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The Commons cannot make laws, they can only pass resolutions, which, like all resolutions, are of force only to those that make them, and to those only while they are willing to observe them,
The vote of the House of Commons has therefore only so far the force of a law, as that force is necessary to preserve the vote from losing its efficacy, it must begin by operating upon theinselves, and extend its influence to others, only by consequences arising from the first intention. He that starts game on his own manor, may pursue it into another.
They can properly make laws only for themselves : a member, while he keeps his seat, is subject to these laws; but when he is expelled, the jurisdiction ceases, for he is now no longer within their dominion,
The disability, which a vote can superinduce to expulsion, is no more than was included in expulsion itself; it is only a declaration of the Commons, that they will permit no longer him whom they thus censure to sit with them in parliament; a declaration made by that right which they necessarily possess, of regulating their own House, and of inflicting punishment on their own delinquents.
They have therefore no other way to enforce the sentence of incapacity, than that of adhering to it. They cannot otherwise punish the candidate so disqualified for offering himself, nor the electors for accepting him. But if he has any competitor, that competitor must prevail, and if he has none, his election will be void; for the right of the House to reject, annihilates with regard to the man so rejected the right of electing.
It has been urged, that the power of the House terminates with their session ; since a prisoner committed by the Speaker's warrant cannot be detained during the recess. That power indeed ceases with the session, which must operate by the agency of others, because, when they do not sit, they can employ no agent, having no longer any legal existence; but that which is exercised on themselves revives at their meeting, when the subject of that power, still subsists. They can in the next session refuse to readmit him, whom in the former session they expelled,
That expulsion inferred exclusion in the present case, must be, I think, easily admitted. The expul. sion and the writ issued for a new election were in the same session, and since the House is by the rule of parliament bound for the session by a vote once passed, the expelled member cannot be admitted. He that cannot be admitted, cannot be elected; and the votes given to a man ineligible being given in vain, the highest number for an eligible candidate becomes a majority.
To these conclusions, as to most moral, and to all political positions, many objections may be made. The perpetual subject of political disquisition is not absolute, but comparative good. Of two systems of government, or two laws relating to the same subject, neither will ever be such as theoretical nicety would desire, and therefore neither can easily force its way against prejudice and obstinacy; each will have its excellencies and defects, and every man, with a little help from pride, may think his own the best,
It It seems to be the opinion of many, that expul. sion is only a dismission of the representative to his constituents, with such a testimony against him as his sentence may comprise; and that if his constituents, notwithstanding the censure of the House, thinking his case hard, his fault trifling, or his excellencies such as overbalance it, should again chuse him as still worthy of their trust, the House cannot refuse him, for his punishment has purged his fault, and the right of electors must not be violated.
This is plausible, but not cogent. It is a scheme of representation, which would make a specious appearance in a political romance, but cannot be brought into practice among us, who see every day the towering head of speculation bow down unwillingly to groveling experience.
Governments formed by chance, and gradually im. proved by such expedients, as the successive discovery of their defects happened to suggest, are never to be tried by a regular theory. They are fabricks of dissimilar materials, raised by different architects, upon different plans. We must be content with them as they are; should we attempt to mend their disproportions, we might easily demolish, and difficultly rebuild them.
Laws are now made, and customs are established; these are our rules, and by them we must be guided.
It is uncontrovertibly certain, that the Commons never intended to leave electors the liberty of returning them an expelled member, for they always require one to be chosen in the room of him that is
expelled, expelled, and I see not with what propriety a man can be rechosen in his own room.
Expulsion, if this were its whole effect,' might very often be desirable. Sedition, or obscenity, might be no greater crimes in the opinion of other electors, than in that of the freeholders of Middiesex; and many a wretch, whom his colleagues should expel, might come back persecuted into fame, and provoke with harder front a second expulsion.
Many of the representatives of the people can hardly be said to have been chosen at all. Some by inheriting a borough inherit a seat; and some sit by the favour of others, whom perhaps they may gratify by the act which provoked the expulsion. Some are safe by their popularity, and some by their alliances. None would dread expulsion, if this doctrine were received, but those who bought their elections, and who would be obliged to buy them again at a higher price.
But as uncertainties are to be determined by things certain, and customs to be explained, where it is possible, by written law, the patriots have triumphed with a quotation from an act of the 4th and 5th of Anne, which permits those to be rechosen, whose seats are vacated by the acceptance of a place of profit. This they wisely consider as an expulsion, and from the permission, in this case, of a re-election, infer that every other expulsion leaves the delinquent entitled to the same indulgence. This is the paragraph :
** If any person, being chosen a member of the « House of Commons, shall accept of any office « from the crown, during such time as he shall con“ tinue a member, his election shall be, and is hereby « declared to be void, and a new writ shall issue for “ a new election, as if such person so accepting was “ naturally dead. Nevertheless such person shall “ be capable of being again elected, as if his place “ had not become void as aforesaid.”
How this favours the doctrine of readmission by a second choice, I am not able to discover. The statute of 30 Ch. II. had enacted, That he who should sit in the House of Commons, without taking the oaths and subscribing the test, should be disabled to sit in the House during that Parliament, and it writ should issue for the election of a new member in place of the member so disabled, as if such member had naturally died.
This last clause is apparently copied in the act of Anne, but with the common fate of imitators. In the act of Charles, the political death continued during the parliament, in that of Anne it was hardly worth the while to kill the man whom the next breath was to revive. It is, however, apparent, that in the opinion of the parliament, the dead-doing lines would have kept him motionless, if he had not been recovered by a kind exception. A seat vacated, could not be regained without express permission of the same statute.
The right of being chosen again to a seat thus vacated, is not enjoyed by any general right, but required a special clause, and solicitous provision.