i
:
ARTES
LIBRARY
1837,
SCIENTIA
VERITAS
OF THE
UNIVERSITY OF MICHIGAN
EL
PLURIBUS UMUTTA
TCEBOR
SI-QUÆRIS PENINSULAM-AMŒNAM
CIRCUMSPICE
, c
DA
510
c
+
A
*
COLLECTION
SCARCE AND INTERESTING
A C T S.
TRA
WRITTEN BY
PERSONS OF EMINENCE;
UPON THE MOST IMPORTANT,
POLITICAL
AND COMMERCIAL SUBJECTS.
DURING THE YEARS 1763, 1764, 1765, 1766, 1767,
1768, 1769 and 1770.
"The bent and genius of the age, is beſt known in a free
* Country, by the Pamphlets which daily come out, as con-
"taining the Senfe of Parties, and fometimes the Voice of the
"Nation."
{
LORD SOMERS'S MOTTO.
IN FOUR VOLUME S.
VOL. III.
LONDON:
FOR I. DEBRETT, IN PICCADILLY.
M DCC LXXXVII.
1
Contents of Volume III.
Page
3
{
SPEECH of the Right Hon. George Grenville, on
the motion for expelling Mr. Wilkes,
Mr. Wilkes's letter to Mr. Grenville in answer to
bis Speech,
A Letter on the Public Conduct of Mr. Wilkes,
A Fair Trial of the Important Question,
The Cafe of the Middlefex Election Confidered, by
Mr. Dyſon,
334026.
40
76
145
391
LA
$
S
P
E E C H
EČ
OF THE RIGHT HONOURABLE
GEORGE GRENVILLE,
ON THE MOTION FOR EXPELLING MR. WILKES,
FRIDAY, FEBRUARY 3, 1769 *.
Motion made by LORD BARRINGTON, and feconded by
MR. RIGBY.
TH
HAT John Wilkes, Efq; a member of this
houſe, who hath at the bar of this houfe con-
feffed himſelf to be the author and publiſher of what
this houſe has refolved to be an infolent, fcandalous,
and
* Minutes of the above fpeech having been taken at the time
it was made, and fome copies having been handed about, one of
them fell into the poffeffion of the publiſher; but before he
would offer it to the public, he fubmitted it to the perufal of
fome gentlemen, who had heard the ſpeech delivered, and whoſe
accurate and retentive memories have ſupplied every defect in the
minutes. He can therefore now venture to vouch for its au-
thenticity; and affures the public, it is really and literally what
the title imports it to be, The Speech of the Right Honourable
Mr. Grenville, upon the motion for expelling Mr. Wilkes the
first time from his feat in the prefent parliament for the county
of Middleſex.
>
To prevent the reader from confounding the fubfequent pro-
ceedings against Mr. Wilkes with that which gave occafion to
this ſpeech, the fatal confequences of which are therein fo clear-
ly predicted, it may be proper to remark, that Mr. Wilkes was
firſt elected for the county of Middleſex, on the 28th day of
March, 1768; that he was expelled on the 3d of February, 1769,
VOL. III,
A
the
[ 4 ]
and feditious libel, and who has been convicted in the
court of king's bench, of having printed and publiſh-
ed a feditious libel, and three obfcene and impious
libels, and by the judgment of the ſaid court has been
fentenced to undergo twenty-two months impriſon-
ment, and is now in execution under the faid judg-
ment, be expelled this houſe.
MR. SPEAKER,
I have endeavoured to form my judgment with re-
gard to this queftion, which was not unexpected, upon
the fulleſt and moſt impartial confideration; and hav-
ing done fo, I do not think myſelf obliged to make
the leaſt apology to any individual, or body of men
whatſoever, for the opinion which I ſhall deliver upon
this fubject.
I ſhould indeed have wifhed that I could with
pro.
priety have declined delivering my fentiments con-
cerning it, becauſe I am thoroughly fenfible that
whatever my opinion fhall be, it will be liable to
great mifconftructions and mifreprefentations, both
the day on which this fpeech was delivered; that he was rechoſen
for Middleſex the 16th day of the fame month; that his election
was declared void, and himſelf declared incapable of being
elected into the prefent parliament, on the 17th day of the fame
month: that he was again elected on the 16th day of March,
when no other candidate appeared, except Mr. Dingly, who
had not one vote; that his election was again declared void
on the 17th day of the fame month; that on the 13th day of
April he was returned by the ſheriffs, as having 1143 vetes, and
Col. Luttrell only 296. That on the 15th day of the fame
month, the houſe of commons voted, "That Mr. Luttrell ought
"to have been returned;" and that gentleman took his feat
accordingly. That a petition from ſeveral freeholders of the
county of Middlefex having been preſented against Mr. Luttrell
on the 29th day of April, the houſe of commons voted, on the
8th of May," That Henry Lawes Luttrell, Efq. is duly elected
"a knight of the fhire, to ferve in this prefent parliament, for
"the county of Middleſex."
withip
[ 5 ]
; or it
within theſe walls and without doors. If I give my
vote for the motion as it was made to you, it will be
faid, that I do it from a cruel unrelenting difpofition,
to gratify a private and perfonal refentment for the
abufe Mr. Wilkes has fo liberally thrown upon me,
and for that purpoſe under the maſk of zeal for the
cauſe of God and of the king, to perſevere in loading
an unhappy man, who, it has been frequently faid in
this houſe, has been already too feverely oppreffed by
iny means, or at leaft with my concurrence;
would perhaps be attributed, eſpecially after the tem-
perate conduct which I have endeavoured to hold
during this feffion, to an abject flattery to power, with
the mean paltry view of obtaining court favour. On
the other hand, if I give my vote against the expul-
fion of Mr. Wilkes, I fhall be charged with levity
and inconſiſtency, with changing my opinions as it
may beſt ſuit my ſituation either in or out of office,
with adopting new principles from new habitudes and
connections, and with a factious defign of courting
popularity, and diftreffing all legal government, by
fupporting and protecting a man, whofe behaviour I
had ſo repeatedly and fo heavily cenfured. If I know
my own failings, revenge and cruelty are among the
vices to which I am leaſt inclined; and if I may truſt
to the reproaches thrown out againſt me by my ene-
mies, I have been often accuſed of obftinacy and in-
flexibility of temper, but feldom or never I think
with being too much difpofed to alter my opinions
according to the will of others, or to fail along the
tide of popular prejudice. I fhould flatter myſelf
therefore, that the charge of facrificing principles to
court favour or popular applaufe, could not with
juſtice be applied to me, notwithſtanding which I will
again freely own, that I ſhould have wiſhed for many
reafons not to have been under the neceffity of deci-
ding upon this queftion, either one way or the other.
A 2
But
1
[ 6 ]
But as it has been propofèd to you, I think it would
be a baſe and unworthy conduct meanly to hide my
head or to run away from the difficulty. On the con-
trary, it is the duty of every honeft man, if he is
convinced that the judgment which he has formed is
à right one, to declare it publicly in his place, to
abide by it, and boldly to face any difficulties which
may encounter it. I am under no reſtraint either from
this or that fide of the houfe; I know and feel my
own independence on both, and while I continue here,
I will exert it, and upon this occafion execute an of-
fice greater than any which the wildeft applauſe of
the multitude can give, or than the king himſelf can
beſtow, greater than the office of firft commiffioner
of the treaſury, or either of the fecretaries of ftate:
the honourable and noble office of fpeaking the
truth, and of doing impartial juftice. I will not pal-
liate this man's offences, or try to move your compaf-
fion for that would be to appeal to your weakneſs
againſt your judgment; much leſs will I inveigh
againſt him in bitter terms, and ftrive to excite your
indignation: for inſtead of your weakneſs I fhould
then apply to your wicked paffions. With theſe fen-
timents I ſhould proceed to the immediate examina-
tion of the queftion before you. And in the firſt
place, I cannot agree with thoſe who have urged in
behalf of Mr. Wilkes, that this motion ought not to
be complied with, becauſe he is already the moſt un-
happy, as well as the moſt oppreffed and injured man
that this age has feen: he is indeed unhappy, becauſe
he is guilty, and guilt muft ever produce unhappineſs;
but in other reſpects, confidering his repeated of-
fences, he has certainly been more fortunate, than his
moſt fanguine wiſhes could have expected. I mean
not to enter into the detail of all that has happened to
him, it would carry me too far; but to juftify what I
have faid, let me afk a few queſtions. When he wrote
that
[ 7 ]
that feditious libel against the king and both houfes
of parliament, could he forefee that he fhould be
taken up by a general warrant, againſt the declared
opinion and defire of the two fecretaries of ftate, who
repeatedly propoſed to have his name inferted in the
warrant of apprehenfion, but were overruled by the
lawyers and clerks of the office, who infifted they
could not depart from the long eſtabliſhed precedents
and courſe of proceedings? Could Mr. Wilkes fore-
fee, that after an hundred years practice, under the
eye of the greateſt lawyers, before the fupreme courts
of juſtice, without being ever queftioned in one fingle
inftance, that this irregularity and illegality would be
firſt found out in his cafe, and afterwards adopted by
the voice and clamour of the people upon the occa
fion of his apprehenfion? Had he been tried and
convicted without this irregularity, what would have
been his fituation, and where his popularity and the
liberal ſupport which he has met with? What would
have become of the large damages which he has al-
ready obtained by this means, or the immenfe fums
which he now fues for, and on which he places his
laft dependance? Are theſe the proofs that he has been
the moſt unfortunate, or is it more true that he has
been the most oppreffed and injured man this age has
feen. Dr. Shebbeare was taken up by a general war-
rant from the fecretary of ftate, dated 12th January,
1758, conceived word for word in the fame terms,
for writing the fixth letter to the people of England
on the progreſs of national ruin, in which is fhewn,
that the prefent grandeur of France and calamities of
this nation, are owing to the influence of Hanover on
the councils of England. Under this general warrant
all his papers were ſeized as in the caſe of Mr. Wilkes,
and he was profecuted for this offence by Mr. Pratt,
then attorney general, now lord chancellor of Great
Britain. He was tried and convicted of it on the 17th
A 3
of
[ 8 ]
of May, and on the 28th of November following he
was fentenced to be fined, to ftand in the pillory, to
be impriſoned for three years, and then to give fecu-
rity for his good behaviour for ſeven years. The
profecution against Mr. Wilkes was directed by the
unanimous addrefs of both houfes of parliament. He
was tried and convicted by a favourable jury, for a
libel certainly not lefs feditious or criminal than Dr.
