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judged incapable of being elected a mem- do derive their authority, and can have no ber to serve in this present parliament.” other but that which is given to them by In the first formation of this government, those that have the original right to chuse in the original settlement of our constitu- them.” The greatest law authorities, both tion, the people expressly reserved to ancient and modern, agree in the opinion, themselves a very considerable part of the that every subject of the realm, not dislegislative power, which they consented to qualified by law, is eligible of common share jointly with a King and House of right. Lord Coke, lord chief justice Lords. From the great population of our Holt, and Mr. Blackstone, are the only island this right could not be claimed and authorities which I shall cite. I regard exercised personally, and therefore the not, Sir, the slavish, courtly doctrines promany were compelled to delegate that pagated by lawyers in either House of Parpower to a few, who thus were chosen liament, as to the rights of the subject, no their deputies and agents only, their re- more than I do as to what they pronounce presentatives. It follows directly from high treason and rebellion. Such docthe very idea of a choice, that such choice trines are delivered here only to be remust be free and uncontroulęd, admitting ported elsewhere. These men have their of no restrictions, but the law of the land, reward. But the venal tongue of a prosto which the King and the Lords are titute advocate or judge is best answered equally subject, and what must arise from by the wise and sober pen of the same the nature of the trust. A peer of parlia- man, when in a former cool moment, unment, for instance, cannot be elected a heated by party rage or faction, after the member of the House of Commons, be fullest deliberation, he gave to the nation, cause he already forms a part of another to the present age, and to posterity, a fair branch of the same legislative body. A and impartial detail of their undoubted lunatic has a natural incapacity. Other rights, and when he laid down in clear and instances might be mentioned, but these express terms the plain law of the land. two are sufficient. The freedom of elec- Lord Coke says, “'He which is eligible of tion is
, then, the common right of the common right, cannot be disabled by the people of England, their fair and just share said ordinance in parliament, unless it had of power; and I hold it to be the most been by act of parliament.” Lord chief glorious inheritance of every subject of justice Holt declares, “ the election of this realm, the noblest, and I trust, the knights belongs to the freeholders of counmost solid part of that beautiful fabric, the ties; and it is an original right, vested in English constitution. Here I might leaa, and inseparable from the freehold, and can Sir, on the most respectable authorities no more be severed from their freehold, which can be cited, the supreme judica-than their freehold itself can be taken ture of this kingdom, and the venerable away.” Mr. Justice Blackstone, in the judges of former ages as well as of our first book of his Commentaries on the own times. I met them accidentally this Laws of England, has the following words, morning in the course of my reading, as “ subject to these restrictions and disquaan old friend of Wilkes and Liberty, now lifications, every subject of the realm is alas ! lost to every sense of duty to his eligible of common right.” This common country, (the duke of Grafton) frequent- right of the subject, Sir, was violated by ly tels another great assembly, that he the majority of the last House of Comaccidentally meets in this manner all his mons; and I affirm, that they, and in partiresome quotations. The House of Peers, ticular, if I am rightly informed, the noSir, in the case of Ashby and White in ble lord with the blue ribband, committed 1704, determined, “ a man has a right to by that act high treason against Magna his freehold by the common law; and the Charta. This House only, without the law having annexed his right of voting to interference of the other parts of the legishis freehold, it is of the nature of his free- lature, took upon them to make the law. hold, and must depend upon it.” On the They adjudged me incapable of being same occasion likewise they declared, elected a member to serve in that parliait is absurd to say, the electors' right of ment, although I was qualified by the law chusing is founded
upon the law and cus of the land, and the noble lord declared in tom of parliament. It is an original right, this House, “ if any other candidate had part of the constitution of the kingdom, as only six votes, he would seat him for Midmuch as a parliament is, and from whence dlesex.” I repeat it, Sir, this violence the
persons elected to serve in parliament was a direct infringement of Magna Char. ta, high treason against the sacred charter sion of parliament, committed a prisoner of our liberties. The words, to which I to the Tower of London, and expelled allude, ought always to be written in let- this House, for an high breach of trust in ters of gold : “ No freeman shall be dis- the execution of his office, and notorious seized of his freehold, or liberties, or free corruption, when Secretary at War, was customs, unless by the lawful judgment of and is incapable of being elected a member his peers, or, by the law of the land.” By to serve in the present parliament." the conduct of that majority, and of the Now, Sir, I must observe, that even noble lord, they assumed to themselves the that House of Commons, at an æra so hospower of making the law, and at the same tile to the liberties not only of England moment invaded the rights of the people, but of Europ:, did not venture to adjudge the King, and the Lords. The two last Mr. Walpole incapable of being elected a tamely acquiesced in the exercise of a member to serve in that parliament only power, which had been in a great instance because he was expelled; but in the body fatal to their predecessors, had put an end of the resolution itself they added another to their very existence; but the people, reason, which would be trifling, if the Sir, and in particular the spirited freehold former was sufficient and adequate to the ers of this county, whose ruling passion point, the high breach of trust in the exeis the love of liberty, have not yet forgiven cution of his office, and notorious corrupthe attack on their rights. So dangerous tion, when Secretary at War. As trusa precedent of usurped power, which tees for the nation, they assigned a public may in future times be cited and adopted cause, which must interest every member in practice by a despotic minister of the of the community. In the case of Mr. crown, ought to be expunged from the Wilkes, the last House of Commons deJournals of this House.
