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periods of our government, the principle of innovation was 'neither more nor less than the practice of the constitution.'
But was the right thus conceded, of sharing in the government, a property, or a trust ? Most assuredly, to use the words of the distinguished statesman just cited, 'the right of governing is ' not a property, but a trust; and whatever has been given for
constitutional purposes, should be resumed, when those purposes
can no longer be carried into effect.'* For the Crown to resume that which it has once granted, would indeed be an act ungraceful and invidious, and having the appearance of encroachment upon the rights of the people. But for the Parliament itself, in whom the general trust is reposed, to make any change in the securities for a faithful discharge of that trust, and in the number of trustees, that the altered circumstances of society render expedient, and, with the consent of the Crown, to make the best use, by transfer, of its original concessions, for the constitutional purposes for which they were intended, -is an act perfectly reasonable, just, and constitutional,—beneficial to the community at large, and injurious to none but the venal and dishonest who have abused their trust.
But the question now meets us, Does such proceeding involve the abandonment of the principle of prescription, which, though not the fundamental principle of the constitution, we will admit to be, in a sense, the safeguard of the privileges won by the spirit of freedom or conceded by policy? This brings us to the second position of the American Reviewer, who asserts, that that principle has been in fact abandoned for a new principle, that of qualification.
If the principle of prescription has been abandoned, it must either be intentionally and avowedly, by a formal repudiation of it for ever, or, as the necessary, though disavowed consequence of some act or argument on the part of those who are supposed to have abandoned it. Now nothing could be more directly the reverse of fact, than the affirmation, that there has been an avowed abandonment of the principle of prescription on the part of either the pro-reform or the anti-reform members of the Legislature. All that has been contended for by the former, is, that there are occasions upon which, for the general good, that principle must be made to bend to higher principles of enlightened policy and justice. A distinction too, and a very proper one, has been laid down between a prescriptive right and a prescriptive trust, between the prescription which secures the possession of property,
* Fox's Speeches, Vol. III. p. 151. Such was the argument by which Mr. Fox opposed Mr. Pitt's plan of compensation, as alike unjust and repugnant to the true spirit of the Constitution.
and that which sanctions the retention of a prerogative entrusted to parties for a public object. Even when there has been no wilful abuse of trust, if the original conditions have not been fulfilled, if the trust has fallen into too fex hands, and is evidently in danger of alienation from its legitimate design, a sufficient case is thought to be made out for the interposition of a remedial and paramount administration. So far from professedly abandoning prescription, however, the framers of the Reform Bill have evinced a studious anxiety to conform as much as possible to constitutional precedents; and have deprecated the idea that they wished to interfere with the franchise of any borough that pos geased the means of adequate security against its corrupt abuse. The decayed boroughs have been treated, not as criminals who had forfeited their rights, but as parties incompetent to exercise them, through notorious political incapacity. Old Sarum bas been declared, not a felon, but of unsound mind, superannuated and imbecile. There has been nothing like an approximation in these proceedings, to the Rule of Three Representation principle; the population returns having been used simply as one criterion of the fact to be ascertained, viz. the competency or incompetency of the borough to exercise the elective franchise on the principle of representation, as opposed to nomination. Property, not per: sons, has been recognised as the true basis of representation; and the qualification for the franchise in the new distribution, is the same as that which determined the original grant, -the consequence of the place to which the concession is made. The object sought for, too, has been precisely similar to that which Sir James Mackintosh points out as the design, or at least the effect, of the original institution of representation ; namely, by widening the foundations of parliament, to render it a bond of union be•tween orders of men jealous of each other, and to multiply its * points of contact with the people.'
If there has been any abandonment of the historical for the geographical principle, of prescription for the Rule of Three, it must be understood of a virtual abandonment, in spite of the declared intentions and principles of the authors and advocates of this reform, and as a fated, inevitable result. How this can be shewn to be the case, we know not. It is admitted by the Reviewer, that small encroachments have from time to time been made upon this principle. That was no small encroachment, however, which let in a hundred Irish members into the British Parliament; and if ever the principle of prescription has been virtually abandoned, it was abandoned by Mr. Pitt. Or will it be said, that it is by disfranchisement only, that the principle of prescription is violated ? Then we would ask, whether pre-priptive rights may not be forfeited or lost, without affecting the
neral validity of the principle. That the elective franchise may
be forfeited by a clear case of corruption, involving the electors generally, is admitted on all hands; and Grampound, not long ago, was made to yield up its prescriptive right as a punishment of its detected delinquencies. And if a dozen Grampounds had been disfranchised upon evidence of similar criminality, it would not have been deemed any violation, we presume, of the prescriptive principle, inasmuch as a legal reason would have been made out for the proceeding. If, then, a valid and sufficient reason can be given for departing from a general principle on a particular occasion, that principle can scarcely be considered as violated : it is, at all events, not abandoned. But it has been taken for granted, that the only valid reason for disfranchising a borough, must be such as would justify the measure as one of penal justice. We deny this. We maintain that, in proceeding upon this ground, there is palpable injustice ; that the electors are really punished less for being corrupt, than for being poor, while the true criminal escapes. So long as boroughs are bought and sold, what a mockery of justice is it to punish poor men for selling their votes !
