When law ends, Tyranny begins

~ Lord Chatham

I quote the definition of the Rule of Law given by  Albert Venn Dicey (1835-1922):

“… every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. [Appointed government officials and politicians, alike] … and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person.” (Law of the Constitution.)

LORD CHATHAM

(WILLIAM VISCOUNT PITT AND EARL OF CHATHAM)

1708-1778

The words with which the elder Pitt closed the reply to Lord Mansfield in arguing the Wilkes case in the House of Lords are at once the secret of his power, as an orator, and the explanation of his success as a statesman.  “When law ends tyranny begins” he said as the final word of that great plea for the English Constitution.  It is for this idea that he stands in the history of England and of English-speaking people. “The higher law” to which appeal is made when impatience of wrong will not wait on prescription for reforms. He did not recognize — or if he recognized it, he combated it as a part of the tyranny which begins where prescription ends. 

What he dreaded most and opposed most strenuously for England was the arbitrary power, which in its own right of assumed superiority undertakes to decide the present without regard to the past, without the previously given consent of those who are affected, and with regard to those precedents and rules of procedure, which, whether or not they have been enacted as legislation, have the force of law  because they stand for regularity, for order, for the “due process”, for the sanity, and reasonable consideration which every man in or out of power owes to every other.

“We all know what the Constitution is”, said Chatham in the Wilkes case.  “We all know that the first principle of it is that the subject shall not be governed by the “arbitrium”, of any one man or body of men less than the whole legislature, but by certain laws to which he has virtually given his consent which are open to him to examine and are not beyond his ability to understand”.

That the weak, the subject, the defenceless, shall, “not be governed by the arbitrium of any one man” but only by the orderly processes of the justice which is necessary for their liberties and their defence — to hold that idea as Chatham held it, and to dare as much for it as he dared, would make any man great. Undoubtedly, he was one of the greatest men of England.  “I have sometimes seen eloquence without wisdom and often wisdom without eloquence” said Franklin in speaking of him, “but in him I have seen both united in the highest possible degree”.  No one who reads his speech in the Wilkes case in 1770, and after it the noble protest against the attempt to subjugate America made by him in his address to the Throne in November 1777, is likely to dissent from this verdict. He attacked the arbitrary action of the King as fearlessly as he had attacked that of Parliament. If the con was in danger, he did not stop to consider the rank, the dignity, the power of those who threatened it. He threatened them on his side in the name of that which he recognized as the greatest force in affairs— of the law, the love of order, the due process, the justice and liberty which depend on “due process”  under prescribed constitutional forms. If we  wonder sometimes how the makers of the American Constitution could have gained so much wisdom which comes from the hatred of disorderly power, we have only to read the speeches of Chatham, made in the face of patriotic sentiment in England, in defiance of the royal prerogative, in contempt of all public opinion which supported arbitrary power, to understand that the American love of liberty is an inheritance from the generations whose spirit inspired him, when in the House of Lords he said, “ I rejoice that America has resisted….I hope some dreadful calamity will befall this country which will open the eyes of the King.”

He was not inconsistent in opposing American independence as he did in his last speech, delivered with what was almost literally his dying breath.  He looked on Americans as Englishmen entitled to all their rights under the English Constitution, and he was glad to see them fight for them if they could enforce them no other way.  But that as Englishmen they should join with France to free themselves from the Constitution and laws that he regarded with such reverence; that in doing so they should seek to “dismember the British Empire”, seemed to him monstrous. Of the rights of humanity, he seems to have no governing conception. The rights of Englishmen were very dear to him, but it does not seem to have occurred to him that there was any compelling reason for respecting the rights of Frenchmen, of Spaniards, of Hindoos, or other foreigners, whose interests seemed to antagonize those of the British Empire. It is possible that he could have warmed as Burke did to the strongest indignation against British oppression in India, but it is for British liberty under English law, not for human liberty under the laws of nature or of God, that he stands distinctly. Yet taking him with all his limitations and weaknesses, with the pomposity which sometimes made him look ridiculous, and the vehemence which often made him unreasonable, he is still one of the noblest figures in the history of modern England.

He was born at Westminster, November 15 1708. After studying at Oxford and serving in the army as cornet of horse, he entered Parliament in 1735, attracting immediate attention and winning the distinguished success of drawing the fire of Walpole, who complimented him by procuring his dismissal from the Army because of his attacks on the administration.  From this time until he was raised to the peerage, in 1766, Pitt increased steadily in common favor. He was the “Great Commoner”, and was in fact the first great popular parliamentary leader in English history.  The most celebrated of his earlier speeches are only reported in fragments, but as a Commoner he could hardly have exceeded the fire of his denunciation of arbitrary power, when in the House of Lords, he asserted the spirit of English Liberty against the Tory policy towards America. He died May 11, at Hayes, where he was removed after his collapse in the House of Lords, April 7 of the same year. 

