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were along with many other things particularly recommended.

At the enfuing election for the County of Middlefex, a mercantile gentleman was induced to offer himself a candidate; a measure at this time highly unpopular, as it was apprehended that advantage would be taken, of the right which the Houfe poffeffes, to judge in all cafes of difputed election, and that the decifion might be contrary to the fenfe of the county; which was the more apprehended, as it was reported that fome declaration of that nature had been made by one of the minifters. It appears that the new candidate had not properly confidered, how far his natural fortitude was equal to this arduous undertaking. The reception he met with, and the countenance of the freeholders, had, however, fuch an effect upon him, that he was glad to retire in hafte, not having been able to find a man in the county, that was hardy enough even to put him in nomination, and Mr. Wilkes was again unanimously

re-elected.

This election, as well as the former, was declared void, and near another month was fuffered to elapfe, before the time fixed for a new one. It was now thought, that this mode of electing, and declaring void, would have been carried on to the end of the feffion; and that it would then have lain over to the next meeting, in which time the minds of men might have cooled, or fome expedient might have been found to change the nature of the difcuffion; and many thought, that in the prefent circumftances, it would have been the moft prudent conduct that could have been purfued; for though

great debates arofe upon the refolution of incapacitation, and the fubfequent ones of voiding the election, yet the public did not think themfelves fo much interested in them, nor their rights in any degree fo materially affected, as by the fucceeding meafure.

A diferent conduct was however adopted, and a gentleman in a military character, and of confiderable connexions, though of no fortune or intereft immediately in the county, was hardy enough to vacate his feat in parliament by the acceptance of a nominal place, and to encounter the whole weight of popular odium, by declaring himself a candidate for the county of Middlesex. A measure at that time fuppofed to be attended with fo much danger, that policies were faid to have been opened upon his life, at fome of the infurance offices in the city.

This danger however proved to be only imaginary, for though fome riots happened upon the road, the April 13. election was conducted with great order, the fear of giving any handle to difpute its validity having proved fuperior to every other confideration with the freeholders. Though the whole weight of court interest was thrown into the fcale in this gentleman's favour, yet a majority of near four to one appeared against him upon the election, the numbers in his favour being 296, againft 1143, that voted for Mr. Wilkes. Two days after this election, a refolution was carried in the houfe by a majority of 221 to 139, that Mr. Luttrel ought to have been returned a knight of the fhire for the county of Middlefex, and the deputy

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clerk of the crown was ordered to amend the return, by rafing out the name of Mr. Wilkes, and inferting that of Col. Luttrel in its place. Fourteen days having been allowed for a petition against this decifion, one was accordingly prefented, figned by feveral freeholders, which again brought the matter into very warm and ferious debate, when however, May 8. upon a divifion, the former refolution was confirmed by a majority.

As no public meafure, fince the acceffion of the prefent royal family, had excited fo general an alarm, or caufed fo univerfal a discontent as the prefent, fo was no other ever oppofed with more firmness, or debated with greater ability, nor has any other political fubject, perhaps at any time, been fo ably difcuffed without doors, or productive of fo many mafterly writings. Among fo great a variety, we can only give a few: of the arguments that were made ufe of upon this occafion.

It was faid by thofe who oppofed this measure, that the right of the electors to be reprefented by men of their own choice, was fo effential for the prefervation of all their other rights, that it ought to be confidered as one of the moft facred parts of our conftitution. That the houfe of commons was not a felf-conftituted power, acting by an inherent right; but an elected body, reftrained within the limits of a delegated authority; hence, as they were chofen, they could not difpute the right of their conftituents, without fapping the foundation of their own existence, and infringing the fundamental principles of the conftitution. That

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the law of the land had regulated the qualifications of members to ferve in parliament, and that the freeholders of every county had an indifputable right to return whom they thought proper, pro vided he was not difqualified by any of thofe known laws. That new reftraints are not arbitrarily to be impofed at pleasure by the judgment of any court. The legiflature alone, which is the united power of the state, king, lords, and commons, can enact new reftraints. Courts of judicature, and houses of parliament acting as courts of judicature, have only the power of declaring them and in the ufe of that power are bound by the law as it ftands at the time of making that declaration. When ufage is collected from the ancient, uniform, and uninterrupted practice of parliament, we have the cuftom of parliament; and that cuftom is the law of parliament. Thefe reftraints, therefore do not ftand folely on the decifion of the houfe, or the judgment of a court having competent jurifdiction in the cafe; they are much better founded in the previous ufage, and the repeated acquiefcence of those who are affected by them.