clared, “ that John Wilkes, esq. having I have heard and read much of prece- been, in this session of parliament, expelled dents to justify the proceedings of the last this House, was and is incapable of being House of Commons. I own, Sir, I value elected a member to serve in this present very little the doctrine of precedents. parliament." The having been expelled, There is scarcely any new villainy under whether justly or unjustly, is the only rea
A precedent can never justify son which they gave to the world. 1 any action in itself wicked, a robbery for shall not yet, Sír, dismiss the case of Mr. instance on the heaths of Hounslow or Walpole. It will prove
another propoBagshot, of which there are innumerable sition maintained by me: it will shew the precedents. The basest actions may be injustice of the late House of Commons in justified by precedents drawn from bad seating Mr. Luttrell, as representative for times and bad men. The sole question is, the county of Middlesex. The fact was, whether this power is not a direct usurpa- that the House in queen Anne's time, tion on the rights of the people? If that is having expelled Mr. Walpole, ordered proved, I care not how long the usurpa- immediately the issuing of a new writ. At tion has continued, how often been prac- the subsequent election Mr. Walpole was tised. It is high time to put an end to it. again returned. A Mr. Taylor, who had It was the case of General Warrants. a minority of votes, petitioned; but the One precedent however, the most insisted election was vacated.' Had the doctrine upon, I must take notice of, because it is propagated by the late majority, and by said fully to come up to the point, but, in the noble lord with the blue ribband, been my opinion, in almost every part it proves just and founded, Mr. Taylor ought to the contrary of what it has been brought have been the sitting member, the House to support. I mean the remarkable case should have resolved that he ought to have of Mr. Walpole in 1711, a period, in which been returned, and that the grossest in. the rankest Tory principles were counte- justice had actually been committed nanced more than in any other of our his against him. But even that parliament, tory prior to 1760. The case, Sir, has whose memory the nation execrates, stop: been so partially quoted, even by a person ped short in their career of iniquity, and (Mr. Jeremiah Dyson) whose sole merit did not proceed to such enormous wickedhere was an assumed accuracy, which he It was reserved for the present æra, never possessed, that I shall desire it may when shame has lost its blush. Mr. Lut. be read to the House from the Journals": trell was for some years permitted to sit [The Clerk read,] “ Resolved, that Ro- here as representing the county of Midbert Walpole, esq. having been, this ses- dlesex, although a great majority of the
freeholders abhorred and reprobated the would they, by any means, have chosen idea of his representing them, on every to be represented by the said Henry public occasion declared it, and in their Lawes Luttrell, esq. Your petitioners Petition to this House gave the record of therefore apprehend he cannot sit as the it under their hands to all posterity. representative of the said county in par
Sir, when the strong, unanswerable rea- liament, without a manifest infringement sons, on which any doctrine is founded, of the rights and privileges of the freebear me out, I care little about precedents. holders thereof.” I recollect however another instance in This House, Sir, is created by the more auspicious times, when a glorious people, as the other is by, the king. monarch defended the constitution, which | What right can the majority have to say he had restored. It directly meets the to any county, city, or borough, you shall objection so much relied upon; “ that not have a particular person to be your expulsion necessarily implies incapacity.” representative, only because he is obIt is the last which I shall desire the poxious to us, when he is qualified by Clerk to read. I wish him to turn to the law? Every county, city, or borough, has Journals of Feb. 20, 1698. [The Clerk an equal right with all other counties, read,] “ Resolved, that Richard Wool- cities, and boroughs, to its own choice, to laston, esq., being a member of this House its own distinct deputy in the great counof Commons, and having since been con- cil of the nation. Each is free and indecerned, and acted, as a receiver of the du- pendent, invested with precisely the same ties upon houses, as also upon births, powers. marriages, and burials, contrary to the I do not mean, Sir, now to enter into Act, made in the fifth and sixth years of the argument, whether it may not be fit his majesty's reign, for granting several to give this House the power of expulsion duties upon salt, beer, ale, and
other li- in the first instance, for very flagrant and quors, be expelled this House.”
