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which it has not; that from the temperate and judicious use of a legal power, vested in it for the benefit of ihe people, it swell not to the utmost pitcYof extravagance and despotism, and make the law, underpreter.ee of declaring it.
It was (hewn that Mr. Wilkes was not, by any construction whatever, under any legal disability.
That there are an infinite number of cafes, in which the expediency of new powqrs in magistrates, courts of justice, End either house of parliament are apparent, But these powers cannot be assumed. They must be derived from a superior authority to an inferior; from the legislature to either house of parliament. That there is a manifest difference between expulsion and disability j.and that we must totally forget the common sense and meaning of words if we can persuade ourselves that expulsion, which is the less degree of punishment, involves disability, which is the greater; and that the fame difference between the senie of these words in common language, has in a parliamentary fense b.-en constantly observed by the house of commons.
The causes of expulsion were examined; it was said, that the charge against Mr. Wilkes was so accumulated, that it was difficult to fay precnelv for what he was expelled ; and that it was probable if 'he question had been put separately for t.;h offence contained in trat charge, judgment of expulsion might not have passed for either. 1 hat the first offence contained in the general charge, was the publication of the North B . ion; which had beeri taken up b/ a former parliament, and fpr Y.luch he had been then punished
by expulsion. That being punished by a farmer parliament, he could not be brought a second time to punishment in this parliament for the fame offence, and that it would be an imputation on the justice of the house to suppose it. The second offence was the publication of an impious and obscene libel, which had been taken up by the house of lords in a former parliament, and for which he had been convicted and punished; but which was no offence against the house of commons, nor in any respect within its criminal jurisdiction. The third and last offence, was the libel contained in? the introductory preface to lord Weymouth's letter: however this may be understood as a libel, it was; said not to be one of those offences which are within the criminal jurisdiction of the house of commons.
The precedents of disability founded upon former resolutions were strictly examined; it was shewn that some of them over-! throw themselves; that nobody can rely on the authority of proceedings in which there appears a manifest abuse, a daring illegality, and a slavish submission tq power: such proceedings are vicious "in the whole as well as in part; and ought never to be quoted in order to be followed. That others were established in the most violent times, when every day produced new invasions pf the constitution. That in the year 1642, the precedents grow upon us sq abundantly as to lose all pretence to authority. That forty-nine members were expelled in two months only of that year, and most or all of them rendered incapable of sitting: that the majority then
wersj were clearing the house of their ob- • noxious brethren; and that to render their policy com pleat, and better secure to the.r order of incapacity the effect intended, new writs were seldom issued at the tim^ of the expulsion; and frequently were not issued at all.
That order arose out of this confusion; and that from the restoration tothe present time, thesentence or punishment has never gone beyond expulsion, except in a few instances of members disabled from being elected at particular boron ghs, on proof of a corrupt influence obtained in them.
That the power gf expulsion is sufficiently great: it may be used to disgrace, to harass, to ruin an individual; but it carries with it no public danger. If the house abuse its power in the execution of it, the electors have their remedy, by re-electing the expelled niember. But when incapacity of being re-elected is super-added to the expulsion, it is no longer the cafe of an individual; the rights of the electors are most materially affected. A stop is put to the freedom of their election. The number of persons open to their choice is diminished: and though that diminution is in one only, that single person may be their first favourite, and perhaps on that account rendered incapable. Nor does the evil stop here. "The elected learn to taste the sweet* of culling their company, not on'y by removing troublesome opponents, but barring their re-entry; and by putting a negative on the first interest in any place, make room for the second. That reason cries aloud against such a power in any set of men whatever. Happily she is opposed by
no confiderbale list of precedents, except in eighteen years of confusion, from 1642 to 1660. That when we see this power so seldom exercised in old times, so grossly abused when it was, and so entirely abandoned since, we cannot but conclude that usage disclaims the power as much as reason protests against it, and that it does not exist in our constitution.
