« 前へ次へ »
he is expelled the House of Commons, and con- y co-ordinate, they are unaccountable ; for to fined in jail as being legally convicted of sedition whom must that power account, which has no and impiety.
superior ? That this man cannot be appointed one of the The House of Commons is, indeed, dissoluble guardian counsellors of the church and state, is by the king, as the nation has of late been very a grievance not to be endured. Every lover of clamorously told; but while it subsists it is liberty stands doubtful of the fate of posterity, co-ordinate with the other powers, and this cobecause the chief county in England cannot ordination ceases only when the House by distake its representative from a jail.
solution ceases to subsist. Whence Middlesex should obtain the right of As the particular representatives of the peubeing denominated the chief county, cannot ple are in their public character above the coneasily be discovered; it is, indeed, the county trol of the courts of law, they must be subject where the chief city happens to stand, but how to the jurisdiction of the House ; and as the that city treated the favourite of Middlesex, is House, in the exercise of its authority, can be not yet forgotten. The county, as distinguished neither directed nor restrained, its own resolufrom the city, has no claim to particular consi- tions must be its laws, at least, if there is no deration.
antecedent decision of the whole legislature. That a man was in jail for sedition and im- This privilege, not confirmed by any written piety, would, I believe, have been within me law or positive compact, but by the resistless mory a sufficient reason why he should not power of political necessity, they have exercised, come out of jail a legislator. This reason, not- probably from their first institution, but cerwithstanding the mutability of fashion, happens tainly, as their records inform us, from the 23d still to operate on the House of Commons. of Elizabeth, when they expelled a member for Their notions, however strange, may be justi- derogating from their privileges. fied by a common observation, that few are It may perhaps be doubted, whether it was mended by imprisonment, and that he whose originally necessary, that this right of control crimes have made confinement necessary, seldon and punishment should extend beyond offences makes any other use of his enlargement than in the exercise of parliamentary duty, since all to do witb greater cunning what he did before other crimes are cognizable by other courts. with less.
But they who are the only judges of their own But the people have been told with great rights, have exerted the power of expulsion on confidence, that the House cannot control the other occasions, and when wickedness arrived right of constituting representatives : that he at a certain magnitude, have considered an ofwho can persuade lawful electors to choose him, fence against society as an offence against the whatever be his character, is lawfully chosen, House. and has a claim to a seat in parliament, from
They have therefore divested notorious delinwhich no human authority can depose him. quents of their legislative character, and deli
Here, however, the patrons of opposition are vered them up to shame or punishment, naked in some perplexity. They are forced to confess, and unprotected, that they might not contamithat by a train of precedents sufficient to esta- nate the dignity of parliament. blish a custom of parliament, the House of Com- It is allowed that a man attainted of felony mons has jurisdiction over its own members ; cannot sit in parliament, and the Commons that the whole has power over individuals; and probably judged, that not being bound to the that this power has been exercised sometimes in forms of law, they might treat those as felons, imprisonment, and often in expulsion.
whose crimes were, in their opinion, equivalent That such power should reside in the House to felony: and that as a known felon could of Commons in some cases, is inevitably neces- not be chosen, a man so like a felon, that he sary, since it is required by every polity, that could not easily be distinguished, ought to be where there is a possibility of offence, there expelled. should be a possibility of punishment. A mem- The first laws had no law to enforce them, ber of the House cannot be cited for his con- the first authority was constituted by itself. duct in parliament before any other court: and The power exercised by the House of Commons therefore if the house cannot punish him, he is of this kind, a power rooted in the principles may attack with impunity the rights of the of government, and branched out by occasional people, and the title of the king.
practice; a power which necessity made just, This exemption from the authority of other and precedents have made legal. courts, was, I think, first established in favour It will occur that authority thus uncontrolof the five members in the long parliament. It lable, may, in times of heat and contest, be opis not to be considered as a usurpation, for it pressively and injuriously exerted, and that he is implied in the principles of government. If who suffers injustice, is without redress, howlegislative powers are not co-ordinate, they ever innocent, however miserable. cease in part to be legislative; and if they be The position is true, but the argument is use. less. The Commons must be controlled, or be continued till now. Those who had undertaken exempt from control. If they are exempt, they to oppose the ministry, having no grievance of may do injury which cannot be redressed, if they greater magnitude, endeavoured to swell this are controlled, they are no longer legislative. decision into bulk, and distort it into deformity.