Shebbeare's. He was fentenced to be fined five hun-
dred pounds, and to be imprifoned for one year in-
ſtead of three years, to give fecurity for his good be-
haviour for ſeven years, and the ignominious part of
the puniſhment was wholly remitted. He was tried
and convicted likewife for being the author and pub-
liſher of the three obfcence and impious libels, upon
a proſecution directed in confequence of an addreſs
from the houſe of lords, for which he received exactly
the fame fentence as for the former offence, includ-
ing the two months impriſonment, which he had fuf-
fered before judgment was given. Was he for either
of theſe offences, or indeed for all of them taken to
gether, fo feverely dealt with as Dr. Shebbeare for one
alone? I do not go any further back, though a mul-
titude of fimilar inftances, and fome more fevere even
than that of Dr. Shebbeare might be produced within
theſe laſt forty or fifty years. What I have already
mentioned ſeems to me fully fufficient to fhew, that
Mr. Wilkes is not entitled to any extraordinary favour
on the prefent occafion, from the plea of his having
been the object of extraordinary ſeverity during the
courſe of the former proceedings. But, though not
to favour, yet he is moſt certainly entitled to that juf-
tice which is due to every man, and which we ought
to be more particularly careful to preferve, in an in-
stance where paffion and prejudice may both concur
in the violation of it. Thefe are principles which no
one will diſpute with me, and in confequence of them,
after
[ 9 ]
after having thoroughly confidered the charge con-
tained in your queftion, and the arguments urged in
ſupport of it, I am clearly of opinion, that I ought
not to give my affent to the propofition which has been
made to you; becauſe if I did, I fhould thereby com-
mit a capital injuftice. I am fenfible that the expref-
fion is a ſtrong one, and that it is incumbent upon me
to fhew my reaſons for applying it to the motion now
under your confideration, which I fhall endeavour to
do as fully and as fatisfactorily as I am able.
I perfectly agree with the gentleman who has told
you, that this houſe has a right to enquire into the
conduct of its members, and that they have exercifed
that right in a great variety of inftances, in which
they have tried, cenfured and expelled them accord-
ing to the eſtabliſhed courſe of our proceedings, and
the law of parliament, which is part of the law of the
kingdom. Let us examine the propofition now before
you by this rule, and we fhall then be able to judge,
whether it is conformable to the ufage and law of par-
liament, to the practice of any other court of juftice
in the kingdom, or to the unalterable principles of
natural equity, or whether it is a new and dangerous
mode of proceeding, unfupported by any precedent
or example in the journals of parliament, or the re-
cords of any other court, calculated merely to ſerve a
prefent purpoſe, and as fuch, well deferving the term
which I gave to it of a capital injuftice. The charge
contained in this motion conſiſts of four articles, each
of which it has been contended is fufficient fingly to
juſtify the conclufion drawn from them all put toge-
ther, that Mr. Wilkes ought to be expelled. Upon
this complicated charge, the houſe is now called upon
to give a judgment for or againſt the queftion. It is
a well known and undeniable rule in this houſe,
* Mr. Dyfon.
A 4
founded
[10]
founded in common fenfe, that, whenever a queſtion,
even of the moft trivial nature, is complicated, and
contains different branches, every individual member,
has an indubitable right to have the queſtion feparated,
that he may not be obliged to approve or difapprove
in the lump, but that every part of the propoſition
ſhould ſtand or fall abſtractedly upon its own merits.
I need not fhew the propriety and the abſolute neceſ
fity for this; it is fo felf-evident, that every argument
I could urge in fupport of it would only weaken it.
And ſurely if it holds good in all cafes where we act
only in a deliberative capacity, it will not be contend-
ed, that it is lefs true, or lefs neceffary, when we are
to exerciſe our judicial powers, when we are to cen-
fure and to punish, and to affect not only the rights of
our own member, but the franchifes of thoſe who ſent
him hither as their reprefentative. I may fafely chal-
lenge the gentlemen, the moſt knowing in the journals
of this houſe, to produce a fingle precedent of a fi-
milar nature. And if none fhall be produced, as I
am convinced there cannot, am I not founded in
faying, that this is a new attempt, unfupported by law
and uſage of parliament.
But this mode of proceeding is not only new and
unprecedented, it is likewife dangerous and unjuſt.
For the proof of it, let me recall to your minds what
has paffed in the courſe of this debate; one very
learned and worthy gentleman *, who fpoke early, de-
clared, that he gave his confent to this motion for
expulfion, upon that article of the charge alone, which
relates to the three obfcène and impious libels, dif-
avowing, in the moft direct terms, all the other ar-
ticles, becauſe he thought, that the libel relative to
Lord Weymouth's letter was not properly and regu
larly brought before us, and that Mr. Wilkes, having
* Mr. Blackftone.
been
1
[ 11 ]
been already expelled by a former parliament, for the
feditious libel of the North Britain, ought not to be
puniſhed and expelled a fecond time by a fubfequent
parliament for the fame offence. His argument was,
that the former houfe of commons, having vindicated
the honour of the king and of parliament, he hoped
this houſe would not fhew lefs zeal to vindicate the
caufe of God and of religion. He spoke with a be-
coming zeal and indignation, raiſed, as he told us, by
having read fome of the wicked and impious expref-
fions contained in the record now upon your table.
His opinions (which were foon after followed by an-
other learned gentleman *, who adopted the fame train
of reaſoning) joined to the ſerious manner in which he
delivered them, feemed to make great impreffion upon
the houſe, and though I differ with him in his con-
clufion, yet I agree with him in his principles, and
was glad to fee this offence treated as it ought to be.
For, if we treat it with mirth and levity, we in fome
meaſure juſtify the libel itſelf by our conduct, and
fhare the guilt of the author. On the other hand,
what were the arguments of the two noble lords †,
who ſpoke lately for the expulfion? They agreed in-
deed with the learned gentlemen in the conclufion,
but differed widely in the premiſes with regard to the
articles of the charge on which they founded their
judgment. They both difclaimed the article of the
three obfcene and impious libels as any ground for
this proceeding. They expreffed their diſapprobation
of the manner in which the copy of them was obtain-
ed from Mr. Wilkes's fervant, and their doubts with
regard to his intention to publiſh them. One of them
therefore defired to draw a veil over that part of the
charge, that it might no more be mentioned, and the
* Mr. Serjeant Nares.
+ Lord Frederick Campbell, Lord Palmerston.
other
[ 12 ]
other wished to bury the whole of that tranfaction in
oblivion. The firft, waving the rest of the charge,
grounded his affent to the motion upon the feditious
libel of the North Britain; the latter, if I miſtake not,
upon the libel againſt Lord Weymouth. Thefe fen-
timents likewife feemed to meet with great approba-
tion from many of your members. Another gentle-
man, who is very converfant in the journals of the
houſe, and could not therefore but be fenfible both of
the novelty and danger of this proceeding upon fuch
an accumulated and complicated charge, thought it
neceffary to take a different ground. He feemed to
wave the criminal parts of the charge, but infifted
ftrongly upon Mr. Wilkes's incapacity of continuing a
member of parliament, arifing from his impriſonment,
which the houſe had declared to be no cafe of privi-
lege, and from which they could not therefore dif
charge him.
I have ſtated theſe arguments, and I appeal to the
houfe, whether I have mifrepreſented them, I might
in the fame manner go through the rest of this debate ;
I think not above two gentlemen, who have ſpoken
together, have agreed in affigning the fame offence as
the proper ground for this expulfion. It is impoffible
to form any judgment concerning the fentiments of
thoſe who have not fpoken, except from thofe who
have, and from the approbation which has been given
to what they declared. If I am to judge from thence,
I ſhould imagine, that the opinions of thoſe who con-
cur in this queftion of expulfion, are almoft equally
divided among the ſeveral branches of the charge con-
tained in it; but however that may be, it is undeni-
ably true, that great numbers of gentlemen approve
of ſome parts of the charge, and difapprove of others,
and fo, vice versa. What then may be the confequence
+ Mr. Dyfon.
of
[ 13 ]
of blending the whole of this matter together? Is it
not evident, that by this unworthy artifice, Mr. Wilkes
may be expelled, although three parts in four of thoſe
who expell him ſhould have declared againſt his ex-
pulfion upon every one of the articles contained in
this charge. Would not this fevere puniſhment be
inflicted upon him, in that cafe, by a minority, againſt
the ſenſe and judgment of a great majority of this
houfe? To explain this in a manner obvious to the
apprehenfion of every gentleman who hears me, let
me ſuppoſe, that an indictment were framed, confiſt-
ing of four diftinct offences, each inferring the pe-
nalty of death; charging, for example, that the priſoner
on the firft of May had committed treafon, on the
firft of June murder, on the firft of July robbery,
and on the firſt of Auguſt forgery. Let me fuppoſe
any court of judicature in the kingdom ignorant and
wicked enough to admit of, and to try the priſoner
upon fuch a complicated indictment, notwithſtanding
any objection he could make to it. Might he not be
found guilty of each of thefe offences by three diffe-
ṛent jurymen, and declared innocent by nine, and
would he not in fact by this contrivance be con-
demned to death by three, although acquitted by
nine? What would mankind, what would you your-
felves fay of fuch a sentence fo obtained? Would you
not think the term of capital injuftice too foft an
expreffion? Would you not call it the worst of mur-
ders, a murder under the colour of law and juſtice?