Thefe incapacities are generally known; they are enumerated by law writers of the firft authority, who exprefsly declare all other perfons eligible; these grave writers could not conceive that a refolution of the house of commons could from time to time either create or declare new difqualifications. They are founded in good fenfe; analogous to the like reftraints adjudged in other cafes by the courts of law: and confirmed by ufage. They are not occa

fional,

fional, but fixed: to rule and govern the queftion as it fhall arife; not to ftart up on a fudden, and fhift from fide to fide, as the caprice of the day or the fluctuation of party fhall direct. Our conftitution does not know any court fo fupreme as to be above reason, nor fo abfolute as to be able to make a cuftom under pretence of declaring it. The doctrine here afferted is fuch as would maintain the refolution of the houfe to be the law of the land by virtue of its own authority only, notwithstanding it may have ufage, reafon, and juftice to contend against.

Inftances were given of former refolutions, repeatedly taken upon much deliberation, in oppofition to good fenfe and reafon, common ufage, and the rights of the electors. It was faid that a most falutary doctrine was to be drawn from the glaring inconfiftency of thefe refolutions; that where power goes beyond right, it finds no refting place; it never knows where to ftop; but that every part of its career fhews the danger of paffing. the bounds prescribed by law.

Befides the original difqualifications, founded on reafon and the common law, and which are as ancient as the conftitution, and from their natnre must be as permanent, restraints have at different times been laid on by the ftatute law, and founded therefore in the confent of the whole community. Thefe are arbitrary, take their rife from expediency, and are liable to be changed from time to time, by that authority which gave them being. If these reftraints could have been established by any authority lefs than that of an act of parliament, it is not to

be imagined that the house of commons would have applied to the other branches of the legiflature, in a matter which entirely concerned itfelf and its conftituents in their elections; though every application rifqued at leaft the mortification of a refufal; and that in our own times place-bills, and penfion bills, have been tendered at the bar of the house of lords from year to year, though their only object was the independency of the houfe of com-* mons. That the great patriots who tendered thofe bills never dreamed of the doctrine now fet up, which tells us, that any reftraint declared by the house, derives fufficient authority from that declaration, and is good in law.

That inftances may be brought of experiments made, how far a vote of the house might be effectual where the vote has been afterwards dropped, and the effect obtained by an act of parliament. That in particular, April 2, 1677, the houfe came to a refolution to prevent expences in elections after the tefte of the writ, much in the fame words as in the act afterwards paffed, 7 Will. III. This was made the ftanding order of the houfe at that time. It was renewed and confirmed as fuch, May 23, and October 21, 1678. But to give it effect, it became neceffary to pafs an act of parliament for that purpofe fix years after the revolution.

That the houfe of commons has the right incidental to its judicature, of declaring what incapacities are legal. But it behoves the houfe to take care, that, inlead of exercising the powers which it has, it affumes not thofe [*F] 3

which

which it has not; that from the temperate and judicious ufe of a legal power, vefted in it for the benefit of the people, it fwell not to the utmoft pitch of extravagance and defpotiím, and make the law, under pretence of declaring it.

It was fhewn that Mr. Wilkes was not, by any conftruction what ever, under any legal difability. That there are an infinite number of cafes, in which the expediency of new powers in magiftrates, courts of justice, and either house of parliament are apparent, But thefe powers cannot be affumed. They must be derived from a fuperior authority to an inferior; from the legifla.ure to either houfe of parliament. That there is a manifeft difference between expulfion and difability;.and that we must totally forget the common fenfe and meaning of words if we can perfuade ourselves that expulfion, which is the lefs degree of punishment, involves difability, which is the greater; and that the fame difference between the fenfe of thefe words in common language, has in a parliamentary fenfe been conftantly obferved by the houfe of commons.