If the possibility of abuse be an argument and then held it out to terrify the nation. against authority, no authority ever can be esta- Every artifice of sedition bas been since pracblished ; if the actual abuse destroys its legality, tised to awaken discontent and inflame indigthere is no legal government now in the world. nation. The papers of every day have been
This power, which the Commons have so long filled with exhortations and menaces of faction. exercised, they ventured to use once more against The madness has spread through all ranks and Mr. Wilkes, and on the 3rd of February, 1769, through both sexes; women and children have expelled him the House, “ for having printed clamoured for Mr. Wilkes, honest simplicity and published a seditious libel, and three obscene has been cheated into fury, and only the wise and impious libels.”
have escaped infection. If these imputations were just, the expulsion The greater part may justly be suspected of was surely seasonable; and that they were just, not believing their own position, and with them the House had reason to determine, as he had it is not necessary to dispute. They cannot be confessed bimself, at the bar, the author of the convinced who are convinced already, and it is libel which they term seditious, and was con- well known that they will not be ashamed. victed in the King's Bench of both the pub- The decision, however, by which the smaller lications.
number of votes was preferred to the greater, But the freeholders of Middlesex were of has perplexed the minds of some, whose opianother opinion. They either thought bim in- nions it were indecent to despise, and who by nocent, or were not offended by his guilt. When their integrity well deserve to have their doubts a writ was issued for the election of a knight for appeased. Middlesex, in the room of John Wilkes, Esq. Every diffuse and complicated question may expelled the House, his friends on the 16th of be examined by different methods, upon different February chose him again.
principles; and that truth, which is easily found On the 17th, it was resolved, “that John by one investigator, may be missed by another, Wilkes, Esq. having been in this session of par- equally honest and equally diligent. liament expelled the House, was, and is, inca- Those who inquire whether a smaller number pable of being elected a member to serve in this of legal votes can elect a representative in oppo present parliament.”
sition to a greater, must receive from every As there was no other candidate, it was re- tongue the same answer. solved at the same time, that the election of the The question, therefore, must be, whether a 16th was a void election.
smaller number of legal votes, shall not prevail The freeholders still continued to think that against a greater number of votes not legal? no other man was fit to represent them, and on It must be considered, that those votes only the 16th of March elected him once more. Their are legal which are legally given, and that those resolution was now so well known, that no op- only are legally given, which are given for a legal ponent ventured to appear.
candidate. The Commons began to find, that power with- It remains then to be discussed, whether a out materials for operation can produce no ef- man expelled can be so disqualified by a vote of fect. They might make the election void for the House, as that he shall be no longer eligible ever, but if no other candidate could be found, by lawful electors? their determination could only be negative. Here we must again recur, not to positive ioThey, however, made void the last election, and stitutions, but to the unwritten law of social ordered a new writ.
nature, to the great and pregnant principle of On the 13th of April was a new election, at political necessity. All government supposes which Mr. Lutterel, and others, offered them- subjects, all authority implies obedience. To selves candidates. Every method of intimida- suppose in one the right to command what antion was used, and some acts of violence were other has the right to refuse, is absurd and condone to hinder Mr. Lutterel from appearing. tradictory. A state so constituted must rest for Ile was not deterred, and the poll was taken, ever in motionless equipoise, with equal attracwhich exhibited for
tions of contrary tendency, with equal weights Mr. Wilkes
of power balancing each other. Mr. Lutterel
Laws which cannot be enforced, can neither
prevent nor rectify disorders. A sentence which The Sheriff returned Mr. Wilkes; but the House cannot be executed, can bave no power to warn on April the 15th, determined that Mr. Lutterel or to reform. If the Commons have only the was lawfully elected.
power of dismissing for a few days the man From this day begun the clamour which has whom his constituents can immediately send
back, if they can expel but cannot exclude, they | subject of that power still subsists. They can in have nothing more than nominal authority, to the next session refuse to re-admit him, whom wbich perhaps obedience never may be paid. in the former session they expelled.
