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ta, high treason against the sacred charter | sion of parliament, committed a prisoner

of our liberties. The words, to which I allude, ought always to be written in letters of gold: "No freeman shall be disseized of his freehold, or liberties, or free customs, unless by the lawful judgment of his peers, or, by the law of the land." By the conduct of that majority, and of the noble lord, they assumed to themselves the power of making the law, and at the same moment invaded the rights of the people, the King, and the Lords. The two last tamely acquiesced in the exercise of a power, which had been in a great instance fatal to their predecessors, had put an end to their very existence; but the people, Sir, and in particular the spirited freehold. ers of this county, whose ruling passion is the love of liberty, have not yet forgiven the attack on their rights. So dangerous a precedent of usurped power, which may in future times be cited and adopted in practice by a despotic minister of the crown, ought to be expunged from the Journals of this House.

I have heard and read much of precedents to justify the proceedings of the last House of Commons. I own, Sir, I value very little the doctrine of precedents. There is scarcely any new villainy under the sun. A precedent can never justify any action in itself wicked, a robbery for instance on the heaths of Hounslow or Bagshot, of which there are innumerable precedents. The basest actions may be justified by precedents drawn from bad times and bad men. The sole question is, whether this power is not a direct usurpation on the rights of the people? If that is proved, I care not how long the usurpation has continued, how often been practised. It is high time to put an end to it. It was the case of General Warrants. One precedent however, the most insisted upon, I must take notice of, because it is said fully to come up to the point, but, in my opinion, in almost every part it proves the contrary of what it has been brought to support. I mean the remarkable case of Mr. Walpole in 1711, a period, in which the rankest Tory principles were countenanced more than in any other of our history prior to 1760. The case, Sir, has been so partially quoted, even by a person (Mr. Jeremiah Dyson) whose sole merit here was an assumed accuracy, which he never possessed, that I shall desire it may be read to the House from the Journals: [The Clerk read,]" Resolved, that Robert Walpole, esq. having been, this ses

to the Tower of London, and expelled this House, for an high breach of trust in the execution of his office, and notorious corruption, when Secretary at War, was and is incapable of being elected a member to serve in the present parliament."

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Now, Sir, I must observe, that even that House of Commons, at an æra so hostile to the liberties not only of England but of Europ, did not venture to adjudge Mr. Walpole incapable of being elected a member to serve in that parliament only because he was expelled; but in the body of the resolution itself they added another reason, which would be trifling, if the former was sufficient and adequate to the point, the high breach of trust in the execution of his office, and notorious corruption, when Secretary at War. As trustees for the nation, they assigned a public cause, which must interest every member of the community. In the case of Mr. Wilkes, the last House of Commons declared, "that John Wilkes, esq. having been, in this session of parliament, expelled this House, was and is incapable of being elected a member to serve in this present parliament." The having been expelled, whether justly or unjustly, is the only reason which they gave to the world. shall not yet, Sir, dismiss the case of Mr. Walpole. It will prove another proposition maintained by me: it will shew the injustice of the late House of Commons in seating Mr. Luttrell, as representative for the county of Middlesex. The fact was, that the House in queen Anne's time, having expelled Mr. Walpole, ordered immediately the issuing of a new writ. At the subsequent election Mr. Walpole was again returned. A Mr. Taylor, who had a minority of votes, petitioned; but the election was vacated. Had the doctrine propagated by the late majority, and by the noble lord with the blue ribband, been just and founded, Mr. Taylor ought to have been the sitting member, the House should have resolved that he ought to have been returned, and that the grossest injustice had actually been committed against him. But even that parliament, whose memory the nation execrates, stopped short in their career of iniquity, and did not proceed to such enormous wickedness. It was reserved for the present æra, when shame has lost its blush. Mr. Luttrell was for some years permitted to sit here as representing the county of Middlesex, although a great majority of the

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freeholders abhorred and reprobated the would they, by any means, have chosen idea of his representing them, on every public occasion declared it, and in their Petition to this House gave the record of it under their hands to all posterity.

Sir, when the strong, unanswerable reasons, on which any doctrine is founded, bear me out, I care little about precedents. I recollect however another instance in more auspicious times, when a glorious monarch defended the constitution, which he had restored. It directly meets the objection so much relied upon; "that expulsion necessarily implies incapacity." It is the last which I shall desire the Clerk to read. I wish him to turn to the Journals of Feb. 20, 1698. [The Clerk read,] "Resolved, that Richard Woollaston, esq., being a member of this House of Commons, and having since been concerned, and acted, as a receiver of the du2 ties upon houses, as also upon births, marriages, and burials, contrary to the Act, made in the fifth and sixth years of his majesty's reign, for granting several duties upon salt, beer, ale, and other liquors, be expelled this House."