The puniſhment would indeed be different, becauſe
the offences are fo; but the mode of proceeding on
the preſent occafion is exactly the fame, and equally
inconfiftent with the law and ufage of parliament, with
the practice of every court of judicature in any civi-
lized country, and with the unalterable principles of
natural equity. But I will reftrain my expreffions,
and leave this part of the queftion to your own feel-
ings,
*
[ 14 ]
ings, which I am perfuaded will enforce it more
ftrongly than any arguments of mine.
I have hitherto taken the whole of this complicated
charge together, and have ſhown the dangerous con-
fequences refulting from it; I will now unravel the
web, and confider the different parts of it feparately
and diſtinctly. The firſt which prefents itfelf is the
libel relative to Lord Weymouth's letter, which has
been new chriſtened for this fpecial purpofe. It was
complained of in the other houſe as a breach of pri-
vilege, and as a grofs and impudent libel, which it
certainly is, againſt a peer of the realm, and one of
his majeſty's principal fecretaries of ftate. But when
it appeared to be written by Mr. Wilkes, it was to
change its name and its nature. The particular com-
plaint and all mention of the noble lord concerned in
it was to be dropped, and it became at once a matter
of fedition againſt the ſtate. With what view was
this alteration made? Why did not the houſe of lords
addreſs the king, to have it proſecuted by the attorney
general, in the fame manner as was done with regard
to the three obfcene and impious libels which were
written by the fame perfon then a member of this
houſe, and were likewife complained of as a breach
of privilege againſt a peer of parliament? What was
the motive for this difference of proceeding in the
other houſe, on two offences of the fame nature againſt
the fame perfon? It was not out of regard to us and
to our privileges, for they well knew, that we had
joined with them in a folemn declaration, that in this
cafe there was no privilege, and they themselves had
proceeded in confequence of it againſt this very man
then a member of parliament, for a fimilar offence,
without communicating it to the houſe of commons.
Can any reafon be affigned for this, except a defire
in their lordships to fhift the juriſdiction, and inſtead
1
of
[ 15 ]
}
of fending it to the courts of law, where libels againft
ininifters have hitherto always been tried, to tranfmit
it to us to be punished, contrary to all precedent and
example, by an extraordinary extenfion of our judica-
ture? And will this houſe, whofe peculiar duty it is
to watch over and to guard the laws of the land from
all encroachments, and who have looked with the moſt
jealous eye upon every act which has the leaft tendency
to exempt the peers of the realm, and their caufes
from that jurifdiction which is common to all, will
this houfe, I fay, lend its name to fuch an evaſion,
and extend its judicature for ſuch a purpoſe? fhall we
take upon ourſelves fo' odious an office, and anſwer
fuch a demand at fight, with no other view, than to
fave their lordships the difficulty and obloquy, which
is the ufual confequence of theſe profecutions? If this
attempt fhould fucceed, and fo eafy and fummary a
method fhould be marked out for the punishment of
thoſe who fhall libel minifters of ftate, this probably
will not be the laft application which we fhall receive
of this nature. We have enough to do, too much I
fear, to maintain our own authority and dignity unim-
peached, and furely the other houſe has fufficient
power in themſelves, with the affiftance of the courts
of law, to vindicate their members from every infult.
The next article is that of the feditious libel the
North Briton, for which, the author and publiſher was
deſervedly proſecuted, tried and convicted five years
ago, in confequence of the unanimous addrefs of both
houſes of parliament. He was likewife expelled by
the laſt houſe of commons for the indignity offered to
them by one of their own members, of which they were
the only judges, and which they alone could puniſh;
a caſe ſo widely different from that of a libel on any
particular perſon or minifter of ftate, that it is quite
unneceffary to do more than to mark it out to your
obfervation.
[ 16 1
obfervation. For this libel of the North Briton Mr.
Wilkes has been fentenced, and is now undergoing
the puniſhment inflicted on him by law. He has
likewiſe been puniſhed by expulfion from the former
houſe of commons for the particular offence commit-
ted againſt them. There is not a rule more facred in
the juriſprudence of this country, than that a man
once acquitted or condemned, fhall not be tried or
puniſhed again by the fame judicature for the fame of
fence. How many notorious criminals daily eſcape
by the ſtrict obfervance of this rule, and yet the
principle of it is fo falutary, and fo deeply rooted in
the minds of men, that no one dares to fet his face
againſt it, and to avow an intention to break through.
it. It was but a few days ago that I spoke and voted
to reſtrain Mr. Wilkes from entering into the greater
part of his petition, becauſe the ſubject matter of his
complaint had been fully heard, and the parties to
it duly acquitted by the laſt houſe of commons. The
houſe, after long debate, adopted the reaſoning, and
Mr. Wilkes was reftrained accordingly.
And fhall I, within the little fpace of a few days,
forget every argument which I then uſed againſt him,
and declare without fhame that the fame rule of law,
which was conclufive when urged in behalf of his ad-
verſaries, ſhould in the fame caufe be of no avail
when pleaded in his favour. Is this that confiftency
upon which I, and thoſe who hear me, are to value
ourſelves? I haye not taken up that facred principle
fo lightly, nor will I fo wantonly depart from it.
Permit me to give you an inftance of it. Many years
ago, a propofition was made to allow of a reviſion of
of the fentence of a court martial. The queftion was
folemnly argued. I then fat at the treafury board
with a minifter for whom I had the higheſt perſonal
* Mr. Pelham.
regard
[ 17 ]
XI
regard and reſpect; and yet in oppofition to him, and
to the fentiments of thofe *, with whom I was con-
nected by the neareſt ties both of blood and friend-
ship, I repeatedly voted and fpoke againſt that revi-
fion, in conjunction with a noble perfon +, who then
fat at the fame board with me, and an honourable
gentleman, an officer of the army, who afterwards
held the office of one of his majefty's principal fecre-
taries of ſtate, who now hears me, and to whom I ap-
peal for the truth of what I have ſaid upon this fub-
ject. Is not this the revifion of a fentence given in a
former parliament in order to encreaſe it? And if this
motion for the expulfion of Mr. Wilkes, as grounded
upon that offence, fhall prevail, will he not be twice
expelled and twice puniſhed for one crime by the fame
judicature, in direct violation of that falutary princi-
ple, to the truth of which we ourſelves have fo lately
affented.
The third article contained in the charge is for
printing and publiſhing three impious and obfcene li
bels, under the title of the Effay upon Woman; I
truft that none who hear me, I am fure that no one
who knows me will believe, that I mean to palliate
that crime, or the feditious and dangerous libel which
I have juſt now mentioned. I will go further, I
cannot agree with thoſe who think, that the papers
relative to it were obtained by thoſe who profecuted
him in any undue or improper manner. The contrary
has appeared by Mr. Wilkes's own evidence a few
days ago. That profecution was begun in another
place, and I had nothing to do with it; but in juftice
to thoſe who were concerned, I muft fay, that there
was not the leaſt foundation for all that calumny that
has been propagated with regard to the manner of
obtaining them, for the truth of which I appeal to
* Lord Temple and Lord Chatham.
+ Lord Lyttelton.
General Conway.
the
[ 18 ]
1
}
the examination which the houſe has fo lately made
on Mr. Wilkes's petition upon that fubject. I muft
therefore freely declare, that this obfervation has no
weight with me. The other part of the objection is
founded upon the evidence given at your bar, that
Mr. Wilkes had directed only twelve copies of them
to be printed, and had ſtrictly ordered, that they
fhould all be delivered into his own hands, from
whence it is urged, that he had no intention to publiſh
them at large. This may be indeed a circumſtance
of alleviation, which I am the more authoriſed to ſay,
as I am informed it was mentioned by the learned
judge*, in mitigation of the fentence given against
him in the court of king's bench. But the ſtrongeſt
plea in his defence upon this head. is, that the crime
was committed five years ago, that the law has al-
ready puniſhed it, that the laft houfe of commons,
though they were not ignorant of it when they pro-
ceeded againſt him, and certainly were not partial to
him, yet, as they were not particularly concerned in
it, did not think it right for them to interfere in it. It
might therefore be thought a hardſhip to him to let
it paſs unnoticed by them, and many years after to
transfer it to another parliament, and to referve it in
fo unuſual a manner for a freſh cenfure.
The laft article of this complicated charge is, that
Mr. Wilkes has been fentenced by the judgment of
the court of king's bench, to undergo twenty-two
months impriſonment, and that he is now in execu-
tion under that judgment. This circumftance has
been principally relied upon and enforced by a gen-
tleman †, who has laboured very ftrongly to prove
that, as Mr. Wilkes is thereby difabled from taking
his feat, and doing his duty for fixteen months to
come, this diſability alone is a proper and fufficient
* Mr. Jnftice Yates.
+ Mr. Dyfon.
ground
}
[ 19 ]
ground to juftify the propofition which has been made
to you for expelling him. You have been told very
truly, that his conftituents have the cleareſt and moſt
undeniable right to the attendance of their reprefenta-
tives in parliament, that there is no privilege which we
are or ought to be fo tender of, as to free our mem-
bers from the leaft reſtraint, which may prevent or
even interrupt them in the exercife of this duty, that
this confideration is of fuch infinite moment, that the
ufual courſe of juftice in all civil cafes is to give way
to it and be fufpended, in order to preferve the right
of our conſtituents from being violated in the ſmalleſt
degree: that we have already declared, that Mr.