The representatives of our ancestors had an That expulsion inferred exclusion in the preopinion very different; they fined and imprison- sent case, must be, I think, easily admitted. ed their members; on great provocation, they The expulsion, and the writ issued for a new disabled them for ever ; and this power of pro- election, were in the same session, and since the nouncing perpetual disability is maintained by House is by the rule of parliament bound for the Selten himself.
session by a vote once passed, the expelled memThese claims seem to have been made and al- ber cannot be admitted. He that cannot be adlowed, when the constitution of our government mitted, cannot be elected; and the votes given had not yet been sufficiently studied. Such to a man ineligible being given in vain, the bighpowers are not legal, because they are not ne- est number for an eligible candidate becomes a cessary; and of that power which only necessity majority. justifies, no more is to be adınitted than necessity To these conclusions, as to most moral, and obtrudes.
to all political, positions, many objections may be The Commons cannot make laws, they can made. The perpetual subject of political disonly pass resolutions, which, like all resolutions, quisition is not absolute, but comparative good. are of force only to those that make them, and Of two systems of government, or two laws reto those only while they are willing to observe lating to the same subject, neither will ever be them.
such as theoretical nicety would desire, and The vote of the House of Commons has there therefore neither can easily force its way against fore only so far the force of a law, as that force prejudice and obstinacy; each will have its exis necessary to preserve the vote from losing its cellences and defects, and every man, with a efficacy; it must begin by operating upon them- little help from pride, may think his own the selves, and extend its influence to others, only best. by consequences arising from the first intention. It seems to be the opinion of many, thạt exHe that starts game on his own manor, may pur- pulsion is only a dismission of the representasue it into another.
tive to his constituents, with such a testimony They can properly make laws only for them against him as his sentence may comprise ; and selves: a member, while he keeps his seat, is that if his constituents, notwithstanding the censubject to these laws; but when he is expelled, sure of the House, thinking his case hard, his the jurisdiction ceases, for he is now no longer fault trifling, or his excellences such as over bawithin their dominion.
lance it, should again choose him as still worthy The disability, which a vote can superinduce of their trust, the House cannot refuse him, for to expulsion, is no more than was included in his punishment has purged his fault, and the expulsion itself; it is only a declaration of the right of electors must not be violated. Commons, that they will permit no longer him This is plausible, but not cogent. whom they thus censure to sit with them in par- scheme of representation, which would make a liament; a declaration made by that right which specious appearance in a political romance, but they necessarily possess, of regulating their own cannot be brought into practice among us, who House, and of inflicting punishment on their see every day the towering head of speculation own delinquents.
bow down unwillingly to grovelling experience. They have therefore no other way to enforce Governments formed by chance, and gradually the sentence of incapacity, than that of adhering improved by such expedients as the successive to it. They cannot otherwise punish the can- discovery of their defects happened to suggest, didate so disqualified for offering himself, nor the are never to be tried by a regular theory. They electors for accepting him. But if he has any are fabrics of dissimilar materials raised by competitor, that competitor must prevail, and different architects upon different plans. if he has none, his election will be void ; for the must be content with them as they are; should right of the House to reject, annihilates with we attempt to mend their disproportions, we regard to the man so rejected the right of elect- might easily demolish, and difficultly rebuild ing
them. It has been urged, that the power of the House Laws are now made, and customs are estaterminates with their session ; since a prisoner blished; these are our rules, and by them we committed by the Speaker's warrant cannot be must be guided, detained during the recess. That power indeed It is incontrovertibly certain, that the Comceases with the session, which must operate by mons never intended to leave electors the liberty the agency of others, because, when they do not of returning them an expelled member, for they sit, they can employ no agent, having no longer always require one to be chosen in the room of any legal existence; but that which is exercised him that is expelled, and I see not with what ou themselves revives at their meeting, when the propriety a man can be re-chosen in his own rooin.