Now, Sir, I defy all the subtlety of the most expert court lawyer among us, all the sophistry of the bar, to reconcile Mr. Woollaston's case with the favourite court tenet," that expulsion necessarily implies incapacity." The fact is ascertained, and indeed admitted, that a new writ did issue for the borough of Whitchurch in Hampshire, and that Mr. Woollaston was re-elected, and sat in the same parliament. Incapacity therefore in the same parliament does not necessarily follow expulsion.

I am ready to admit, that, where a clear legal incapacity exists, all votes given to a person incapacitated are thrown away, if they are knowingly given to him. But, Sir, I beg leave to assert, that this was not the case in the Middlesex business. Mr. Wilkes was qualified by the law of the land and the freeholders, who perfectly understood the clear point of law, as well as their own rights, expressly declared in the petition presented on the 29th of April 1769 to the House, "Your petitioners beg leave to represent to this honourable House, that the said Henry Lawes Luttrell had not the majority of legal votes at the said election, nor did the majority of the freeholders, when they voted for John Wilkes, esquire, mean thereby to throw away their votes, or to wave their right of representation; nor

to be represented by the said Henry
Lawes Luttrell, esq.
Your petitioners
therefore apprehend he cannot sit as the
representative of the said county in par-
liament, without a manifest infringement
of the rights and privileges of the free-
holders thereof."

This House, Sir, is created by the people, as the other is by the king. What right can the majority have to say to any county, city, or borough, you shall not have a particular person to be your representative, only because he is obnoxious to us, when he is qualified by law? Every county, city, or borough, has an equal right with all other counties, cities, and boroughs, to its own choice, to its own distinct deputy in the great council of the nation. Each is free and independent, invested with precisely the same powers.

I do not mean, Sir, now to enter into the argument, whether it may not be fit to give this House the power of expulsion in the first instance, for very flagrant and infamous crimes, either committed, or of which the member may be convicted, subsequent to his election. The sending the member back to his constituents on such ground might be considered as an appeal to the people. If however his constituents. should differ in opinion from the majority of this House, if they should think him fit to be re-elected, he ought to be admitted, because he claims his seat under the same authority by which every member holds the privilege of sitting and voting here, a delegation from the people, their free choice. The first appeal to the constituents might in many cases appear just and reasonable. The appeal certainly lies to them, for they are the fountain of this power. We exercise their right. By their representation only we are a House of Parliament. They have the right of chusing for themselves, not a majority here for them.

Sir, I will venture to assert, that the law of the land, by which all courts of ju dicature are equally bound, is overturned by the power lately exercised by a majority of a House of Commons. The right of election by law is vested in the freehold. It is not placed in you, but in other hands, in those of the freeholders, or the constituents. Your predecessors not only robbed a particular county of its noblest privileges, but they changed the constitution of a House of Commons.

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The freeholders of this county and the nation abhorred the proceeding, and poured their execrations on the treacherous authors. From us not only they, but the law and constitution, now expect a full reparation of the injury, by rescinding the Resolution.

liberty and the constitution. It went with wonderful expedition through all the forms of this House, for it was known to be a measure previously adopted in the cabinet, whose members have through the present reign frequently dared to deliberate on the invasion of the dearest rights of their country.

Upon all these considerations, Sir, in order to quiet the minds of the people, to restore our violated constitution to its original purity, to vindicate the injured rights of this county in particular, and of all the electors of this kingdom, and that not the least trace of the violence and injustice of the last parliament in this important cause may disgrace our records, 1 humbly move, "That the Resolution of this House of the 17th of February 1769, that John Wilkes, esq., having been in this session of parliament, expelled this

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the present parliament,' be expunged from the Journals of this House, as being subversive of the rights of the whole body of electors of this kingdom."

This usurpation, if acquiesced under, would be attended with the most alarming consequences. If you can reject those disagreeable to a majority, and expel whom you please, the House of Commons will be self-created and self-existing. You may expel till you approve, and thus in effect you nominate. The original idea of this House being the representative of the Commons of the realm will be lost. The consequences of such a principle are dangerous in the extreme. A more forcible engine of despotism cannot be put into the hands of a minister. I wish gentlemen would attend to the plain conse-House, was, and is, incapable of sitting in quences of such proceedings, and consider how they may be brought home to themselves. A member hated, or dreaded, by the minister, is accused of a crime; for instance, of being the author of what he thinks a libel. I select this case, as being the crime the least likely to be committed by any one gentleman of the present majority of this House. No proof whatever is given on oath before you, because you cannot administer an oath, except in the cases provided for by act of parliament. You determine the fact however, and thus the minister begins with invading the rights of juries. Before any trial, he gets the paper voted a libel, and the member he wishes expelled is voted to be the author, which is a fact this House is not competent to try and determine. Expulsion means always, as it is pretended, incapacity. The member is accordingly adjudged incapable. He cannot in consequence be re-elected, and thus is totally excluded from parliament. By such manœuvres a minister may garble a House of Commons till not a single enemy of his own, or friend of his country, is left here, and the representation of the people in a great degree annihilated. Corruption had not lent despotism wings to fly so high in the reign of Charles 1, or the minister of that day would have been contented with expelling Hampden, and the four other heroes, because they had immediately been adjudged incapable, and thereby incapacitated from thwarting in parliament the arbitrary measures of a wicked court. My expulsion was an easy victory over