Wilkes is not entitled by privilege of parliament to
be diſcharged from his impriſonment, and that we
have no other method to enforce the attendance of our
member that under theſe circumftances he would for
a long time to come be utterly diſabled from perform-
ing that duty which he owes to his conftituents, unlefs
the king fhould be pleafed to pardon him, which
would in effect be leaving to the option of the crown
to determine, whether one of our members fhould or
ſhould not take his feat in this houfe. I entirely con-
cur with the general pofitions which have been laid
down as the foundation of this argument, but I differ
extremely in the confequences which have been drawn
from it, and think that I can fhew to a demonftration,
that by the law and conftant ufage of parliament, the
inability of attending his duty for the ſpace of a year
or two has never been deemed a fufficient reafon for
the expulfion of a member. I fay his inability, for
his impriſonment has juftly been ftated, not as a freſh
crime, but as an inability in him to attend, and in the
houfe to reclaim him. The propofition therefore is,
that whenever a member is reftrained from doing his
duty here, and that the houſe cannot compel his at-
tendance without the immediate interpofition and con-
VOL. III.
B
fent
[ 20 ]
fent of the crown, in all ſuch caſes the houſe is bound
by the law and practice of parliament to proceed to
an expulfion of the member fo difabled.
Let us fee how far this doctrine is warranted by for-
mer precedents. Not one has been produced in fup-
port of it. On the contrary, need I put that gentle-
man in mind of a multitude of examples, many of
which have happened in our own time, which prove
the very reverſe of it. Does he not remember the
cafe of Lord Barrymore and Sir John Douglas, both
of them members of this houfe, who were impriſoned
upon the fufpenfion of the habeas corpus act for a
longer period of time than Mr. Wilkes, and who
could not be delivered from that impriſonment with-
out the interpofition and conſent of the crown? many
cafes of a fimilar nature must be fresh in the memory
of us all, but there is one which I cannot mention
without a particular reſpect and reverence to the perſon
concerned in it. I mean the cafe of Sir William
Wyndham. He was impriſoned in the Tower for up-
wards of two years, during which time the county
which he repreſented, and the public in general, were
deprived of thofe fervices for which he was fo emi-
nently qualified, and which he performed with fo much
honour to himſelf and advantage to them. But though/
the times were warm and violent, and many wiſhed to
get rid of thofe abilities which they were well ac-
quainted with, yet no man ventured in that or any of
the other inftances to maintain the doctrine now laid
down, that becauſe the parties were reftrained from
their attendance here by a legal impriſonment, from
which this houſe could not deliver them without the
interpofition and confent of the crown,, they therefore
ought by the law and conftitution of parliament to be
expelled. I am well aware that in theſe caſes it may
be faid, the parties had not been convicted, that there
is
[ 21 Ï
is therefore a great difference as to the certainty of the
crime imputed to them. It is true, and God forbid
that I ſhould draw any parallel of that kind, but with
regard to the reſtraint abftracted from the crime, which
is made the only foundation of this part of the argu-
ment, it is exactly the fame as in the preſent inftance.
Nor will the confequences ftop here, if it ſhould be
admitted that this argument is well founded; I am
convinced the gentleman who urged it was not aware
of them. Would he wish that all thofe whom the
king can by law reftrain from their attendance in this
houſe for the ſpace of fifteen or fixteen months, and
who are thereby unable to diſcharge the duty which
they owe to their conftituents. Would he wiſh, I fay,
that they ſhould be all declared, ipfo facto, incapable
of fitting in parliament after that reftraint fhall be
ended? has he forgotten how many officers, both in
the land and fea fervice, whilft they were members of
this houſe, were abfent for many years together, during
the late war? Are there not many in the fame fitua.
tion, who are at this very time actually employed
upon military ſervices in our garrifons abroad? Can
they leave that duty without the interpofition and con-
fent of the crown; or, if they cannot, will it be con-
tended, that they are difabled from ever returning
amongst us, and that their feats are thereby vacated.
This doctrine, if true, would prove, that the gentle-
men of the army and of the navy, who from the na-
ture and condition of the reſpective ſervices, are at
all times liable to this objection, are for that reafon
not eligible into this houſe, and would be the ſtrongeſt
argument for an act of parliament declaring their in-
capacity. Many other cafes might be put of tempo-
rary diſabilities, even for a longer ſpace of time, which
have never been, and I believe never will be deemed
proper grounds for an expulfion. I fhall not however
ſtate them particularly, becauſe thoſe which I have
B 2
already
[ 22 ]
already ftated, will furely be fufficient to convince the
houſe, that this propofition is directly contrary to the
practice, and that it has never been warranted in any
one inftance by the law and ufage of parliament.
But it has been urged, whatever may be the cafe in
point of form, with regard to the feveral articles con-
tained in this queſtion, whether taken together as an
accumulated and complicated charge, or confidered fe-
parately and diftinctly, yet this houſe muſt neceffarily
be the judges, whether any member of their own is or
is not a fit perfon to fit amongst them, and it has been
argued, that if the laft parliament thought him unfit,
the preſent has certainly an equal right to adjudge that
he is fo. It has been aſked, what merit has he had
fince that time to recommend him, and to induce the
preſent parliament to think him a properer man to fit
amongst them, than he was to fit among their prede-
ceffors. This would indeed be a conclufive argument,
if we really had that difcretionary power of excluding
all thoſe whom we think improper upon which it is
founded. But we have no fuch general authority vefted
in us, nor is there a fingle precedent where we have
pretended to exercife it. Whenever this houſe has
expelled any member, it has invariably affigned fome
particular offence as the reafon for fuch expulfion.
By the fundamental principles of this conftitution, the
right of judging upon the general propriety or unfitneſs
of their reprefentatives is entruſted with the electors,
and when chofen, this houſe can only exclude or expel
them for ſome diſability eſtabliſhed by the law of the
land, or for fome ſpecific offence alledged and proved.
If it were otherwiſe, we fhould in fact elect ourſelves,
inſtead of being chofen by our reſpective conſtituents.
If I had been one of the electors for the county of
Middleſex, I ſhould have ſhown by my vote the opi-
nion which I entertained with regard to the conduct
and character of Mr. Wilkes, and to the propriety of
choofing
[ 23 ]
chooſing him a knight of the fhire for that county. I
had not only a right, but it would have been my duty
to have manifefted that opinion. But when he is
choſen and returned hither; my duty is widely different.
We are now acting in our judicial capacity, and are
therefore to found the judgment which we are to give,
not upon our wiſhes and inclinations, not upon our
private belief or arbitrary opinions, but upon ſpecific
facts alledged and proved according to the eſtabliſhed
rules and courſe of our proceedings. When we are to
act as judges, we are not to affuine the characters of
legiſlators, any more than the court of king's-bench,
who were bound to reverſe Mr. Wilkes's outlawry if.
they found any irregularity in it, though poffibly they
were convinced in their private opinions, that it would
have been more beneficial to the ftate to have con-
firmed it. If we depart from this principle, and allow
to ourſelves a latitude of judging in queftions of this
nature, if we are to admit thoſe whom we think moft
proper, and to expel thofe whom we think moft im-
proper, to what lengths will not this doctrine carry us?
There never was a parliament chofen, into which there
were not ſome perfons elected whom the greater part of
the houſe thought unworthy of that honour. I ſpeak of
former parliaments, and it becomes us to be careful
that pofterity ſhould not ſpeak ftill worfe of us. Let me
fuppofe for a moment that this was true, to a certain
degree even in the preſent parliament, and that it were
carried ſtill farther from party prejudice, or from mo-
tives lefs defenfible. This would indeed be the fure
means of purging the houſe effectually from all ill
humours within theſe walls, and of difperfing them at
the fame time through every corner of the kingdom.
But if this fummary mode of reafoning was really
meant to be adopted, there was certainly no occafion
for our fitting four or five days and nights together,
to decide a queftion, which might as well have been
B 3
deter-
1
[ 24 ]
determined in fo many minutes. I cannot therefore
bring myſelf to think, that any gentleman will avow
the propofition to this extent. But perhaps ſome may
wiſh to ſhelter themſelves under the other part of the
argument, and may contend, that a man who has been
expelled by a former houfe of commons cannot, at
leaft in the judgment of thoſe who concurred in that
fentence, be deemed a proper perfon to fit in the pre-
fent parliament, unleſs he has fome pardon to plead, or
ſome merit to cancel his former offences. They will
find upon examination that this doctrine is almoſt as
untenable as the other. Votes of cenfure, and even
commitments by either houfe of parliament acting in
that capacity only, determine, as it is well known, with
the feffion. There are indeed fome inftances, where in
matters of contempt and refufal to fubmit to the orders
of the houſe, the proceeding has been taken up again
in a following feffion. But to transfer an expulſion
from one parliament to another, and by this means to
eſtabliſh a perpetual incapacity in the party fo expelled,
which muſt be the confequence of it, as this objection
will hold equally ſtrong in any future parliament as in
the prefent. This I fay, would be contrary to all pre-
cedent and example, and inconfiftent with the fpirit of
the conftitution. I could cite many precedents to
prove the firſt part of my affertion, but one alone will
be fufficient for my purpoſe, becauſe that is fo fignal,
and fo memorable in all its circumſtances, as to render
any confirmation or inforcement of it quite unneceffary.
In quoting this precedent I beg leave to fay, that I do
not intend to throw any imputation on any perſon
whatſoever. I neither mean to acquit or to condemn
thoſe who were parties to it, but merely to ftate the
fact as it appears from your journals, and then to fub-
mit the reſult of it to the judgment of thoſe who hear
me. The cafe I allude to was that of Mr. Walpole,
who was afterwards first minifter to king George the
firſt
[ 25 ]
firſt and king George the fecond for the term of twenty
years and upwards. On the 17th January 1711-12 he
was voted by the houſe of commons guilty of a high
breach of truſt and notorious corruption, in receiving
the fum of 500 guineas, and taking a note for 500
pounds more on account of two contracts made by
him when ſecretary at war, purſuant to a power granted
by the lord treaſurer, and for this offence he was com-
mitted priſoner to the Tower and expelled the houſe.
He was immediately re-elected, but declared incapa-
ble of being chofen during that parliament. How-
ever, on the diffolution of it a year and a half after-
wards, he was again chofen into the parliament, was
admitted to take his feat without the leaſt queſtion or
objection on account of his former expulfion, and con-
tinued a member of the houſe of commons in every
ſubſequent parliament till the year 1742, when he was
created earl of Orford. It cannot be denied that the
offence was in its nature infamous, and fuch a one as
rendered the perfon guilty of it unfit to be trufted with
the power to give, or to manage the public money.