infamous crimes, either committed, or of Now, Sir, I defy all the subtlety of the which the member may be convicted, submost expert court lawyer among us, all sequent to his election. The sending the the sophistry of the bar, to reconcile member back to his constituents on such Mr. Woollaston's case with the favourite ground might be considered as an appeal court tenet, “ that expulsion necessarily to the people. If however his constituents implies incapacity. The fact is ascer- should differ in opinion from the majority tained, and indeed admitted, that a of this House, if they should think him fit new writ did issue for the borough of to be re-elected, he ought to be admitted, Whitchurch in Hampshire, and that Mr. because he claims his seat under the same Woollaston was re-elected, and sat in the authority by which every member holds same parliament. Incapacity therefore the privilege of sitting and voting here, a in the same parliament does not neces- delegation from the people, their free sarily follow expulsion.
choice. The first appeal to the constiI am ready to admit, that, where a clear tuents might in many cases appear just legal incapacity exists, all votes given to and reasonable. The appeal certainly lies a person incapacitated are thrown away, to them, for they are the fountain of this if they are knowingly given to him. But, power. We exercise their right. By Sir, I beg leave to assert, that this was their representation only we are a House not the case in the Middlesex business. I of Parliament. They have the right of Mr. Wilkes was qualified by the law of chusing for themselves, not a majority the land : and the freeholders, who per- here for them. fectly understood the clear point of law, Sir, I will venture to assert, that the as well as their own rights, expressly de- law of the land, by which all courts of ju. clared in the petition presented on the dicature are equally bound, is overturned 29th of April 1769 to the House, “ Your by the power lately exercised by a mapetitioners beg leave to represent to this jority of a House of Commons. The honourable House, that the said Henry right of election by law is vested in the Lawes Luttrell had not the majority of freehold. It is not placed in you, but in legal votes at the said election, nor did other hands, in those of the freeholders, the majority of the freeholders, when they or the constituents. Your predecessors voted for John Wilkes, esquire, mean not only robbed a particular county of its thereby to throw away their votes, or to noblest privileges, but they changed the wave their right of representation ; nor constitution of a House of Commons. The freeholders of this county and the liberty and the constitution. It went with nation abhorred the proceeding, and poured wonderful expedition through all the forms their execrations on the treacherous au- of this House, for it was known to be a thors. From us not only they, but the measure previously adopted in the cabinet, law and constitution, now expect a full whose members have through the present reparation of the injury, by rescinding reign frequently dared to deliberate on the Resolution.
the invasion of the dearest rights of their This usurpation, if acquiesced under, country. would be attended with the most alarm- Upon all these considerations, Sir, in ing consequences. If you can reject order to quiet the minds of the people, those disagreeable to a majority, and ex- to restore our violated constitution to its pel whom you please, the House of Com- original purity, to vindicate the injured mons will be self-created and self-existing rights of this county in particular, and of You may expel till you approve, and thus all the electors of this kingdom, and that in effect you nominate. The original idea not the least trace of the violence and inof this House being the representative of justice of the last parliament in this imthe Commons of the realm will be lost. portant cause may disgrace our records, I The consequences of such a principle are humbly move, “ That the Resolution of dangerous in the extreme. À more forci- this House of the 17th of February 1769, ble engine of despotism cannot be put that John Wilkes, esq., having been in into the hands of a minister. I wish gen- • this session of parliament, expelled this tlemen would attend to the plain conse- House, was, and is, incapable of sitting in quences of such proceedings, and consider the present parliament,' be expunged how they may be brought home to them- from the Journals of this House, as being selves. A member hated, or dreaded, by subversive of the rights of the whole body the minister, is accused of a crime; for of electors of this kingdom.” instance, of being the author of what he Mr. Serjeant Glynn seconded the mothinks a libel. I select this case, as being tion. He went into the whole of Mr. the crime the least likely to be committed Wilkes's case. When he came to the proby any one gentleman of the present ma- ceedings in parliament, he condemned them jority of this House. No proof whatever in very strong terms; asserted positively, is given on oath before you, because you that the resolutions now under consideracannot administer an oath, except in the tion were contrary to the law of the land ; cases provided for by act of parliament. destructive of the constitutional rights You determine the fact however, and of the people; and the most violent, unthus the minister begins with invading the just, and ill-founded, that ever disgraced rights of juries. Before any trial, he gets this country, or any free assembly. He the
