are cognizable by other courts. But they, who are the only judges of their own rights, have exerted the power of expulfion on other occafions, and when wickedness arrived at a certain magnitude, have confidered an offence against fociety as an offence against the Houfe.

They have therefore divefted notorious delinquents of their legislative character, and delivered them up to fhame or punishment, naked and unprotected, that they might not contaminate the dignity of parliament.

It is allowed that a man attainted of felony cannot fit in Parliament, and the Commons probably judged, that not being bound to the forms of law, they might treat these as felons, whofe 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 eafily be distinguished, ought to be expelled.

The first laws had no law to enforce them, the first authority was conftituted 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 occafional practice; a power which neceffity made juft, and precedents have made legal.

It will occur that authority thus uncontrolable may, in times of heat and conteft, be oppreffively and injuriously exerted, and that he who fuffers injustice, is without redress, however innocent, however miferable.

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 redreffed, if they are controlled they are no longer legislative.

If the poffibility of abuse be an argument against authority, no authority ever can be eftablished; if the actual abuse destroys its legality, there is no legal government now in the world.

This power, which the Commons have fo long exercised, they ventured to ufe once more against Mr. Wilkes, and on the 3d of February, 1769, expelled him the House, for having printed and publifbed a feditious libel, and three obscene and impious

libels.

If these imputations were juft, the expulfion was furely seasonable, and that they were juft, the House had reason to determine, as he had confeffed himfelf, at the bar, the author of the libel which they term feditious, 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 iffued for the election of a knight for Middlesex, in the room of John Wilkes Efq; expelled the House," his friends on the fixteenth of February chofe him again.

On the 17th, it was refolved, that John Wilkes, Efq; baving been in this feffion of parliament expelled the Houfe, was, and is, incapable of being elected a member to ferve in this prefent parliament.

As there was no other candidate, it was refolved, at the fame time, that the election of the fixteenth was a void election.

The

The freeholders ftill continued to think that no other man was fit to represent them, and on the fixteenth of March elected him once more. Their refolution was now fo well known, that no opponent ventured to appear.

The Commons began to find, that power without materials for operation can produce no effect. They might make the election void for ever, but if no other candidate could be found, their determination could only be negative. They, however, made void the last election, and ordered a new writ.

On the thirteenth of April was a new election, at which Mr. Lutterel, and others, offered themselves candidates. Every method of intimidation was used, and fome acts of violence were done to hinder Mr. Lutterel from appearing. He was not deterred, and the poll was taken, which exhibited for

Mr. Wilkes,
Mr. Lutterel,

1143

296.

The fheriff returned Mr. Wilkes; but the House, on April the fifteenth, determined that Mr. Lutterel was lawfully elected.

From this day begun the clamour, which has continued till now. Those who had undertaken to oppose the ministry, having no grievance of greater magnitude, endeavoured to fwell this decifion into bulk, and distort it into deformity, and then held it out to terrify the nation.

Every artifice of fedition has been fince practifed to awaken discontent and inflame indignation. The papers of every day have been filled with exhortations and menaces of faction. The madness has

6

fpread

fpread through all ranks and through both fexes; women and children have clamoured for Mr. Wilkes, honeft fimplicity has been cheated into fury, and only the wife have escaped infection.

The greater part may juftly be fufpected of not believing their own pofition, and with them it is not neceffary to difpute. They cannot be convinced who are convinced already, and it is well known that they will not be afhamed.

The decifion, however, by which the fmaller number of votes was preferred to the greater, has perplexed the minds of fome, whofe opinions it were indecent to despise, and who by their integrity well deferve to have their doubts appeased.

Every diffuse and complicated question may be examined by different methods, upon different principles; and that truth, which is eafily found by one inveftigator, may be miffed by another, equally honeft and equally diligent.

Thofe who inquire, whether a fmaller number of legal votes can elect a reprefentative in oppofition to a greater, muft receive from every tongue the fame answer.

The question, therefore, must be, whether a fmaller number of legal votes, fhall not prevail. against a greater number of votes not legal?

It must be confidered, that thofe votes only are legal which are legally given, and that thofe only are legally given, which are given for a legal candidate.

It remains then to be difcuffed, whether a man expelled, can be. fo difqualified by a vote of the

House,

House, as that he fhall be no longer eligible by lawful electors?

Here we must again recur, not to pofitive inftitutions, but to the unwritten law of focial nature, to the great and pregnant principle of political neceffity. All government fuppofes fubjects, all authority implies obedience. To fuppofe in one the right to command what another has the right to refuse, is abfurd and contradictory. A ftate fo constituted must reft for ever in motionless equipoise, with equal attractions of contrary tendency, with equal weights of power balancing each other.

Laws which cannot be enforced, can neither prevent nor rectify disorders. A fentence which cannot be executed can have no power to warn or to reform. If the Commons have only the power of difmiffing for a few days the man whom his conftituents can immediately fend back, if they can expel but cannot exclude, they have nothing more than nominal authority, to which perhaps obedience never may be paid.

The reprefentatives of our ancestors had an opinion very different: they fined and imprisoned their members; on great provocation they difabled them for ever; and this power of pronouncing perpetual difability is maintained by Selden himself.

These claims feem to have been made and allowed, when the conftitution of our government had not yet been fufficiently studied. Such powers are not legal, because they are not neceffary; and of that power which only neceffity juftifies, no more is to be admitted than necessity obtrudes.

The