The fame party that expelled him, whofe enmity was
aggravated by his great talents and knowledge of
buſineſs, continued equally adverſe to him, and equally
prevalent in the new parliament; but however defirous
they were to get rid of him, and however violent upon
many other occafions, yet in the very zenith of their
power, they did not dare to ſet up this pretence, or to
urge the expulfion of a former parliament, although
not two years before, as a fufficient ground for re-
expelling or declaring him incapable of fitting in a new
parliament. If this could have been attempted, every
circumſtance concurred to make them with it. The
crime itſelf was breach of truft, and notorious corrup-
tion in a public officer relative to public money, an
offence in the eye of parliament certainly not leſs in-
famous or lefs criminal than writing and publishing a
feditious
B 4
[ 26 ]
feditious libel. Few if any were more obnoxious, or
more formidable to them than the gentleman who had
been the object of their juftice or refentment. The
heat of party rage had been pleaded in excufe, if not
in juftification of many extravagancies on both fides,
but they thought this meaſure beyond the mark of a
common violence, and therefore dared not to attempt
it. I have faid before, that it was not my intention to
approve or to blame the cenfure then paffed upon that
extraordinary man. It was the fubject of great diſcuſ-
fion and altercation at the time. I do not wifh to
revive paſt heats. The prefent are more than fufficient,
and all wife and good men fhould endeavour by juſtice
and moderation to allay them. Let us therefore take
it either way. Let us fuppofe, that he was guilty or
innocent of the charge to the utmoſt extent, and then
let us confider how the cafe will apply to that part of
the queſtion which is now before us. The crime, as
it related to a fraud concerning the public revenue,
was certainly under the immediate cognizance of this
houſe, and was perhaps puniſhable in no other man-
ner. They puniſhed it as feverely as they could, both
by impriſonment and expulfion; the former of which
ended in a few months, and the confequences of the
latter in a year and a half. If he was guilty of a high
breach of truſt and notorious corruption, he was cer-
tainly very unfit to be invefted with the moſt ſacred
truſt in the kingdom, that of a member of the legiſla-
ture. Had the queſtion been aſked upon that occaſion
likewife, what merit he had after his firft expulfion to
recommend him to the fubfequent parliament? The
anſwer muſt have been, that he had perſiſted in juſtify-
ing what he had done, that he had appealed not only to
his electors, but to the world at large in more than one
printed pamphlet, accufing the houſe of commons
which had condemned him, of violence and injuftice.
With all theſe aggravations, and with every other in-
ducement,
[ 27 ]
2
ducement, what could have protected him, what could
have prevented his re-expulfion, but the notoriety and
the certainty that ſuch a meaſure was not confiftent
with the known law and ufage of parliament, even
when exerted againſt a guilty and obnoxious man?
This is the ftate of the argument upon that fuppofition;
but if we take the other part of the alternative, and
ſuppoſe that he was innocent of the charge, the pro-
pofition would be much ſtronger; we muft then con-
fider him in the light of a man expelled by party rage,
or on worſe motives, not for his crimes but for his me-
rit, not that he was unfit, but that he was too well
qualified for the truft repoſed in him. What would
have been the confequence, if this doctrine of transfer-
ring the difability incurred by a former fentence to a
fubfequent parliament had been then eftabliſhed? The
public and this houſe would have been deprived for
ever of thoſe ſervices, which from his knowledge and
talents they had a right to expect, and which they fo
much relied upon, particularly in the important bufi-
nefs of the finances of this kingdom, and that gentle-
man and his family would have been precluded, irre-
parably precluded, by an unjuſt judgment, from thoſe
great emoluments and high honours which were con-
ferred upon him by two fucceffive kings, as the rewards
of his adminiftration. That lofs however would have
been the misfortune of individuals, but a much heavier,
a much more extenſive misfortune would have befallen
the parliament and the conftitution, if fo dangerous a
precedent had taken place. An eafy and effectual plan
would have been marked out to exclude from this
houſe for ever, by an unjuft vote once paffed, any
member of it who fhould be obnoxious to the rage of
party, or to the wantonnefs of power. Let not your
prejudices, let not your juft refentments againſt the
conduct and character of the man, who is now the ob-
ject of our deliberation, prevail upon you to ground
any
[ 28 ]
1
any part of your proceedings upon fuch deftructive and
fatal principles. Confider that precedents of this na-
ture are generally begun in the firſt inftance againſt the
odious and the guilty, but when once eſtabliſhed, are
eafily applied to and made ufe of againſt the meritori-
ous and the innocent: that the moft eminent and beſt
deferving members of the ftate, under the colour of
fuch an example, by one arbitrary and difcretionary
vote of one houſe of parliament (the worft fpecies of
oftraciſm) may be excluded from the public councils,
cut off and profcribed from the rights of every ſubject
of the realm, not for a term of years alone, but for ever:
that a claim of this nature would be to affume to the
majority of this houſe alone, the powers of the whole
legiſlature; for nothing ſhort of their united voice,
declared by an act of parliament, has hitherto pretend-
ed to exerciſe fuch a general diſcretion of puniſhing,
contrary to the ufual forms of law, and of enacting
fuch a perpetual incapacity upon any individual.
There are indeed fome inftances of the latter* kind in
our ſtatute books, but even there they have been fre-
quently animadverted upon, and heavily cenfured as
acts of violence and injuftice, and breaches of the con-
ftitution. Let us remember the well known obferva-
tion of the learned and fenfible author of L'Eſprit des
Loix, who ftates it as one of the excellencies of the
Engliſh conftitution, of which he was a profeffed ad-
mirer," that the judicial power is feparated from the
legiſlative;" and tells us,
"that there would be no
liberty if they were blended together, that the power
"over the life and liberty of the citizens would then
"be arbitrary; for the judge would be the legislator."
Shall we then, who are the immediate delegated guar-
dians of that liberty and conſtitution, fhall we fet the
wicked example, and attempt to violate them to gratify
66
* Bills of pains and penalties.
our
[ 29 ]
[
upon
our paffions or our prejudices? And for whom and
what occafion? Not to preſerve the ſacred per-
fon of fovereign-from affaffination, or his kingdoms
from invafion or rebellion, not to defeat the arbitrary
defigns of a defperate minifter or a defpotic court ‡,
but to inflict an additional puniſhment upon a libeller,
who appears by the queſtion itſelf to have been con-
victed of the greater part of his offences by due courſe
of law, and to be in actual impriſonment at this mo-
ment, under a legal fentence pronounced by the fu-
preme court of criminal juſtice in confequence of that
conviction. Can we ſay, that there are not laws in be-
ing, to preſerve the reverence due to the magiſtrate,
and to protect the dignity of the crown from fcandalous
and feditious libels? Are they not fufficient, if tem-
perately and firmly executed, to puniſh and to deter
the moſt daring from the commiffion of thoſe offences.
If they are, for what purpoſe is this application? If they
are not, can the propofition now made to you, be deemed
the proper or the effectual method of enforcing them?
This brings me to the only part of the queftion
which I have not yet touched upon; I mean the pro-
priety and wiſdom of this meafure; fuppofing even
that it were clearly warranted by the law of the land,
by the law and uſage of parliament, by the ſpirit of our
conſtitution, and by the general principles of natural
juftice: the contrary of which I think I have manifeft-
ly fhown in every one of thofe particulars. What
then are the motives of propriety and wiſdom by which
we are called upon to come into this extraordinary re-
folution? I fhall probably be told, that it is to check
and to reſtrain the ſpirit of faction and diſorder, to re-
eſtabliſh the credit and authority of government, and
to vindicate the honour of this houfe, by expreffing
our abhorrence of thefe offences. No man has been
Fenwick and Atterbury's bills.
Lord Strafford's bill.
more
[ 30 ]
more defirous to attain thefe neceffary purpoſes that I
have been, or will now fet his foot farther for the ac-
compliſhment of them by all juft and legal means, in
every inſtance confiftent with the public fafety. I
have not changed my fentiments relative to Mr. Wilkes,
of whom I continue to think exactly in the fame man-
ner as I have long done; but, whatever my ſentiments
are, it cannot be denied, that he is now become an ob-
ject of popular favour. Nor is that popular favour
confined to this capital, or to its neighbourhood alone,
but is extended to the diftant parts of the kingdom.
The temper of the people you have been truly told,
has on feveral occafions appeared to be diſorderly and
licentious, ſpurning at the laws and at all lawful autho-
rity. The difficulties we have to ftruggle with, arifing
from the interior condition of this country, from the
diſobedience of our colonies, and from the ſtate of our
foreign affairs, are augmented to fuch a degree, as to
form a very dangerous crifis. The refpect and re-
verence due to the parliament, and the confidence
repofed in this houfe, are vifibly diminiſhed. Un-
der theſe circumftances does it not behove us
be doubly cautious, not to exceed the ftricteft
bounds of law and of the conftitution? Is it not
more adviſeable, if the cafe can admit of a doubt,
to conciliate the heated minds of men by temper and
diſcretion, than to inflame them by adding freſh fuel to
diſcontent? Our fituation, I am fure, demands the
firm fupport of an united people, and their affectionate
reliance upon the wiſdom of thoſe who govern them.
Till that can be reſtored, at leaſt in fome meaſure, we
may look around for order and for obedience in vain.
If his majeſty's fervants can think that this proceeding
is the likely means to restore it, let them, for the fake
of this houſe, whofe exiftence depends upon the good
opinion of our conftituents, as their happineſs does
upon us; let them for their own fakes, confult that
beſt guide to all human wiſdom, the experience of paſt
times
[ 31 ]
The
times; and where can they confult it more properly
than in the hiſtory of our own country. There they
will find ſome of the ableſt minifters and the moſt vic-
torious general that any age could boaſt of, difgraced
and overturned in the midft of their fuccefs and tri-
umph by a popular clamour of the danger of the
church. The reverend incendiary Dr. Sacheverell, was
unwifely profecuted by this houfe. He became by
that means the favourite and the idol of the people
throughout England as much, nay more, than Mr.