THE ENGLISH CONSTITUTION 

(A speech delivered in the House of Lords in the case of Wilkes January 8 1770)

There is one plain maxim to which I have adhered through life; that in every question in which my liberty or my property were concerned, I should consult and be determined by the dictates of common sense. I confess, My Lords, that I am prone to distrust the refinements of learning, because I have seen the ablest and most learned men equally liable to deceive themselves and to mislead others. The condition of human nature would be lamentable indeed, if nothing less that the greatest learning and talents, which fall to the share of so small a number of men, were sufficient to direct our judgment and our conduct.  But providence has taken better care of our common sense, a rule for our direction by which we can never be misled.

I confess My Lords I had no other guide in drawing up my amendment which I submitted for your consideration; and before I heard the opinion of the noble lord who spoke last, I did not conceive that it was even within the limits of possibility for the greatest human genius, the most subtle understanding, or the acutest wit, so strangely to misinterpret my meaning, and to give it an interpretation so entirely foreign from what I intended to express, and from that sense which the very terms of the amendment plainly and directly carry with them.  If there be the smallest foundation for the censure thrown upon me by that noble lord, if, either expressly or by the most distant implication, I have said or insinuated any part of what the noble lord has charged me with, discard my opinions forever, discard my motion with contempt.

My Lords I must beg the indulgence of the House. Neither will my health permit me, nor do I pretend to be qualified to follow that noble lord minutely through the whole of his argument. No man is better acquainted with his abilities and his learning, nor has a greater respect for him than I have. I have had the pleasure of sitting with him in that other House, and always listened to him with attention. I have not now lost a word of what he said, nor will I ever. Upon the present question I meet him without fear. The evidence which truth carries with it is is superior to all argument; it neither wants the support nor dreads the opposition of the greatest abilities. If there be a single word in the amendment to justify the interpretation which the noble lord has pleased to give it, I am ready to renounce the whole.  Let it be read My Lords, let it speak for itself. [The amendment was read].

In what instances does it interfere with the privileges of the House of Commons? In what respect does it question their jurisdiction, or suppose an authority in this House to arraign the justice of their sentence. I am sure that every lord that will hear me will bear witness, that I said not one word touching the merits of the Middlesex election. So, far from conveying my opinion upon that matter in the amendment, I did not even in discourse deliver my own sentiments upon it. I did not say that the House of Commons had done neither right or wrong. But when his Majesty has recommended to us to cultivate unanimity among ourselves, I thought it the duty if this House as the great hereditary council of the Crown, to state to His majesty the distracted condition of his dominions, together with the events which had destroyed unanimity amongst his subjects.  But, My Lords, I stated events as facts, without the smallest addition either of censure or opinion. They are facts, My Lords, which I am not only convinced are true, but which I know are undisputedly true.

For example, My Lords, will any man dispute that discontents prevail in many parts of his Majesty’s dominions? Or that those discontents arise from the proceedings of the House of Commons touching the declared incapacity of Mr Wilkes?  It is impossible. No man can deny a truth so notorious. Or will any man deny that those proceedings refused, by a resolution of one branch of the legislature only, to a subject his common right? Is it not indisputably true, My Lords, that Mr Wilkes had a common right, and that he lost it in no other way but by a resolution of the House of Commons? My Lords, I have been tender of misrepresenting the House of Commons. I have consulted their journals, and have taken the very words of their own resolution. Do they not tell us in so many words, that Mr Wilkes, having been expelled was therefore incapable of serving in the Parliament? And is it not in their resolution alone that refuses to the subject his common right? The amendment says further that the electors of Middlesex are deprived of their free choice of a representative. Is this a false fact My Lords. Will any man confirm that Colonel Luttrell is the free choice of the electors of Middlesex? We all know the contrary. We all know that Mr Wilkes (whom I mention without either praise or censure) was the favourite of the county, and chosen by a very great and acknowledged majority to represent them in Parliament. If the noble lord dislikes the manner in which these facts are stated, I think myself happy in being advised by him how to alter it. I am very little anxious about terms, provided the substance be preserved; and these facts, My Lords, which I am sure will always retain their weight and importance in whatever form of language they are described. Now, My Lords, since I have been forced into an explanation of an amendment, in which nothing less that the genius of penetration could have discovered an obscurity, and having, as I hope, redeemed myself in the opinion of the house, having redeemed my motion from the severe representation given it by the noble lord, I must a little longer entreat your lordships indulgence. The Constitution of this country has been openly invaded in fact; and I have heard with horror and astonishment, that very invasion defended on principle. What is this mysterious power, undefined by law, unknown to the subject, which we must not approach without awe, nor speak of without reverence. —- which no man may question and to which all men must submit. My Lords, I thought the slavish doctrine of passive obedience had long since exploded; and, when our Kings were obliged to confess that their title to the crown, and the rule of their government, had no other foundation than the known laws of the land, I never expected to hear a divine right, or a divine infallibility attributed to any other branch of the Legislature.  My Lords, I beg to be understood. No man respects the House of Commons more than I do, or would contend more strenuously that I would to preserve to them their just and legal authority. Within the bounds prescribed by the Constitution, that authority is necessary to the well-being of the people. Beyond that line, every exertion of power is arbitrary, is illegal; it threatens tyranny to the people and destruction to the State.

