, of this the question is asked here, what disturbs nence all this clamour, we apply to the tain, and they tell us it is from the efforts of ai the wickedness of the people, a worn-out Bikers fretence. If abroad the people are deceived by thin we are deluded by ministerial, cant. The and shounts to this, whether you mean to be a legal hara or an arbitrary and despotic assembly. I see

tri the delicacy and difficulty of the ground, upon wwe stand in this question. I could wish, indeed, has they, who advise the crown, had not left parliament in gis very ungraceful distress, in which they can neither retract with dignity nor persist with justice. Another parlia ment 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 con

stitution. 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 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 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

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 discretion; they will determine. It is not a fixed law-because you profess you vary it according to the occasion, exercise it according to your discretion; no man can call for it as a right. It is argued, that the incapacity is not originally voted, but a consequence of a power of expulsion: but if you expel, not upon legal, but upon arbitrary, that is, upon discretionary grounds, and the incapacity is 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 every thing to draw the law to as near a conformity to gencral 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 inca