Wilkes is now. The queen herſelf was ftepped and
infulted in her chair during the trial, with God fave
Dr. Sacheverell. I heartily wish that no fimilar inſult
may have been offered to our preſent fovereign. The
proſecution went on and the ferment encreaſed.
event verified a famous expreffion in thoſe days, “that
"the whigs had wiſhed to roaſt a parfon, and that
"they had done it at ſo fierce a fire, that they had
"burnt themſelves," for the minifters were diſmiſſed,
and the parliament diffolved. The reverend doctor,
the mob idol, when he ceaſed to be a martyr, foon
funk into his original infignificancy, from which that
martyrdom alone had raiſed him. Mr. Wilkes, ap-
prehenfive of the fame fate, and thoroughly fenfible,
that the continuance of his popularity will depend up-
on your conduct, uſes every means in his power to
provoke you to fome inftance of unufual feverity.
Suppoſe that you could otherwife have doubted of it,
yet his behaviour here at your bar, when called upon
to juſtify himſelf, is fully fufficient to prove the truth
of what I have afferted. If he had intended to de-
precate your refentment, and to ftop your proceedings
againſt him, he is not fo void of parts and underſtand-
ing, as to have told you in the words he ufed at the
bar (when charged with writing the libel against Lord
Weymouth)" that he was only forry he had not ex-
"preffed himſelf upon that fubject in ftronger terms,
and that he certainly would do fo whenever a fimilar
" occafion
[ 32 ]
14
"occafion fhould prefent itself;" nor would he have
afked, "whether the precedents quoted by Lord
"Mansfield were not all taken from the ſtar-chamber."
If he had wished to prevent his expulfion, he would
have employed other methods to accompliſh his pur-
poſe; but his object is not to retain his feat in this
houfe, but to ftand forth to the deluded people as the
victim of your refentment, of your violence and in-
juftice. This is the advantage which he manifeftly
feeks to derive from you, and will you be weak enough
to give it to him, and to fall into fo obvious a fnare?
What benefit will you gain, or what will he lofe, if
this motion for his expulſion ſhall take effect? What-
ever talents he has to captivate or to inflame the people
without doors, he has none to render him formidable
within theſe walls, or to combat the weighty and
powerful arguments which minifters know how to
employ. He has holden forth high founding and
magnificent promiſes of the fignal fervices which he
will perform to his country in parliament, and there are
many who are ignorant and credulous enough to be-
lieve them. Whenever he comes here, I will venture
to prophecy that they will be grievously diſappointed.
That diſappointment will be followed by difguſt and
anger, at their having been fo grofsly deceived, and
will probably turn the tide of popular prejudice. But
as foon as he fhall be excluded from this houſe, they
will give credit to him for more than he has even pro-
miſed. They will be perſuaded, that every real and
imaginary grievance would have been redreffed by his
patriotic care and influence. If in this fituation, any
untoward accident, any diſtreſs ſhall befall us, the fer-
ment will be encreaſed by this circumftance, and the
language of an uninformed and miſled people will be,
aye, if mafter Wilkes had been in the houſe he
"would have prevented it; they knew that, and there-
"fore would not fuffer him to come amongst them."
60
Such
[ 33 ]
Such will be the reaſoning, and fuch the conſequences
attending this meaſure; but they are not the only con-
fequences which ought to be weighed and confidered,
before you engage n it. Look a little forward to the
courſe of your future proceedings, and fee in what dif
ficulties you will involve yourſelves. In the prefent
difpofition of the county of Middlefex, you cannot en-
tertain a doubt, but that Mr. Wilkes will be re-elected
after his expulfion. You will then probably think
yourſelves under a neceffity of expelling him again,
and he will as certainly be again re-elected. What,
ſteps can the houſe then take to put an end to a dif
graceful conteſt, in which their juftice is arraigned, and
their authority and dignity effentially compromiſed.
You cannot, by the rules of the houſe, refcind the vote
for excluding Mr. Wilkes, in the fame feffion in which
it has paffed, and I know but two other methods
which you can purfue. They have both been the ſub-
ject of common converſation, and are both almoſt
equally exceptionable. You may refufe to iffue a new
writ, and by that means deprive the freeholders of this
county of the right of choofing any other repreſenta-
tive, poffibly for the whole term of the prefent parlia-
ment. There are ſome examples of this kind in the
cafe of corrupt boroughs, where this houfe has fuf-
pended the iffuing a new writ for the remainder of a
feffion, as a puniſhment upon the voters for the moſt
flagrant bribery; but I cannot believe, that it will be
thought juft or advifeable to inflict the fame puniſh-
ment during the term of a whole parliament, inftead of
a fingle feffion, upon the electors of a great county, for
no crime, except that of rechoofing a man whom this
houſe had cenfured and expelled. If you do not adopt
this proceeding, the other alternative will be to bring
into this houſe, as the knight of the fhire for Middle-
fex, a man chofen by a few voters only, in contradic-
tion to the declared fenfe of a great majority of the
freeholders
[ 34 ]
freeholders on the face of the poll, upon a fuppofition,
that all the votes of the latter are forfeited and thrown
away on account of the expulfion of Mr. Wilkes. If
ſuch a propofition fhall ever be brought before us, it
will then be time enough to enter into a full difcuffion
of it; at prefent I will only ſay that, I believe there is
no example of fuch a proceeding, that if it fhall ap-
pear to be new and unfounded in the law of the land,
nay, if any reaſonable doubt can be entertained of its
legality, the attempt to forfeit the freeholders' votes in
this manner will be highly alarming and dangerous.
Are theſe then the proper expedients to check and to
reſtrain the ſpirit of faction and of diforder, and to
bring back the minds of men to a ſenſe of their duty ?
Can we ſeriouſly think they will have that falutary ef-
fect? Surely it is time to look forwards and to try
other meaſures. A wife government knows how to
enforce with temper, or to conciliate with dignity, but
a weak one is odious in the former, and contemptible
in the latter. How many arguments have we heard
from the adminiftration in the courfe of this feffion,
for conciliating meaſures towards the fubjects in the
American colonies, upon queftions where the legiſlative
authority of Great Britain was immediately concerned?
And is not the fame temper, the ſame ſpirit of conci-
liation, at leaſt equally neceffary towards the fubjects
within this kingdom, or is this the only part of the
king's dominions where it is not adviſeable to ſhow it?
Let not any gentleman think, that by conciliation I
mean a blind and baſe compliance with popular opi-
nions, contrary to our honour or juftice; that would
indeed be unworthy of us. I mean by conciliation, a
cool and temperate conduct, unmixed with paffion, or
with prejudice. No man wiſhes more than I do to ſtop
exceſs on either fide, or is more ready to refiſt any
any
tumultuous violence founded upon unreaſonable cla-
mour. Such a clamour is no more than a fudden guft
of
2
[ 35 ]
E
of wind which paffes by and is forgotten; but when
the public difcontent is founded in truth and reaſon;
when the ſky lowers and hangs heavy all around us, a
ftorm may then arife, which may tear up the confti-
tution by the roots, and fhake the palace of the king
himſelf. As for me I have given my opinion, and I
have choſen to do it without concert or participation.
I can affure the houſe, that fome of my neareſt friends
did not know the part which I fhould take. I deter-
mined not to tell it, that I might keep myfelf unen-
gaged and free to change it, if I thought proper, du-
ring the courſe of the debate. I do not mean by this
to fay, that I came into the houſe without having
formed an opinion; on the contrary, I had weighed
and confidered it thoroughly, and my judgment upon
it is the reſult of my moft ferious deliberation. I
know not what others may think, or who will act with
me upon this occafion. Thoſe who were once my friends
may have adopted other ideas and other principles, and
even thoſe who ftill continue to be fo, may poffibly
* entertain different fentiments from mine upon this fub-
ject. That confideration muſt not prevent me from
doing juſtice, but God forbid, that they fhould not
exerciſe the ſame liberty, and follow their opinions, as
I do mine. They know that I have not aſked one of
them to attend during any part of this bufinefs, nor
have I defired their concurrence. Many of them fit
around me, and I appeal to them for the truth of what
I have faid. Thus far then I have difcharged my duty,
with no other view, but to do that which appears to
me moſt conformable to the ends of juftice and of pub.
lic welfare, moft for the fafety and honour of the king
and the kingdom. Whilft my little endeavours can
contribute but a mite to theſe great purpoſes, I will
continue to exert them as freely as I have now done;
but whenever the violence or corruption of the times,
either within or without theſe walls, will not permit me
VOL. III.
C
to
毕
​[ 36 ]
to follow thoſe dictates uncontrouled, I will leave this
place and retire from an affembly, which can no longer
be called a free parliament. Many extravagancies com-
mitted by Mr. Wilkes and his adherents have been
urged, and even magnified, as if they could juftify any
extravagance of power to reprefs them. It has been
afked, are thefe offences to pafs unpunished, and are we
not to vindicate our own credit, as well as that of the
government, by expreffing our abhorrence of them?
Have I been an advocate for their paffing unpuniſh-
ed? Have I ftopped or neglected to enforce the cen-
fure of the law? Was he not profecuted, tried and
convicted, and when he left the kingdom to avoid his
fentence, was he not outlawed? Let me go farther.