Mr. Serjeant Glynn seconded the mo tion. He went into the whole of Mr. Wilkes's case. When he came to the proceedings in parliament, he condemned them in very strong terms; asserted positively, that the resolutions now under consideration were contrary to the law of the land; destructive of the constitutional rights of the people; and the most violent, unjust, and ill-founded, that ever disgraced this country, or any free assembly. He averred this, as a lawyer, and a member of that House; and concluded with calling upon the justice of the House, to comply with the motion, and rescind those infamous resolutions. [He spoke in great pain, being at that time afflicted with a severe fit of the gout.]

Colonel Onslow. The learned serjeant promised us to confine himself to the present question; but the warmth of his friendship has carried him on into the whole of Mr. Wilkes's case. I hope, therefore, the House will grant me the same indulgence, if my warmth and zeal for the honour and dignity of this House and the public cause, should induce me to follow the learned serjeant in any point beyond the question before us. Before I proceed, I beg leave to recall to the me mory of the House, that a question rela tive to the Middlesex election was an nually moved by one of the most respec table members of this House; a gentle

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Sir, we are now sitting in a new parliament; we have many new and many young men members in it. It is, therefore, become necessary to debate the question before us; and, I hope, our young members will give the most serious attention to this day's business, which is a great lecture on the power of the House of Commons, and the rights and privileges of the people. I hope the House will pardon my insufficiency, and also my eagerness to exert myself on the present occasion; but when the honour and dignity of this House is concerned, and when I look at that chair, which has done my family so much honour, by having had so many of my name to preside in it, I feel myself called upon, I feel myself animated, and will presume to debate after the learned serjeant. I hope I shall be excused, though I was not professionally bred; I was bred a soldier, and though my abilities are as short as my person, yet if, by taking thought, I could add a cubit to them, I would willingly be a grenadier on the present occasion, where the necessary power, the honor and dignity of the House of Commons are so strongly attacked.

Sir, the question before us is, a motion to expunge from our journals a resolution of this House, which is as follows: "Resolved, That John Wilkes, esq. having been, in this session of parliament, expelled the House, was and is incapable of sitting in the present parliament." Sir, I will produce precedents to shew, that this House, from 1580, has constantly exerted that power; and will prove, from plain reason, that it is necessary for the House to have such a power. Sir, the old precedents run, in general, in words not to be misconstrued that the offender be expelled this House, and be presently cut off, and severed from the present parliament, or in some words full as strong. I desire to read the precedents. [Here colonel Onslow read several precedents, beginning with the case of Arthur Hall, esq. which declared the member expelled, to be cut off and severed from the present parliament.]

Sir, these precedents fully and manifestly shew what our ancestors and prede[VOL. XVIII.]

cessors held to be the law of parliament, that expulsion contained incapacity. This has been always the law of parliament, even in times when the power of the people was highest. I shall now argue on the cases of Mr. Woollaston and Mr. Walpole, and shew that these cases do not serve the learned serjeant's purpose on the present occasion. Mr. Woollaston held an office which, by an act of parliament, rendered him incapable of sitting in parliament: he lost his seat by it. Mr. Woollaston parted with his office; and common sense tells us, when Mr. Woollaston parted with that of fice which created his incapacity, the incapacity ceased; he was eligible of course, and had a right to serve in the then parliament, which he did; and though the word expelled' was used in Mr. Woollaston's case, yet all candid persons allow it was nothing more than an inaccuracy. Let the good sense of this precedent speak for itself. It does not follow, that had Mr. Woollaston been expelled for writing an obscene, impious, or traitorous libel, that