* Such were a few of the many arguments urged with great force and energy on this side of the question. On the other side it was said, that the house of commons had long been allowed a power of expelling their own members, and that unless the person expelled was to be excluded, the power of expulsion was wholly useless, and tended rather to expose the house of commons to contempt, than to increase its dignity or importance. That the right claimed by the freeholders of Middlesex, was no other than the right of doing wrong, of sending a member to parliament, who was certainly ineligible in the eye of reason, however he might be deemed returnable in the judgment of the law. That if the house was obliged by the constitution to receive all persons who were returned by a majority of freeholders, and who were qualified according to law, the fr eholders were equally bound not to return improper persons. Thatthe law could not foresee all possible cases; but that if it could have been thought, thatthe freeholder, would have made an injudicious, improper, or dangerous us-, of this Jj: pat privilege of election, the cor'U-, tution would not have en'rusted them with it. That our wife ancestors by no means intended, that
infidels (houhi be th;e guardians of our religion, beggars the protectors v pf our property, or convicts the fjamers.of our laws. ,ul ".,, ■' ,„ • That the house of commons is the sole court of judicaturein all cafes of election.. That this authority is derived from the first principles of our government; viz. the necessary independence of the three branches of the legislature. Did any other body of men possess this power, members might bje obtruded upon the house, and their resolutions might be influenced under colour of determining elections. They have therefore an exclusive jurisdiction, and must be in all these cases the dernier resort of justice. That the house in the present case is the competent judge of disability, and that their decision on it is final,; that if in this, or any other instance, its decisioHs were found to be attended with prejudice, the united branches of the legislature, in their supreme and collective ca- • pacity, might interpose, and by pasting a law regulate such decisions for the future; but that nothing less could restrict their au- . thority.
It is aiked, under what head of legal disability, is the present expulsion to be found? how are the electors to know it? The answer is tasy; the records of parliament will inform them. How have they learnt, that judges of the superior courts cannot be chosen representatives of the people? How are aliens? Jjow are clergymen disqualified? The house has adjudged them incapable, as the several questions oc
jt was said, that a very extraor
,■ ry principle had been adopted
. he course of this debate, as in t
if the Commons, wanted to infringe upon the liberties of the people, without recollecting that the commons arid. the. .people are virtually therfame/, and'that any endeavour to make them, separate bodies, is no less dangerous, than it is preposterous. If the commons, in their representative capacity, have privileges which render them important, that importance increases the consequence of the people in their capacity of delegation: the people cannot be' secure, unless the commons are secure: they are inseparably connected, both in interest and in freedom: and though upon some occasions the privilege of parliament may be a seeming oppression .to individuals, the loss of it would be attended with very fataj, effects to the whole community. That if the house of commons had not in their collective capacity a title to peculiar privileges, no one member in his individual character could claim them with the smallest degree of propriety; yet individuals hourly . claimed them with confidence, and they were admitted by the law of the land.' .',
That nothing could be more misrepresented, than by saying that this measure was an injury to the freeholders of Middlesex. That on the contrary the injury was attempted on their side, who would obtrude an improper person on the house as a member, and obstinately persevere in this attempt, though all England was open to them for the choice of a proper person. That the supposed violation of right, in returning a person with a manifest inferiority of votes, will vanilh, if the subject is properly considered, and a liberal construction put upon the
law. That those who obstinately and wilfully persevere in voting for an unqualified person, are to be considered as not voting at all; their right of suffrage is acknowledged; but if the elector obstinately refuses to exercise this right according to law, he wantonly suspends his own right for the time, and his act being illegal is consequently void, and he is only in the situation of a man who had neglected to attend; he suffers no injury, he knows the consequence of what he does, and if he chuses to indulge his humour, it cannot even be counted a hardship. That an unqualified candidate can be no candidate'; and that it is so evident that votes given to a person incapable by law of receiving them must in their nature be null and void, that it is surprizing how any body can dispute it.
These arguments were supported by a long train of precedents, shewing the usage of the house in a number of cases, under the two heads of .exclusion and expulsion. The former cases came generally within the line which has before ben animadverted upon; the inferences drawn from the latter were greatly controverted, and in some instances, particularly the cafe of Sir Robert Walpole, were shewn to overthrow the principle which they were brought to establish. The prorogration succeeded the *. day after the final deci
lvja" 9* sion on the Middlesex
election. Great approbation was given, by the speech from the thione, to the whole conduct of parliament; their attention to the permanent commercial interests of their country, as well as to the immediate benefit in point of revenue, their deliberations on East India affairs, were particularly commended; and it was hoped that the hearty concurrence th.-.t appeared in all the branches of the legislature, of maintaining the due execution of the laws in every part of the dominions, would be productive of salutary effects in America. The rupture between Russia and the Porte was regretted; a warm intention of endeavouring to restore peace between them expressed; and a hope that the calamities of war would not extend t3 any other part of Europe. Particular acknowledgements were paid for the provision that was made for discharging the debts incurred on account of the civil government; and an assurance given, that the readiness shewn in relieving the difficulties that were still increasing from the continuance of that debt, should always be considered as an additional motive for œconomy in that respect. And it was finally and strongly recommended, and great concern expressed for the necessity of it, that they would exert their utmost efforts in their several, counties, for the maintenance of public peace and good order.