Had Mr. Wilkes ventured to return home whilft I
had the honour to be entrusted with the executive
powers of the ftate, he fhould not have remained out
of cuftody four and twenty hours, without fubmitting
himſelf to the juftice or the mercy of the king, whom
he had fo grievously offended. He knew it, and
therefore did not return till he met with more encou-
ragement. This furely was not the behaviour, nor is
this the language of one of his partizans. Compare
it with the conduct of thoſe who now hold the chief
office and authority of the government, and who call
fo loudly for vengeance and for punishment. Did
they not give their fupport to him abroad after his
conviction and outlawry, and keep up an intercourſe
and correfpondence with him, even whilft they were
the king's minifters? Was he not permitted to return
to England, to appear publicly in this capital, for
months together, and to walk daily under the windows
of the palace unmolefted, unconfined, and unpuniſh-
ed? They could not plead ignorance of the feditious
libel againſt the king and both houfes of parliament,
nor of the three impious libels, contained in the Effay
upon Woman, for all of which he had been legally
tried
[ 37 ]
tried and convicted. Why then was he not called to
his fentence, and the laws carried into execution,
agreeable to the folemn affurances given by the king
in anſwer to both houfes of parliament, when they
jointly addreffed his majefty to carry on this profecu-
tion? What was become of the executive power, and
how were thoſe who were inveſted with it juſtified in
ſuſpending the ufual courfe of the law, against the
expreſs direction of the king, enforced by the recom-
mendation of both houſes of parliament? What were
the inducements at that time to fuch, extraordinary fa-
vour and lenity, and what are now the motives for
this extraordinary refentment and ſeverity? The firſt
circumſtance which feems to have awakened their at-
tention, was Mr. Wilkes offering himſelf a candidate
for the city of London and the county of Middlefex,
againſt the inclination of the miniftry: but the pro-
ceedings against him were then carried on like the
feeble efforts of men not half awake, or nɔt half in
earneſt. Many days paffed over before the officers of
the crown would venture to execute the common pro-
cefs of the law for apprehending him; and to obviate
this difficulty, they had at laft recourfe to the fhame-
ful expedient of ftipulating with Mr. Wilkes himſelf,
the terms upon which he would confent to be taken
into cuftody. To follow that precedent you ought
now at leaſt to afk him, upon what terms he will con-
fent to be expelled. Perhaps, if properly applied to,
he may condefcend to this requeft as graciously as he
did to the former, and as voluntarily as he furrender-
ed himſelf a prifoner, when he was taken with im
punity out of the hands of the officers of juftice by
twenty perfons, almoſt in fight of the court of king's
bench then fitting in Weſtminſter hall. Such was the
firm and ſpirited conduct by which the fupreme au-
thority of the laws was fupported and preferved. The
outlawry was reverfed for an error fo trivial, that the
C 2
court
[ 38 ]
court of king's bench declared when they reverfed it,
that they were almoft afhamed to mention it. When
the judgment was given, the first law officer of the
crown in demanding it did not think proper to enforce
the penalty according to cuftom, and it was therefore
milder than ufual. In the firft feffion of this parlia-
ment, Mr. Wilkes was returned a member of it, and
fuffered to continue without any notice taken of him!
The beginning of the prefent feffion paffed in the
fame manner. What is it then which has rouſed the
languid fpirit of adminiftration, and called down
the vengeance of the houſe of commons of Great
Britain? Not the feditious and dangerous libel of the
North Briton, not the impious libels of the Effay upon
Woman, not all the extravagancies which have been
urged in this day's debate; all theſe were known be-
fore, and were not deemed fufficient for the exertion
of the common cenfures of the law; but he has fince
prefumed to write an infolent libel upon a fecretary
of ſtate. This it feems is that capital and decifive of-
fence, which is to raife our indignation to its higheſt
pitch. The honour of our king, and the reverence
due to our religion, were paffed over in filence and
forgotten. They are now to be thrown into the fcale,
to make up the weight, and to induce us to efpouſe
the quarrel of a minifter. To accomplish this im-
portant purpoſe, we are to violate not only the forms,
but the effence of our conftitution. The houſe of
commons is to blend the executive and judicial powers.
of the ftate with the legislative, to extend their jurif-
diction, that they may take upon themſelves the odium
of trying and puniſhing in a fummary manner, an of-
fence which does not relate to themſelves, but is un-
der the immed ate cognizance of the courts of law,
In the exerciſe of it they are to form an accumulative
and complicated charge, which no other court, nor
even, they themselves, have ever admitted in any other
inftance.
1
[ 39 ]
inftance. They are to mingle up new crimes with
old, and to try a man twice by the fame judicature
for the fame offence. They are to transfer the cenfures
of a former parliament, contrary to all precedent, and
to make them the foundation of the proceedings of a
fubfequent one. They are to affume a power to de-
termine upon the rights of the people, and of their re-
preſentatives, by no other rule, but that of their own
inclination or difcretion; and laftly, they are to at-
tempt to perſuade mankind, that they do all theſe
things to vindicate their own honour, to exprefs their
reſpect for their king, and their zeal for the facred
names of their God, and their religion. Thus are we
to add hypocrify to violence, and artifice to oppref-
fion, not remembering, that falfhood and diffimula-
tion are only the wrong fides of good fenfe and abili-
ty, which fools put on, and think they wear the robe
of wiſdom. If the houſe of commons fhall fuffer
themſelves to be made the inftruments, in fuch hands,
to carry fuch a plan into execution, they will fall into
the loweſt ſtate of humiliation and contempt. An in-
dividual indeed may exempt himſelf from the diſgrace
attending it, but the diſhonour and odium of it will
cleave to that affembly, which ought to be the conftant
object of public reverence and affection. I have done
my duty in endeavouring to prevent it, and am there-
fore careleſs of the confequences of it to myſelf. I
expect that what I have faid will be miſreprefented
out of this houſe, perhaps in that place, where of all
others a mifreprefentation of what paffes here will be
moſt criminal. Thoſe who have heard me muft know,
that I have neither invidiously aggravated, nor facti-
ouſly extenuated Mr. Wilkes's offences. If he hall
commit fresh crimes, they will call for fresh puniſh-
ment, the law is open, that law which is the fecurity
of us all, to which Mr. Wilkes has been, and certain-
ly will be amenable. Let him undergo the penalties
of
C 3
[ 40 ]
of that law, whatever they may be, but not of an un-
defined, diſcretionary power, the extent of which no
man knows; the extent of the mifchiefs arifing from
it, to every thing which is dear to us, no man can
tell.
I feel that I have troubled the houſe too long, but
this is no common queftion, and I truft, that the fame
indulgence which has been my encouragement, will
be my excuſe and juftification.
A L
TO THE RIGHT
ETTER
HONOURABLE
GEORGE GRENVILLE,
OCCASIONED BY HIS PUBLICATION OF THE SPEECH
HE MADE IN THE HOUSE OF COMMONS ON THE
MOTION FOR EXPELLING MR. WILKES, FRIDAY,
FEBRUARY 3, 1769. TO WHICH IS ADDED, A LET-
TER, ON THE PUBLIC CONDUCT OF MR. WILKES,
FIRST PUBLISHED NOVEMBER 1, 1768. WITH AN
APPENDIX.
'Tis all a Libel-Grenville, Sir, will fay-
Not yet, my friend! to-morrow 'faith it may';
And for that very cauſe I print to-day.
SIR,
THE
POPE.
HE world is greatly indebted to your indul-
gence for the publication of your ſpeech on the
motion for expelling Mr. Wilkes, Friday, February
3, 1769, and the affiduous labour of the laft eight
months to correct and polish the only Ciceronian
oration you have ventured to the prefs. You have in
particular helped the invention of penfioner Johnfon
for many pages in a future magazine, or volume of
the
[ 41 ]
VA
>
the parliamentary debates, and faved his bookfeller
two or three guineas. The fubject, I must own, me-
rited all your care and attention. There is no harangue
you ever made in parliament of fo important a nature,
except in the fingle cafe of general warrants, on which
you again enlarge much on the prefent occafion. The
affair of Mr. Wilkes interefts indeed every member of
the lower houſe and every elector in the kingdom, but
a general warrant may carry horror and cruelty to
every family and every individual in the island, for
it can be confidered in no other light than as a decla-
ration of war againſt the people at large. Your ha
rangues on that fubject in February 1764, might not
perhaps be ſo popular, but they would be ſtill more
curious and interefting even than the prefent fpeech,
only I fear they would take more years than the other
has months to render them in any way palatable to the
public. I was in the gallery, fir, during the whole
debate on the third of laft February, and I recollect
your arguments, which were fenfible and cogent, al-
though I do not remember all the melliti verborum
globuli of the fpeech publiſhed laft Monday. The
warmth of the colouring, the glowing touches, and
foft graces have grown fince under your forming hands,
or thoſe more elegant of a new friend, on whom na-
ture has laviſhed all the powers of the fublime and beau-
tiful, or perhaps they may be the firft fruits of the
Grenvillian family compact.
The prefent production has indeed no fmall degree
of literary merit, and if I did not hear you, I read
you through with fatisfaction and eaſe. I afterwards
went to ſee my old friend, the ftate prifoner, at the
king's bench. I enquired if he had feen your ſpeech.
He told me," that he had read it with great care;
"that he confidered it as a direct act of hoftility on
your part; that as to the vote you gave in parliament
againft his expulfion, he had not the obligation of
66
66
C 4
" that
[ 42 ]
"that vote to Mr. Grenville; that the Speech was
"crowded with falfhoods;, that he had always detefted
"you as a minifter, but defpifed you as a private
"man; and that he ſhould never think it worth his
"while to take the leaft notice of your illiberal abuſe.”
This he declared to be his fixed purpofe, and it is
well known how invariable he is in all his refolutions.
But although Mr. Wilkes determines to paſs over this
feeble attack of an enemy, who fights only with the
weapons of malice and falfhood, I fhall not fuffer
fuch an injury done my friend to paſs unnoticed or
unpuniſhed. I now call upon you, fir, to justify
yourſelf at the candid and impartial, but awful, tri-
bunal of the public. The charge will be direct and
pointed. Your anſwer ought to be plain and full.
