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are cognizable by other courts. But they who are the only judges of their own rights, have exerted the power of expulsion on other occasions, and when wickedness arrived at a certain magnitude, have considered an offence against society as an offence against the House.
They have therefore divested notorious delinquents of their legislative character, and delivered them up to shame or punishment, naked and unprotected, that they might not contaminate the dignity of parliament.
It is allowed that a man attainted of felony cannot sit in Parliament, and the Commons probably judged, that not being bound to the forms of law, they might treat these as felons, whose crimes were in their opinion equivalent to felony; and that as a known felon could not be chosen, a man so like a felon, that he could not easily be distinguished, ought to be expelled.
The first laws had no law to enforce them, the first authority was constituted by itself. The power exercised by the House of Commons is of this kind, a power rooted in the principles of government, and branched out by occasional practice; a power which necessity made just, and precedents have made legal.
It will occur that authority thus uncontrollable, may, in times of heat and contest, be oppressively and injuriously exerted, and that he who suffers injustice, is without redress, however innocent, however miserable.
The position is true, but the argument is useless, The Commons must be controlled, or be exempt
from control. If they are exempt they may do injury which cannot be redressed, if they are controlled they are no longer legislative.
If the possibility of abuse be an argument against authority, no authority ever can be established ; if the actual abuse destroys its legality, there is no legal government now in the world.
This power, which the Commons have so long exercised, they ventured to use once more against Mr. Wilkes, and on the 3d of February, 1769, expelled him the House, for having printed and published a seditious libel, and three obscene and impious libels. · If these imputations were just, the expulsion was surely seasonable; and that they were just, the House had reason to determine, as he had confessed himself, at the bar, the author of the libel which they term seditious, and was convicted in the King's Bench of both the publications,
But the freeholders of Middlesex were of another opinion. They either thought him innocent, or were not offended by his guilt. When a writ was issued for the election of a knight for Middlesex, in the room of John Wilkes, Esq; expelled the House, his friends on the sixteenth of February chose him again,
On the 17th, it was resolved, that John Wilkes, Esq; having been in this session of parliament expelled the House, was, and is, incapable of being elected a member to serve in this present parliament.
As there was no other candidate, it was resolved, at the same time, that the election of the sixteenth was a void election.
The freeholders still continued to think that no other man was fit to represent them, and on the sixteenth of March elected him once more. Their resolution was now so well known, that no opponent ventured to appear.
The Commons began to find, that power without materials for operation can produce no effect. They might make the election void for ever, but if no other candidate could be found, their determination could only be negative. They, however, made void the last election, and ordered a new writ.
On the 13th of April was a new election, at which Mr. Lutterel, and others, offered themselves candidates. Every method of intiinidation was used, and some acts of violence were done to hinder Mr. Lutterel, from appearing. He was not deterred, and the poll was taken, which exhibited for
Mr. Wilkes - - 1143
The Sheriff returned Mr. Wilkes; but the House on April the fifteenth, determined that Mr. Lutterel was lawfully elected.
From this day begun the clamour which has continued till now. Those who had undertaken to op pose the ministry, having no grievance of greater magnitude, endeavoured to swell this decision into bulk, and distort it into deformity, and then held it out to terrify the nation.
Every artifice of sedition has been since practised to awaken discontent and inflame indignation. The papers of every day have been filled with exhortations and menaces of faction. The madness has
spread through all ranks and through both sexes; women and children have clamoured for Mr. Wilkes, honest simplicity has been cheated into fury, and only the wise have escaped infection. · The greater part may justly be suspected of not believing their own position, and with them it is not necessary to dispute. They cannot be convinced who are convinced already, and it is well known that they will not be ashamed.
The decision, however, by which the smaller num· ber of votes was preferred to the greater, has per
plexed the minds of some, whose opinions it were indecent to despise, and who by their integrity well deserve to have their doubts appeased.
Every diffuse and complicated question may be examined by different methods, upon different principles; and that truth, which is easily found by one investigator, may be missed by another, equally honest and equally diligent. : Those who inquire, whether a smaller number of legal votes can elect a representative in opposition to a greater, must receive from every tongue the same answer.
The question, therefore, must be, whether a smaller number of legal votes, shall not prevail against a greater number of votes not legal?
It must be considered, that those votes only are legal which are legally given, and that those only are legally given, which are given for a legal candidate. · It remains then to be discussed, whether a man expelled can be so disqualified by a vote of the
House, as that he shall be no longer eligible by law. ful electors ?
Here we must again recur, not to positive institus tions, but to the unwritten law of social nature, to the great and pregnant principle of political necessity, All government supposes subjects, all authority implies obedience, To suppose in one the right to com mand what another has the right to refuse, is absurd and contradictory, A state so constituted must rest for ever in motionless equipoise, with equal attractions of contrary tendency, with equal weights of power balancing each other,
Laws which cannot be enforced, can neither prevent nor rectify disorders. A sentence which cannot be executed can have no power to warn or to reform. If the Commons have only the power of dismissing for a few days the man whom his constituents can immediately send back, if they can expel but cannot exclude, they have nothing more than nominal authority, to which perhaps obedience never may be paid.
The representatives of our ancestors had an opinion very different; they fined and imprisoned their members; on great provocation they disabled them for ever; and this power of pronouncing perpetual disability is maintained by Selden himself.
These claims seem to have been made and allowed, when the constitution of our government had not yet been sufficiently studied. Such powers are not legal, because they are not necessary: and of that power which only necessity justifies, no more is to be admitted than necessity obtrudes.