It is a
Expulsion, if this were its whole effect, might | could not be regained without express permisvery often be desirable. Sedition, or obscenity, sion of the same statute. inight be no greater crimes in the opinion of The right of being chosen again to a seat other electors, than in that of the freeholders of thus vacated, is not enjoyed by any general Middlesex ; and many a wretch, whoin his col-right, but required a special clause, and solicilengucs should expel, might come back perse- tous provision. cuted into fame, and provoke with harder front But what resemblance can imagination cona second expulsion.
ceive between one man vacating his seat by a Many of the representatives of the people mark of favour from the crown, and another can hardly be said to have been chosen at all. driven from it for sedition and obscenity? The Some by inheriting a borough, inherit a seat; acceptance of a place contaminates no character; and some sit by the favour of others, whom per- the crown that gives it, intends to give with it haps they may gratify by the act which pro- always dignity, sometimes authority. The voked the expulsion. Some are safe by their Commons, it is well known, think not worse of popularity, and some by their alliances. None themselves or others for their offices of profit; would dread expulsion, if this doctrine were re- yet profit implies temptation, and may expose a ceived, but those who bought their elections, representative to the suspicion of his constituand who would be obliged to buy them again at ents; though if they still think him worthy of a bigher price.
their confidence, they may again elect him. But as uncertainties are to be determined by Such is the consequence. When a man is things certain, and customs to be explained, dismissed by law to his constituents, with new where it is possible, by written law, the patriots trust and new dignity, they may, if they think have triumphed with a quotation from an act of him incorruptible, restore him to his seat ; what the 4th and 5th of Anne, which permits those can follow, therefore, but that when the House to be re-chosen, whose seats are vacated by the drives out a varlet with public infamy, he goes acceptance of a place of profit. This they away with the like permission to return ? wisely consider as an expulsion, and from the If infatuation be, as the proverb tells us, the permission, in this case, of a re-election, infer forerunner of destruction, how near must be the that every other expulsion leaves the delinquent ruin of a nation that can be incited against its entitled to the same indulgence. This is the governors by sophistry like this. I may be exparagraph :
cused if I catch the panic, and join my groans “ If any person, being chosen a member of the at this alarming crisis, with the general lamenHouse of Commons, shall accept of any office tation of weeping patriots. from the crown, during such time as he shall con- Another objection is, that the Commons, by tinue a member, his election shall be, and is pronouncing the sentence of disqualification, hereby declared to be, void, and a new writ make a law, and take upon themselves the shall issue for a new election, as if such person power of the whole legislature. Many quota80 accepting was naturally dead. Nevertheless, tions are then produced to prove that the House such person shall be capable of being again elected, of Commons can make no laws. as if his place had not become void as afore- Three Acts have been cited, disabling memsaid."
bers for different terms on different occasions ; How this favours the doctrine of re-admission and it is profoundly remarked, that if the Comby a second choice, I am not able to discover. mons could by their own privilege have made The statute of 30 Ch. II. bad enacted, “ That a disqualification, their jealousy of their privihe who should sit in the House of Commons, leges would never have admitted the concurrent without taking the oaths and subscribing the sanction of the other powers. test, should be disabled to sit in the House dur- I must for ever remind these puny controing that parliament, and a writ should issue for vertists, that those acts are laws of permanent the election of a new member in place of the obligation : that two of them are now in foree, member so disabled, as if such member had na- and that the other expired only when it had fulturally died.”
filled its end. Such laws the Commons cannot This last clause is apparently copied in the make; they could, perhaps, have determined for act of Anne, but with the common fate of imic themselves, that they would expel all who should
In the act of Charles, tbe political death not take the test, but they could leave no aucontinued during the parliament; in that of thority behind them, that should oblige the next Anne, it was hardly worth the while to kill the parliament to expel them. They could refuse man whom the next breath was to revive. It the South Sea directors, but they could not en is, however, apparent, that in the opinion of the tail the refusal. They can disqualify by vote, parliament, the dead-doing lines would have but not by law; they cannot know that the senkept him motionless, if he had not been reco- tence of disqualification pronounced to-day, may vered by a kind exception. A seat vacated, not become void to-morrow, by the dissolutisa of their own House. Yet while the same par- | suspect that these hungry intraders from the liament sits, the disqualification continues, un- North are now contriving to expel all the Engless the vote be rescinded, and while it so con- lish. We may then curse the hour in which it tinues, makes the votes, which freeholders may was determined, that expulsion and exclusion give to the interdicted candidate, useless and are the same. For who can guess what may be dead, since there cannot exist with respect to done when the Scots have the whole House to the same subject at the same time, an absolute themselves ? power to choose, and an absolute power to reject. Thus agreeable to custom and reason, not
In 1614, the attorney-general was voted inca- withstanding all objections, real or imaginary; pable of a seat in the House of Commons; and thus consistent with the practice of former times, the nation is triumphantly told, that though the and thus consequential to the original principles vote never was revoked, the attorney-general is of government, is that decision by which so now a member. He certainly may now be a much violence of discontent has been excited, member without revocation of the vote. A law which has been so dolorously bewailed, and so is of perpetual obligation, but a vote is nothing outrageously resented. when the voters are gone.
