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the ministry, having no grievance of greater magnitude, endeavoured to swell this decision into bulk, and distort it into deformity, and then held it out to terrify the nation.
Every artifice of sedition has been since practised, to awaken discontent and inflame indignation. The papers of every day have been filled with exhortations and menaces of faction. The madness has spread through all ranks and through both sexes; women and children have clamoured for Mr. Wilkes, honest simplicity has been cheated into fury, and only the wise have escaped infection.
The greater part may justly be suspected of not believing their own position, and with them it is not necessary to dispute. They cannot be convinced who are convinced already, and it is well known that they will not be ashamed.
The decision, however, by which the smaller num. ber of votes was preferred to the greater, has perplexed the minds of some whose opinions it were indecent to despise, and who by their integrity well deserve to have their doubts appeased.
. * Every diffuse and complicated question may be examined by different methods, upon different principles, and that truth, which is easily found by one investigator, may be missed by another, equally honest and equally diligent.
Those who inquire, whether a smaller number of legal votes can elect a representative in opposition to a greater, must receive from every tongue the same answer.
The question, therefore, must be, whether a smaller number of legal votes, shall not prevail against a greater number of votes not legal ? ...
It must be considered, that those votes only are legal which are legally given, and that those only are legally given, which are given for a legal candidate.
It remains then to be discussed, whether a man expelled can be so disqualified by a vote of the house, as that he shall be no longer eligible by lawful electors ?
Here we must again recur, not to positive institutions, but to the unwritten law of social nature, to the great and pregnant principle of political necessity. All government supposes subjects, all authority implies obedience. To suppose in one the right to command what another has the right to refuse, is absurd and contradictory. A state so constituted must rest 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 sentence which cannot be executed can have no power to warn or to reform. If the commons have only the power of dismissing for a few days the man whom his constituents can immediately send back, if they can expel but cannot exclude, they have nothing more than nominal authority, to which perhaps obedience never can be paid.
The representatives of our ancestors had an opinion very different: they fined and imprisoned their members; on great provocation they disabled them for ever; and this power of pronouncing perpetual disability is maintained by Selden himself.
These claims seem to have been made and allowed, when the constitution of our government had not yet been sufficiently studied. Such powers are not legal, because they are not necessary; and of that power which only necessity justifies, no more is to be admitted than necessity obtrudes.
The commons cannot make laws, they can only pass resolutions, which, like all resolutions, are of force only to those that make them, and to those only while they are willing to observe them.
The vote of the house of commons has therefore only so far the force of a law, as that force is necessary to preserve the vote from losing its efficacy, it must begin by operating upon themselves, and extends its influence to others, only by consequences arising from the first intention. He that starts game on his own manor, may pursue it into another.
They can properly make laws only for themselves : a member, while he keeps his seat, is subject to these laws; but when he is expelled, the jurisdiction ceases, for he is now no longer within their dominion.
The disability, which a vote can superinduce to expulsion, is no more than was included in expulsion itself; it is only a declaration of the commons, that they will permit no longer him whom they thus censure to sit with them in parliament; a declaration made by that right which they necessarily possess, of regulating their own house, and of inflicting punishment on their own delinquents.
They have therefore no other way to enforce the sentence of incapacity, than that of adhering to it. They cannot otherwise punish the candidate so disqualified for offering himself, nor the electors for accepting him. But if he has any competitor, that competitor must preyail, and if he has none, his election will be void ; for the right of the house to reject, an. nihilates with regard to the man so rejected the right of electing.
It has been urged, that the power of the house terminates with their session ; since a prisoner committed by the speaker's warrant cannot be detaincd du
ting the recess. That power indeed ceases with the session, which must operate by the agency of others, because, when they do not sit, they can employ no agent, having no longer any legal existence; but tható, which is exercised on themselves revives at their meet. ing when the subject of that power still subsists. They can in the next session refuse to re-admit him, whom in the former session they expelled...
That expulsion inferred exclusion in the present case, must be, I think, easily admitted. The expulsion and the writ issued for a new election were in the same session, and since the house is by the rule of parliament bound for the session by a vote once pass. ed, the expelled member cannot be admitted. He that cannot be admitted, cannot be elected, and the votes. given to a man ineligible being given in vain, the highest number for an eligible candidate becomes a majority.
To these conclusions, as to most moral, and to all political positions, many objections may be made. The perpetual subject of political disquisition is not absolute, but comparative good. Of two systems of government, or two laws relating to the same subject, neither will ever be such as theoretical nicety would desire, and therefore neither can easily force its way against prejudice and obstinacy; each will have its excellencies and defects, and every man, with a little help from pride, may think his own the best.
It seems to be the opinion of many, that expulsion is only a dismission of the representative to his constituents, with such a testimony against him as his. sentence may comprise ; and that if his constituents notwithstanding the censure of the house, thinking his case hard, his fault trifing, or his excellencies
such as overbalance it, should again choose him as still worthy of their trust, the house cannot refuse - him, for his punishment has purged his fault, and the right of electors must not be violated.
This is plausible, but not cogent. It is a scheme of. representation, which would make a specious appearance in a political romance, but cannot be brought into practice among us, who see every day the towering head of speculation bow down unwillingly to groveling experience.
Governments formed by chance, and gradually improved by such expedients, as the successive discovery of their defects happened to suggest, are never to be tried by a regular theory. They are fabrics of dissimilar materials, raised by different architects, upon different plans. We must be content with them as they are ; should we attempt to mend their disproportions, we might easily demolish, and difficultly rebuild them.
Laws are now made and customs are established; these are our rules, and by them we must be guided.
It is uncontrovertibly certain, that the commons never intended to leave electors the liberty of returning them an expelled member, for they always require one to be chosen in the room of him that is expelled, and I see not with what propriety a man can be rechosen in his own room.
Expulsion, if this were its whole effect, might very often be desirable. Sedition, or obscenity, might be no greater crimes in the opinion of other electors, than in that of the freeholders of Middlesex ; and many a wretch, whom his colleagues should expel, might come back persecuted into fame, and provoke with harder front a second expulsion.