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oppressions are included, the invasion which has left us no property, the alarm that suffers no pa. triot to sleep in quiet, is comprised in a vote of the House of Commons, by which the freeholders of Middlesex are deprived of a Briton's birth. right, representation in parliament.
They have indeed received the usual writ of election, but that writ, alas! was malicious mockery; they were insulted with the form, but denied the reality, for there was one man excepted from their choice.
Non de vi, neque cæde, nec veneno,
Sed lis est mibi de tribus capellis. The character of the man thus fatally excepted, I have no purpose to delineate. Lampoon itself would disdain to speak ill of him of whom no man speaks well. It is sufficient that he is expelled the House of Commons, and confined in jail as being legally convicted of sedition and impiety.
That this man cannot be appointed one of the guardians and counsellors of the church and state, is a grievance not to be endured. Every lover of liberty stands doubtful of the fate of posterity, because the chief county in England cannot take its representative from a jail.
Whence Middlesex should obtain the right of being denominated the chief county, cannot easily be discovered; it is indeed the county where the chief city happens to stand, but how that city treated the favourite of Middlesex, is not yet forgotten. The county,as distinguished from the city has no claim to particular consideration.
That a man was in jail for sedition and impiety, would, I believe, have been within memory a suffi. cient reason why he should not come out of jail a legislator. This reason, notwithstanding the mutability of fashion, happens still to operate on the House of Commons. Their notions, however strange, may be justified by a common observation, that few are mended by imprisonment, and that he whose crimes have made confinement necessary, seldom makes any other use of his enlargement, than to do with greater cunning what he did before with less.
But the people have been told with great confidence, that the House cannot control the right of constituting representatives; that he who can persuade lawful electors to choose him, whatever be . his character, is lawfully chosen, and has a claim to a seat in parliament, from which no human authority can depose him.
Here, however, the patrons of opposition are in some perplexity. They are forced to confess, that by a train of precedents sufficient to establish a custom of parliament, the House of Commons has jurisdiction over its own members; that the whole has power over individuals; and that this power has been exercised sometimes in imprisonment, and often in expulsion.
That such power should reside in the House of Commons in some cases, is inevitably necessary, since it is required by every polity, that where there is a possibility of offence; there should be a possibility of punishment. A member of the House cannot be cited for his conduct in para liament before any other court; and therefore,
if the House cannot punish him, he may attack with impunity the rights of the people, and the title of the king.
This exemption from the authority of other courts was, I think, first established in favour of the five members in the long parliament. It is not to be considered as an usurpation, for it is implied in the principles of government. If legislative powers are not co-ordinate, they cease in part to be legislative; and if they be co-ordinate, they are unaccountable; for to whom must that power account, which has no superior?
The House of Commons is indeed dissoluble by the king, as the nation has of late been very clamorously told; but while it subsists it is co-ordinate with the other powers, and this co-ordination ceases only when the House by dissolution ceases to subsist.
As the particular representatives of the people are in their publick character above the control of the courts of law, they must be subject to the jurisdiction of the House; and as the House, in the exercise of its authority, can be neither directed nor restrained, its own resolutions must be its laws, at least, if there is no antecedent decision of the whole legislature.
This privilege, not confirmed by any written law or positive compact, but by the resistless power of political necessity, they have exercised, probably from their first institution, but certainly, as their records inform from the 23d of Elizabeth, when they expelled a member for derogating from their privileges.
It may perhaps be doubted, whether it was orie ginally necessary, that this right of control and punishment, should extend beyond offences in the exercise of parliamentary duty, since all other crimes 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 againt 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 uncontrolable 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 pube lished 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.