Power without right is the most odious and detestable object that can be offered to the human imagination. It is not only pernicious to those who are subject to it, but tends to its own destruction. It is what my noble friend [Lord Littleton] has truly described it, res detestabilis et caduca. My Lords, I reverence the just power, and reverence the Constitution of the House of Commons. It is for their own sakes, that I would prevent their assuming a power which the Constitution has denied them, lest, by grasping at an authority they have no right to, they should forfeit that which they legally possess. My Lords, I affirm that they have betrayed their constituents, and violated the Constitution.  Under pretence of declaring the law, they have made a law, and united in the same persons legislator and judge!

I shall endeavour to adhere strictly to the noble lord’s doctrine, which is indeed impossible to mistake, so far as my will permit me to preserve his expressions. He seems fond of the word jurisdiction; and I admit with the force and effect which he has given it, it is a word of copious meaning and wonderful extent. If his lordship’s doctrine be well founded, we must renounce all those political maxims by which our understandings have hitherto been directed, and even the first elements of learning taught in our schools when we were schoolboys. My Lords, we knew that jurisdiction was nothing more than ‘jus dicere” We knew that legem facere and legem dicere (to make law and to declare it) were powers clearly distinguished from each other in the nature of things, and wisely separated from each other by the wisdom of the English Constitution. But now it seems we must adopt a new system of thinking! The House of Commons, we are told, have a supreme jurisdiction, and there is no appeal from their sentence; and that, wherever they are competent judges, their decision must be received and submitted to us ipso facto the law of the land. 

My Lords, I am a plain man, and have been brought up in a religious reverence for the original simplicity of the laws of England. By what sophistry they have been perverted. By what artifices they have been involved in obscurity, is not for me to explain. The principles however, of the English laws are still sufficiently clear; they are founded in reason, and are the masterpiece of understanding; but it is in the text that I would look for a direction to my judgment, not in the commentaries of modern professors. The noble lord assures us that he knows not in what code the law of Parliament is to be found; that the House of Commons, when they act as judges, have no law to direct them but their own wisdom; that their decision is law; and if they determine wrong, the subject has no appeal but to heaven. What then My Lords? Are all the generous efforts of our ancestors, are all those glorious contentions by which they meant to secure to themselves, and to transmit to posterity, a known law, a certain rule of living, reduced to this conclusion, that, instead of the arbitrary power of a King, we must submit to the arbitrary power of a House of Commons? If this be true, what benefit do we have from the exchange?  Tyranny, My Lords, is detestable in every shape, but in none so formidable as when it is assumed and exercised by a number of tyrants. But this is not the fact; this is not the Constitution.  We have a law of Parliament. We have a code in which every honest man my find it. We have the Magna Charta. We have the Statute Book, and the Bill of Rights.

If a case should arise unknown to these great authorities, we have still that plain British reason left, which is the foundation of our English jurisprudence. That reason tells us that every judicial court and every political society must be invested with those powers and privileges which are necessary for performing the office to which they are appointed It tells us also that no court of justice can have a power inconsistent with or paramount to, the known laws of the land; that the people when they choose their representatives never mean to convey to them a power of invading the rights or trampling on the liberties of those they represent. What security would they have for their rights, if once they admitted that a court of judicature might determine every question that came before it, not by any known positive law, but by the vague, indeterminate, arbitrary rule of what the noble lord is pleased to call the wisdom of the court? 