The only sound reason for disfranchisement is the constitutional one; that the constituent elements of the franchise have become lost; that the thing to be represented no longer exists; that the principle of representation has become merged in that of nomination; and that the place has thus been already virtually disfranchised, the trust having fallen into improper hands. We must think that the decay of a borough is a far stronger reason in equity for disfranchising it, than the conduct of the electors, who, if the prescriptive right absolutely and irreversibly attached to the place, should not be punished otherwise than personally, and the disqualification ought not, therefore, to extend to the next generation. Penal disfranchisement is, in fact, little better than a judicial farce, and as such it has been regarded by the people. To punish Grampound or East Retford for abusing its privilege, and to let the house called Old Sarum send its two representatives to parliament, is as unreasonable and unjust a proceeding as can be imagined. When every condition upon which a charter or other trust is held, has been disregarded, or can no longer be fulfilled, although there may have been no wilful abuse, or criminality of any kind, the prescriptive right terminates, and the grant reverts to the Crown. Such is the doctrine of both law and equity; and upon this ground, the writ might long ago have been constitutionally withheld from Old Sarum, its title having become literally extinct. It was like summoning a dead man, who had left no heirs, on the presumption that he must be alive, because he had not been judicially put to death.
The elective franchise was originally conceded to boroughs qualified to exercise it, and for certain constitutional purposes. Qualification, not prescription, then, wis the original tenure. The qualification having become lost, of which the decay of the place in wealth and population is the undeniable sign and erdenee, and the constitutional purpose being no longer answered bs the exercise of the franchise, the tenure is vitiated, the trust lapses, the prescriptive right fails to the ground. Nor is there insolved, in the formal decision of the legislature that such a place shall no longer return members, any greater abandonment of the principle of prescription, than there is in any interposition of the Court of Chancery in the matter of a private trust.
The assertion, that any old principle, unknown to the Constitution, has been abandoned, and a new principle introduced, by the great measure now approaching (as we trust) its consummation, is founded upon mere ignorance or delusion. It is not true, that every, or that any seat has been shifted from the basis of prescription to that of qualification ; but the principle of nomination, which was itself an encroachment upon prescription, has been made to give way before an extension or restoration of the constitutional principle of representation. The sense of the people has been ascertained with regard to this specific measure, as one of practical reform and concession, which has for its object to restore their confidence in the House of Commons, as the organ of the national sentiment, and the guardian of the national rights. They have not been asked to canvass the supposed principle of the Bill, but to signify their acquiescence in the Bill itself. But, if the popular voice may be supposed to have sanctioned the principle also, then we have the sense of the people deliberately and authentically expressed against the principle of universal suffrage, or equal
geographical representation', and against any other change in the organization of the House of Commons, any further disturb ance of the prescriptive principle, than that which circumstances have rendered imperatively necessary, in order to restore the House of Commons to its constitutional efficiency. By the acceptance of this Bill of concession and reform, the strongest ns. tional pledge will have been given in support of the existing constitution.
Having thus shewn that the premise of the American Reviewer is altogether fallacious, we need not take up the time of our readers, by exposing the nugatory character of his speculations as to the natural and inevitable consequences' of this imaginary revolution. We can assure him that he knows little of the peo ple of England, if he imagines that they will easily be brought to prefer to the ‘Gothic complication of burgesses and knights', the mock-Grecian simplicity of the Congressional system. The more we know of that system, the less highly we think of its adaptation to any country but America, and the more suspicious we feel of its entire availableness there. The shallow theory of universal representation, with its collateral principles of popular delegation and government by a majority, (frequently the most odious species of tyranny,) has begun to be viewed with distrust by their own jurists * ; nor is the working of the Congressional machine by any means so free from friction, and so regular and effective in its movements, as its admirers would have us believe. In the Appendix to Professor Park's Lectures, will be found extracts from an article on Instructions to Representatives ', inserted in the American Jurist, which indicate that the ultra-democratic notions maintained on this point, are found to be as little compatible with the effective administration of public affairs under a republican government, as with the constitution of a limited monarchy. To admit such a right in the constituents', the Writer remarks, would, as it seems to us, at once subvert all the advantages of our present system of government, and render nugatory all the checks and balances provided by the Constitution. In our own country, the recognition of the right to petition, clearly proves, in our opinion, that the Constitution knows of no such thing as a general right to bind representatives by the instructions of their constituents. A house of instructed and pledged representatives, moreover, loses the character of a deliberative assembly. Mr. Fox, in adverting to this question, confessed, that he leaned to the opinion, that representatives, 'having to legislate for the em• pire, ought not altogether to be guided by instructions that may • be dictated by local interests.'t Not that it follows from this, that they are at liberty to treat with contempt the opinions of their constituents; still less to disregard their interests, of which, if not of their opinions, they ought to be the representatives. Upon all ordinary occasions, the terms upon which a member of parliament should stand with his constituents, are those of confidence on their part in his competency and integrity, and on his, a conscientious attention to their political and local interests. • The voters', remarks the American Jurist, “can judge of the 'integrity and capacity of their representatives, though they can‘ not of many questions which must come before the legislative
* See Eclectic Review for January, 1832, pp. 30–32.
+ Yet, as Mr. Fox proceeded to remark, (Speeches, Vol. VI. p. 364,) if a member represents a noble lord or a noble duke, then it is held no longer doubtful, whether he is to be guided by the dictates of his own conscience, or by instructions : "he is not considered a man of • honour whu does not implicitly obey the orders of his single consti
luent. The instructed representatives of our House of Commons are the members for nomination boroughs.