the House would have suffered him to sit in that parliament. As to the case of Mr. Walpole, surely nothing can be plainer than this, that Mr. Walpole, by means of a very spirited set of electors, endeavoured in vain to obtain a seat in that parliament, from which he was expelled. In that instance the House resolved, "That Robert Walpole, esq. having been expelled, was and is incapable of being elected a member to serve in the present parlia ment." And now, Sir, I beg leave to give the House a curious anecdote, which came from undoubted authority, but I am not at liberty to mention from whom. When the House, after their declaration, rejected Mr. Walpole, on his return home, he said, that after what had happened, the House were a parcel of fools for not taking the second person on the poll. And what shews still farther, that this was Mr. Walpole's real opinion, is this, that he would not venture to make such another experiment, but got his friend sir Charles Turner to be chosen in his stead, to fill his seat and preserve his interest at Lynn. Add to all this, that when Mr. Walpole came into power, with popularity at his heels, he never even attempted to subvert or alter that power of the House of Commons, which he had before so strongly contended had unjustly deprived him of his seat in parliament, and his electors of their rights and privileges.

I think I have sufficiently shown, that [2 B]

these modern precedents as little assist the learned serjeant in his arguments, as even the ancient ones. But as I forgot to do it sooner, I beg here to answer the learned serjeant, in calling the ancient precedents infamous' ones. Does the learned serjeant continue in the same mind? I find he does. With what grace, then, can the learned serjeant presume to hope the House will expunge the resolution in question, when he, in the same breath, tells us, that we leave behind, on your Journals, the most infamous precedents? Such precedents as, by his account, stare the privileges and rights of the people in the face, and may, at any future time, gape and devour them. Are we, then, as the present motion requires us to do, to rescind and expunge partially such reso lutions only as come ad hominem to Mr. Wilkes, and to his cause? Let the learned serjeant, in his robe of law and justice, (as he has gone into the whole of Mr. Wilkes's case) now declare, on what principles of law and justice he leaves Mr. Asgill, who was expelled this House for blasphemy, to be hung up a public spectacle to all eternity, and why his friend is to be cut down, and his fame buried, and sweetened by his mother earth, after his being exposed only for a few years. Yet this will be the case, should Mr. Wilkes, in this instance, triumph over the power and dignity of parliament. All, then, that this House did, will appear wrong, and all that the worthy magistrate did in those times, will, in a great measure, be justified.

I now proceed to shew why expulsion should imply an incapacity to serve in the parliament from whence the member is expelled. Sir, this is a necessary power, otherwise it would be possible for a few, and even one member, to traduce you, Mr. Speaker, or the House, ad libitum, without our being able effectually to get rid of him, and so put a stop to all business. Sir, there are men who are hardy enough to attempt this-I hope not within these walls; but such men could easily be found, had not the House the power (which thank God it has) of expelling them, and cutting them off from the present parliament. If the House could not keep out such offenders, we might expel all in vain; they would as often be returned to us, and no business go on, ad infinitum, unless we went to the crown, and the other House, to oin us in a Bill to expel our own nubers, which would be

an event so monstrous, that I can never suppose any House of Commons will suffer it to happen. I will now proceed to shew, that the House in the resolution now moved to be expunged, proceeded only agreeably to both the law of parliament and the common law of the land, and will meet those gentlemen on their own ground, who argue with the learned serjeant, that such resolution is not consonant to the common law of the land. Sir, Prynne, who is a writer of great authority, makes use of this expression in his observations on the parliamentary writs, "that it is no restraint on the liberties of the people, to prevent them from chusing improper persons to represent them." What do those writs which are the law require? We are told, in the ancient writs, that the person to be chosen as a member to serve in parliament, must be probus, discretus, legalis ad laborandum potens, or, as the words of the writ now run, a sober and discreet burgess. Now, Sir, can a person be said to be probus et discretus, sober and discreet, who was in execution for writing obscene, impious, or traitorous libels, who was not purged from his crimes, by having paid his fine, and suffered the imprisonment allotted him by his sentence? Could Mr. Wilkes come under the farther description of legalis ad laborandum potens? Could he attend to serve his country in parliament while he was in prison, from whence the privilege of parliament could not release him? Certainly, as Mr. Prynne says, he was one of those improper persons' which the writs prohibit from being chosen to represent the people. Can a person expelled this House, for the crimes Mr. Wilkes was, or for any crime, be called probus et discretus, a sober and discreet person, and be eligible again in a few days? Common sense, as well as common law, opposes it. In short, Mr. Wilkes was not eligible at the time contended for by the tenor of the writ, which is the common law of the land; and the House of Commons, in declaring that John Wilkes, esq. having, in this session of parliament, been expelled this House, was and is incapable of being elected a member to serve in the present parliament, only followed the precedents of former parliaments, and went hand in hand with the writ, which is the common law of the land.

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And surely, no gentleman will call in question or oppose a power of this House, which goes pari passu with the common

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