With respect to the decision of the courts of justice, I am far from denying them their due weight and authority; yet placing them in the most respectable view, I still consider them, not as law, but as evidence of the law.  And before they can arrive even at that degree of authority, it must appear that they are founded in and confined by reason; that they are supported by precedents taken from good and moderate times; that they do not contradict any positive law; that they are submitted to without reluctance by the people ; that they are unquestioned by the Legislature( which is the equivalent of tacit confirmation); and what is in my judgment; is by far the most important;  that they do not violate the spirit of the Constitution.

My Lords this is not a vague or loose expression. We all know what the Constitution is. We all know that the first principle is that the subject shall not be governed by the arbitrium of any one man or body of men (less than the whole Legislature), but by certain laws, to which he has virtually given his consent. which are open to him to examine, which are not beyond his ability to understand. Now My Lords, I affirm and am ready to maintain that the late decision of the House of Commons upon the Middlesex election is is destitute of every one of the properties and conditions which I hold to be essential to the legality of such a decision. It is not founded in reason; for it carries with it a contradiction, that the representatives should perform the offices of the constituent body. It is not supported by a single precedent; for the case of Sir Robert Walpole is but a half precedent, and even that half is imperfect. Incapacity was indeed declared but his crimes are stated as the grounds of the resolution, and his opponent was declared to be not duly elected, even after his incapacity was established. It contradicts the Magna Charta and the Bill of Rights, by which it is provided that no subject shall be deprived of his freehold, unless by the judgment of his peers. Or the law of the land; and that election of members to serve in parliament shall be free. So far is this decision from being submitted to the people, that they have taken the strongest measures, and adopted the most positive language to express their discontent. Whether it will be questioned by the Legislature will depend upon your lordship’s resolution; but that it violates the spirit of the Constitution will, I think be disputed by no man who has heard this day’s debate, and who wishes well to the freedom of his country.

Yes, if we are to believe the noble lord, this great grievance, this manifest violation of the first principles of the Constitution, will not admit of a remedy. It is not even capable of redress, unless we appeal at once to heaven! My Lords I have better hopes of the Constitution, and a firmer confidence in the wisdom and constitutional authority of this House. It is to your ancestors, My Lords, it is to the English Barons, that we are indebted for the laws and Constitution we possess. Their virtues were rude and uncultivated, but they were great and sincere. Their understandings were as little published as their manners, but they had hearts to distinguish truth from falsehood, they understood the rights of humanity, and they had the spirit to maintain them.

My Lords, I think that history has not done justice to their conduct, when they obtained from their sovereign that great acknowledgement of national rights contained in the Magna Charta; they did not confine it to themselves alone, but delivered it as a common blessing to the whole people. They did not say these are the rights of the great barons, or these are the rights of the great prelates. No, My Lords, they said in the simple Latin of the times, nullus liber homo (no free man) and provided as carefully for the meanest subject as the greatest. These are uncouth words, and sound but poorly in the ears of scholars; neither are they addressed to the criticism of scholars, but to the hearts of free men. These three words nullus liber homo have a meaning which interests us all, they deserve to be remembered. — they deserve to be inculcated in our minds— they are worth all the classics. Let us not degenerate from the glorious example of our ancestors. Those iron barons (for so I may call them when compared with the silken barons of modern days) were the guardians of the people; yet their virtues My Lords, were never engaged in a question of such importance as the present. A breach has been made in the Constitution — the battlements are dismantled—the citadel is open to the first invader—the walls totter—the Constitution is not tenable. What remains is for us to stand foremost in the breach or perish in it?

Great pains have been taken to alarm us with the consequences of a difference between the two Houses of Parliament; that the House of Commons will resent our presuming to take notice of their proceedings; resent our daring to advise the Crown, and never forgive us for attempting to save the State.  My Lords I am sensitive of the importance and difficulty of this great crisis; at a moment such as this we are called upon to do our duty; without dreading the resentment of any man. But if apprehension of this kind is to affect us, let us consider which we are to respect the most; the representative or the collective body of the people. My Lords, 500 gentlemen are not 10 million. And if we must have a contention, let us take care to have the English nation on our side.  If this question be given up, the freeholders of England are reduced to a condition lower than the peasants of Poland. If they desert their own cause they deserve to be slaves. My Lords, this is not merely the cold opinion of my understanding, but the glowing expression of what I feel. It is my heart that speaks. I know I speak warmly, My Lords, but this warmth shall neither betray my argument nor my temper. The kingdom is in a flame. As mediators between the King and people, is it not our duty to represent to him the true condition and temper of his subjects? It is a duty which no particular subjects should hinder us from performing; and whenever his Majesty shall demand our advice, it will then be our duty to inquire most minutely into the cause of our present discontents. Whenever that enquiry shall come on, I pledge myself to the House to prove that, since, since the first institution of the House of Commons, not a single precedent can be produced to justify their late proceedings. My noble and learned friend (The Lord Chancellor Camden) has pledged himself to the House that he will support that assertion.