A law is a compact Let us, however, not be seduced to put too reciprocally made by the legislative powers, and much confidence in justice or in truth; they therefore not to be abrogated but by all the par- bare often been found inactive in their own deties. A vote is simply a resolution, which binds fence, and give more confidence than help to only him that is willing to be bound.
their friends and their advocates.
It may perI have thus punctiliously and minutely pur- haps be prudent to make one momentary consued this disquisition, because I suspect that cession to falsehood, by supposing the vote in these reasoners, whose business is to deceive Mr. Lutterel's favour to be wrong. others, have sometimes deceived themselves, and All wrong ought to be rectified. If Mr. I am willing to free them from their embarrass- Wilkes is deprived of a lawful seat, both he and ment, though I do not expect much gratitude his electors have reason to complain : but it will for my kindness.
not be easily found, why, among the innumerOther objections are yet remaining, for of able wrongs of which a great part of mankind political objections there cannot easily be an are hourly complaining, the whole care of the end. It has been observed, that vice is no proper public should be transferred to Mr. Wilkes and cause of expulsion, for if the worst man in the the freeholders of Middlesex, who might all House were always to be expelled, in time none sink into nonexistence, without any other effect, would be left. But no man is expelled for being than that there would be room made for a new worst, he is expelled for being enormously bad; rabble, and a new retailer of sedition and obhis conduct is compared, not with that of others, scenity. The cause of our country would suffer but with the rule of action.
little; the rabble, whencesoever they come, will The punishment of expulsion being in its own be always patriots, and always supporters of the nature uncertain, may be too great or too little | Bill of Rights. for the fault.
The House of Commons decides the disputes This must be the case of many punishments. arising from elections. Was it ever supposed, Forfeiture of chattels is nothing to him that has that in all cases their decisions were right? no possessions. Exile itself may be accidentally Every man whose lawful election is defeated, is a good : and indeed any punishment less than equally wronged with Mr. Wilkes, and his condeath is very different to different men.
stituents feel their disappointment with no less But if this precedent be admitted and esta- anguish than the freeholders of Middlesex. blished, no man can hereafter be sure that he These decisions have often been apparently parshall be represented by him whom he would tial, and sometimes tyrannically oppressive. A choose. One half of the House may meet early | majority has been given to a favourite candidate, in the morning, and snatch an opportunity to by expunging votes which had always been alexpel the other, and the greater part of the na- lowed, and which therefore had the authority by tion may, by this stratagem, be without its law which all votes are given, that of custom uninful representatives.
terrupted. When the Commons determine who He that sees all this, sees very far. But I shall be constituents, they may, with some procan tell him of greater evils yet behind. There priety, be said to make law, because those deis one possibility of wickedness, which, at this terminations have hitherto, for the sake of quiet, alarming crisis, bas not yet been mentioned. been adopted by succeeding parliamects. A Every one knows the malice, the subtilty, the vote, therefore, of the House, when it operates industry, the vigilance, and the greediness of as a law, is to individuals a law only temporary, the Scots. The Scotch members are about the but to communities perpetual. number sufficient to make a house. I propose Yet though all this has been done, and though it to the consideration of the supporters of the at every new parliament much of this is expected Bill of Rights, whether there is not reason to to be done again, it has never produced in any