paper voted a libel, and the member averred this, as a lawyer, and a member he wishes expelled is voted to be the au- of that House; and concluded with callthor, which is a fact this House is not ing upon the justice of the House, to competent to try and determine. Expulo comply with the motion, and rescind those sion means always, as it is pretended, in- infamous resolutions. [He spoke in great capacity: The member is accordingly pain, being at that time afficted with a adjudged incapable. He cannot in con- severe fit of the gout.] sequence be re-elected, and thus is totally Colonel Onslow. The learned serjeant excluded from parliament. By such ma- promised us to confine himself to the prenæuvres a minister may garble a House sent question ; but the warmth of his of Commons till not a single enemy of his friendship has carried him on into the own, or friend of his country, is left here, whole of Mr. Wilkes's case. I hope, and the representation of the people in a therefore, the House will grant me the great degree annihilated. Corruption had same indulgence, if my warmth and zeal not lent despotism wings to fly so high in for the honour and dignity of this House the reign of Charles 1, or the minister of and the public cause, should induce me to that day would have been contented with follow the learned serjeant in any point expelling Hampden, and the four other beyond the question before us. heroes, because they had immediately been proceed, I beg leave to recall to the me. adjudged incapable, and thereby incapa- mory of the House, that a question relacitated from thwarting in parliament the tive to the Middlesex election was an. arbitrary measures of a wicked court. nually moved by one of the most respeco My expulsion was an easy victory over table members of this House ; a gentle
man, Sir, great in his fortune, great in his , cessors held to be the law of parliament, abilities, and still greater from his credit that expulsion contained incapacity. This and character, both within and without has been always the law of parliament, even these walls: yet a question so moved, al- in times when the power of the people was ways passed unheeded by, under a silent highest. I shall now argue on the cases
of Mr. Woollaston and Mr. Walpole, and Sir, we are now sitting in a new par- shew that these cases do not serve the liament; we have many new and many learned serjeant's purpose on the present young men members in it. It is, there. | occasion. Mr. Woollaston held an office fore, become necessary to debate the which, by an act of parliament, rendered question before us; and, I hope, our him incapable of sitting in parliament: he young members will give the most serious lost his seat by it. Mr. Woollaston parted attention to this day's business, which is with his office; and common sense tells us, a great lecture on the power of the House when Mr. Woollaston parted with that ofof Commons, and the rights and privileges fice which created his incapacity, the inof the people. I hope the House will capacity ceased; he was eligible of course, pardon my insufficiency, and also my and had a right to serve in the then pareagerness to exert myself on the present liament, which he did ; and though the occasion ; but when the honour and dig- word ' expelled' was used in Mr. Woolnity of this House is concerned, and when laston's case, yet all candid persons allow it I look at that chair, which has done my was nothing more than an inaccuracy. Let family so much honour, by having had so the good sense of this precedent speak for many of my name to preside in it, I feel itself. It does not follow, that had Mr. myself called upon, I feel myself animated, Woollaston been expelled for writing an and will presume to debate after the obscene, impious, or traitorous libel, that learned serjeant. I hope I shall be ex- the House would have suffered him to sit cused, though I was not professionally in that parliament. As to the case of Mr. bred; I was bred a soldier, and though Walpole, surely nothing can be plainer my abilities are as short as my person, yet than this, that Mr. Walpole, by means of if, by taking thought, I could add a cubit a very spirited set of electors, endeavoured to them, I would willingly be a grenadier in vain to obtain a seat in that parliament, on the present occasion, where the neces- from which he was expelled. In that insary power, the honor and dignity of the stance the House resolved, “ That Ro. House of Commons are so strongly at- bert Walpole, esq. having been expelled, tacked.
was and is incapable of being elected a Sir, the question before us is, a motion member to serve in the present parlia. to expunge from our journals a resolution ment." And now, Sir, I beg leave to give of this House, which is as follows: “ Re- the House a curious anecdote, which came solved, That John Wilkes, esq. having from undoubted authority, but I am not at been, in this session of parliament, ex liberty to mention from whom. When pelled the House, was and is incapable of the House, after their declaration, rejected sitting in the present parliament." Sir, I | Mr. Walpole, on his return home, he said, will produce precedents to shew, that this that after what had happened, the House House, from 1580, has constantly exerted were a parcel of fools for not taking the that power; and will prove, from plain second person on the poll. And what reason, that it is necessary for the House shews still farther, that this was Mr. Wal. to have such a power. Sir, the old prece- pole's real opinion, is this, that he would dents run, in general, in words not to be not venture to make such another experimisconstrued : that the offender be ex- ment, but got his friend sir Charles Turner pelled this House, and be presently cut to be chosen in his stead, to fill his seat off
, and severed from the present parlia- and preserve his interest at Lynn. Add ment, or in some words full as strong. Ito all this, that when Mr. Walpole came desire to read the precedents. [llere into power, with popularity at his heels, colonel Onslow read several precedents, he never even attempted to subvert or beginning with the case of Arthur Hall, alter that power of the House of Comesq. which declared the member expelled, mons, which he had before so strongly to be cut off and severed from the present contended had unjustly deprived him of parliament.]
his seat in parliament, and his electors of Sir, these precedents fully and mani- their rights and privileges. festly shew what our ancestors and prede- I think I have sufficiently shown, that (VOL. XVIII.)
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