The causes of expulfion were examined; it was faid, that the charge against Mr. Wilkes was fo accumulated, that it was difficult to fay precifely for what he was expelled; and that it was probable if the question had been put feparately for each offence contained in that charge, judgment of expulfion might not have paffed for either. That the firft offence contained in the general charge, was the publication of the North Bon; which had been taken up by a former parliament, and for which he had been then punished

by expulfion. That being punished by a former 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 houfe to fuppofe it. The fecond offence was the publication of an impious and obfcene libel, which had been taken up by the house of lords in a former parliament, and for which he had been convided and punished; but which was no offence against the house of commons, nor in any respect within its criminal jurifdiction, The third and laft offence, was the libel contained in the introductory preface to lord Weymouth's letter: however this may be understood as a libel, it was faid not to be one of thofe offences which are within the criminal ju→ rifdiction of the house of commons.

The precedents of disability founded upon former refolutions were ftriatly examined; it was fhewn that fome of them overthrow themselves; that nobody can rely on the authority of proceedings in which there appears a manifeft abuse, a daring illegality, and a flavish fubmiffion to power: fuch 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 invafions of the conftitution. That in the year 1642, the precedents grow upon us fa abundantly as to lofe all pretence to authority. That forty-nine members were expelled in 'two months only of that year, and moft or all of them rendered incapable of fitting that the majority then

were

were clearing the house of their obnoxious brethren; and that to render their policy compleat, and better fecure to their order of incapacity the effect intended, new writs were feldom iffued at the time of the expulfion; and frequently were not iffued at all.

That order arose out of this confufion: and that from the reftoration to the prefent time, the fentence or punishment has never gone beyond expulfion, except in a few inftances of members difabled from being elected at particular boroughs, on proof of a corrupt influence obtained in them.

That the power of expulfion is fufficiently great: it may be ufed to difgrace, to harafs, to ruin an individual; but it carries with it no public danger. If the houfe abuse its power in the execution of it, the electors have their remedy, by re-electing the expelled member. But when incapacity of being re-elected is fuper-added to the expulfion, it is no longer the cafe of an individual; the rights of the electors are moft materially affected. A ftop is put to the freedom of their election. The number of perfons open to their choice is diminished and though that diminution is in one only, that fingle perfon may be their first favourite, and perhaps on that account rendered incapable. Nor does the evil ftop here. The elected learn to tafte the sweets of calling their company, not only by removing troublesome opponents, but barring their re-entry; and by putting a negative on the firft intereft in any place, make room for the second. That reafon cries aloud against fuch power in any fet of men whatever. Happily fhe is oppofed by

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no confiderbale lift of precedents, except in eighteen years of confufion, from 1642 to 1660. That when we fee this power fo feldom exercifed in old times, fo grofsly abused when it was, and fo entirely abandoned fince, we cannot but conclude that ufage difclaims the power as much as reafon protests againft it, and that it does not exist in our conftitution.

Such were a few of the many arguments urged with great force and energy on this fide of the queftion. On the other fide it was faid, that the houfe of commons had long been allowed a power of expelling their own members, and that unless the perfon expelled was to be excluded, the power of expulfion was wholly ufelefs, and tended rather to expofe the houfe of commons to contempt, than to increase its dignity or importance. That the right claimed by the freeholders of Middlefex, was no other than the right of doing wrong, of fending a member to parliament, who was certainly ineligible in the eye of reafon, however he might be deemed returnable in the judgment of the law. That if the house was obliged by the conftitution to receive all perfons who were returned by a majority of freeholders, and who were qualifed according to law, the fr eholders were equally bound not to return improper perfons. That the law could not foresee all poffible cafes; but that if it could have been thought, that the freeholder, would. have made an injudicious, improper, or dangerous ufe, of this great privilege of election, the confli tution would not have entrusted them with it. That our wife anceftors by no means intended, that

infidels

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