My Lords, the character and circumstances of Mr Wilkes have been improperly introduced into this question, not only here, but in the court of judicature where his cause was tried — I mean the House of Commons. With one party he was a patriot of the first magnitude, with the other the vilest incendiary. For my own part, I consider him merely and indifferently as an English subject, possessed of certain rights which the laws have given him, and which the laws alone can take from him. I am neither moved by his private vices not his public merits. In his person, though he were the worst of men, I contend for the safety and security of the best. God forbid, My Lords, that there should be a power in this country of measuring the civil rights of the subject by his moral character, or by any other rule but the fixed laws of the land! I believe, My Lords, I will not be suspected of any partiality to this unhappy man.  I am not very conversant in pamphlets and newspapers; but from what I have heard, and from what little I have read, I may venture to affirm that I have had my share in the compliments that have come from that quarter.

As for the motives of ambition, (for I must take to myself a part of the noble Duke’s insinuation) I believe, My Lords, there have been times in which I have had the honour of standing in such favour in the closet that there must have been something extravagantly unreasonable in my wishes if they might not all have been gratified.  After neglecting those opportunities, I am now suspected of coming forward, in the decline of life, in the anxious pursuit of wealth and power which is impossible for me to enjoy. Be it so!  There is one ambition at least, which I ever will acknowledge, which I will not renounce but with my life. It is the ambition of delivering to my posterity those rights of freedom which I have received from my ancestors. I am not now pleading the cause of the individual, but of every freeholder in England.  In what manner this house may constitutionally interpose in their defence, and what kind of redress this case will require and admit of, is not at present the subject of our consideration.

The amendment, if agreed to, will naturally lead us to such an inquiry. That inquiry may, perhaps, point out the necessity of an Act of the Legislature, or it may lead us perhaps to desire a conference with the other House; which one noble lord affirms is the only parliamentary way of proceeding, and which another noble lord assures us the House of Commons would either not come to, or would break off with indignation. Leaving their lordships to reconcile that matter between themselves, I shall only say that, before we have inquired, we cannot be provided with materials, consequently we are not prepared at present for a conference.

It is not impossible, My Lords, that the inquiry I speak of may lead us to advise his majesty to dissolve the present Parliament; nor have I any doubt of our right to give that advice if we should think it necessary. His majesty will then determine whether he will yield to the united petitions of the people of England, or maintain the House of Commons, in the exercise of a legislative power which heretofore abolished the House of Lords, and overturned the Monarchy.  I willingly acquit the present House of Commons of of having actually formed so detestable a design; but they cannot themselves foresee to what excesses they may be carried hereafter; and for my own part, I would be sorry to trust to their future moderation. Unlimited power is apt to corrupt the minds of those who possess it; and this I know, My Lords, that where law ends, tyranny begins.

Commentary:

This remarkable speech, reflects the learning and scholarship that set Great Britain apart from all the rest of Europe. The Magna Charta was the manifestation of the two commandments of Jesus Christ, adopted by the English in defiance of Rome, and the Constitution incorporated the Holy Bible, into the law of the land by the Magna Charta.

The Magna Charta reflects Matthew 23 verses 37-40, Thou shalt love the Lord thy God with all thy heart, and you shall love your neighbour as yourself. In other words, if a person would like a jury trial themselves, they have no right to insist another is denied this right.

A jury trial is an act of worship, where a person asks Almighty God for forgiveness, and or, what is due to him, and is the basis of all property rights and freedoms whatsoever. The Text applicable to Australia is appended here:

Magna Carta 1297 Statute

Clause 14: [14] A Freeman shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement; and a Merchant likewise, saving to him his Merchandise; and any other’s villain than ours shall be likewise amerced, saving his wainage, if he falls into our mercy. And none of the said amerciaments shall be assessed, but by the oath of honest and lawful men of the vicinage. Earls and Barons shall not be amerced but by their Peers, and after the manner of their offence. No man of the Church shall be amerced after the quantity of his spiritual Benefice, but after his Lay-tenement, and after the quantity of his offence.

Clause 29: [29] No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.