The injurious treatment Mr. Wilkes has received
from you did not begin with the publication of laft
Monday. You have formerly acted a moſt unjuſt and
wicked part with refpect to him, although with your
natural cowardice and cunning, in a fafe and covert
manner. After the mock abdication of Lord Bute in
April 1763, it was given out by authority to the fo-
reign minifters, and to all concerned in public affairs
at home, that the king had placed his government
in the hands of Mr. Grenville and the Earls of Hali-
fax and Egremont, who in all matters of moment
were to act in conjunction. The famous triumvirate
were ordered to agree, and at no time to fail concur-
ring in every point of importance, but never to open,
except like a parish cheft, with the three keys together.
This happened in the middle of April, and the end
of the fame month the general warrant figned by Lord
Halifax iffued, not only without any information upon.
oath, but without the leaft information whatever, ex-
cept the publiſher's name. You did not indeed fign
the general warrant, nor the warrant of commitment
to the Tower, in which both the fecretaries concurred,
becauſe
1
[ 43 ]
}
•
becauſe that bufinefs was not in your department as
firſt lord of the treaſury, and chancellor of the ex-
chequer; but you adviſed, approved, and afterwards
juftified the meaſure both in and out of parliament.
The whole plan was your own, and every part of it
was carried into execution te confilium, et tuos præbente
dolos. You have in this manner artfully escaped the
profecution, which Mr. Wilkes carried on againſt the
two fecretaries of ftate, your coadjutors and affociates
in power, but your guilt is equal. The low cunning
which marks your character, ſaved you here, and has
always faved you through life. Your conduct with
reſpect to the late felonious peace was alike cautious,
fubtle, and well calculated for your own private ſafe-
ty. You quitted the poft of fecretary of ftate not
three weeks before even the preliminaries of peace
could be figned, and you ridiculously accepted Sir
Edward Hawke's prefent office of firft lord of the ad-
miralty, becauſe you knew how baſe and diſhonour-
able the conditions of the peace were, and forefaw
the probability of the refentment, which a brave, in-
jured people have at length fhewn againſt every perfon
concerned in that treachery. I do not charge the
late treaty as your act, but I accufe you as having in
the cabinet and in parliament juftified even the preli-
minary articles, although the Eaft India company
would have been infallibly ruined by a fingle article
of this fallacious and baneful negociation, for I will
venture to quote the late martyr, the North Briton,
No. 45. Afterwards you voted for the entire appro-
bation of the peace of Paris. Lord Bute in the houſe
of lords gloried in that public felony againſt the
people as his act, and indeed nihil fibi ex iſta laude cen-
turio, nihil præfectus, nihil cobors, nihil turma decerpit.
When that ſcene of iniquity was fully compleated,
and Lord Bute affected to retire, you quitted your
fea-ftation, and fucceeded him in the treaſury, as you
did
[
44 ]
did before in the office of fecretary of ftate for the
northern department. You then held the public purſe,
Philip Carteret Webb was your folicitor and chief
agent, and Carrington continued king's meffenger and
pay-mafter of the crown evidence. You talked us to
death about ceconomy. You really practifed it in
private, while you aſtoniſhed us with the profuſeneſs
of the public expence, and difplayed a perfecuting
ſpirit and rage againſt all the friends of liberty beyond
the virulence of the envenomed Scot himſelf.
There is, fir, in almost every part of your fpeech
a rancour and malevolence againſt Mr. Wilkes, which
which has betrayed you into a variety of grofs mif-
takes, and palpable falfhoods. Did you mean "to
gratify a private and perfonal refentment for the
"abufe Mr. Wilkes has fo liberally (as you affert)
"thrown upon you?" page 5. If you did, you have
accompliſhed it at the expence of honour, truth, and
your own reputation. The world fhall judge. You
fay in page 8, that he (Mr. Wilkes) was tried and
"convicted for being the author and publiſher of the
"three obſcene and impious libels, &c." You re-
peat the accufation, page 14, " with regard to the
"three obfcene and impious libels, which were writ-
"ten by him." I have examined your charge with
an office-copy of the ſecond ſentence paffed on Mr.
Wilkes, and I find it abfolutely groundleſs. There
is not a fyllable of author or authorship in any part of
it. The words are, "being convicted of certain
"trefpaffes, contempts, and grand miſdemeanors, in
σε
printing and publiſhing an obſcene and impious libel,
"intitled, An Effay on Woman, and other impious
libels in the information in that behalf fpecified,
"whereof he is impeached, &c." I may now appeal
to the impartial public, if truth is not here fhame-
fully violated by you. Is this "that juftice which is
" due
[ 45 ]
❝ due to every man, and which we ought to be more
"particularly careful to preſerve, in an inftance where
"paffion and prejudice may both concur in the vio-
<lation of it?" page 8. I am afraid we not only fee
paffion and prejudice, but the baſeneſs and malignity
of a heart, not an atom of which remains uncankered-
But perhaps fince I have fearched, the record, being
in the king's-bench, has been altered. In that cafe,
and in that only, I am ready to afk your pardon.
The fame falſe repreſentation is extended to the
North Briton, No. 45. You fay, "the next article is
"that of the feditious libel, the North Briton, for
which the author and publiſher was defervedly pro-
"fecuted, tried and convicted, five years ago," page
15, and "when he (Mr. Wilkes) wrote that feditious
libel against the king, and both houfes of parlia-
"ment," page 7. Now, Sir, I again appeal to the
fame irrefragable proof, the record of the court. That
record only ſtates, being convicted of certain trefpaf-
❝fes, contempts, and grand miſdemeanors in printing
" and publiſhing a feditious and fcandalous libel, en-
"titled, The North Briton, No. 45, whereof he is
"impeached." In both cafes therefore the accufation,
trial and conviction as to the authorship are entirely
fabricated, or rather forged, by Mr. George Gren-
ville.
There remained, Sir, but one other thing, on which
you could try your hand, and it has not eſcaped you.
I mean the petition of Mr. Wilkes the laft winter to
the houſe of commons. Your words are," it was but
<<
a few days ago that I fpoke and voted to reſtrain
"Mr. Wilkes from entering into the greater part of
"his petition, becauſe the fubject matter of his com-
"plaint had been fully heard, and the parties to it
❝ duly acquitted by the laſt houſe of commons," page
16. A more direct falfhood I believe never came from
the
1
[ 46 ]
the prefs, or even difgraced St. Stephen's chapel. I
defire to know if the late houfe of commons, did fully
hear the complaint of the evafion of the babeas corpus,
or the cloſe commitment of their member for three days.
without pen, ink, or paper, or the permiffion of feeing
any perſon but his gaolers, although charged only with
a miſdemeanor, or the breach of privilege by ferving a
member of parliament with a fubpoena. Was either of
theſe queſtions once agitated in the laft houfe of com-
mons? The minority ought to take ſhame to them-
felves that queftions of fuch magnitude never were even
mentioned in the houfe, except once by Mr. Wilkes
himſelf, on the first day of the feffion, and the only
day his ill health permitted him to attend. Many
other complaints in his petition have occurred fince,
and therefore could not be ſtated before; fuch as, that
counter-notices, figned fummoning officer, were ſent
"to ſeveral of his jury only the day before the trials, and
"that the papers feized under the general warrant were
"produced as evidence on his trials." Was either of
theſe circumſtances even ſtated to the late houſe of
commons, ſo far from being fully heard, and yet they
make a part of this very petition? You add that
"the parties were duly acquitted by the laft houſe of
"commons." This too is a perverfion. The journals
only fay, "that the complaint (of the impriſonment of
"Mr. Wilkes's perfon, the plundering of his houſe, the
feizing of his papers, &c.) againſt thoſe worthy gen-
"tlemen, Philip Carteret Webb, Robert Wood, John
66
<<
Money, Robert Blackmore, and James Watfon, be
difcharged," Journals, vol. 29. page 843. An honeſt
English jury however nobly vindicated the rights of
the people. They had at heart the liberty of the fub-
ject, and defpifed the example of meannefs and treachery
given them by the majority in a place,
Where crowns of freedom, by the fathers won,
Drop leaf by leaf from each degen'rate ſon.
The
[ 47 ]
The fame Mr. Wood was not duly acquitted by a jury
of his peers.
He was found guilty, fined one thouſand
pounds fterling and the cofts of fuit.
You obferve, "I cannot agree with thofe, who think
"that the papers relative to it (the Effay on Woman)
"were obtained by thofe, who proſecuted him in any
" undue or improper manner. The contrary has ap-
❝peared by Mr. Wilkes's own evidence a few days ago.
"That profecution was begun in another place, and
"I had nothing to do with it; but in juftice to thoſe
"who were concerned, I muſt ſay, that there was not
"the leaſt foundation for all that calumny that has
"been propagated with regard to the manner of ob-
"taining them; for the truth of which I appeal to the
"examination, which the houſe has ſo lately made on
"Mr. Wilkes's petition upon that fubject," page 17.
As you have appealed to that examination, and declare
there was not the leaft foundation for that calumny, I
fhall tranſcribe the evidence of Mr. Wilkes's fervant,
Michael Curry, at the bar of the houſe of commons,
on the laſt of January 1769, although what he faid
there is a good deal foftened from what he ſwore at the
manfion-houſe on the third of Auguft preceding, be-
fore he had been foftened himſelf.
Curry declares at the bar," that he had exprefs
"orders to print only twelve copies, to deliver them to
"Mr. Wilkes himſelf, and not to fhew any part of
"them to any perfon whatever; that however he
"ſhewed them to Haffal, Haffal to Faden, Faden to
"Kidgell, Kidgell to Lord March, &c. that one
"Farmer offered him money, that Faden defired a
copy, faid he would make it worth his while, that
"Faden ſtrongly repeated, it was to ferve fome
"people, who would make it worth his while, that
"he had many fuch offers after, that there was a cla-
کی
"
mour that he fhould be profecuted for felony, (in
robbing M, Wilkes of that copy) that he applied
66 to
[ 48 ]
"to fee Mr. Wilkes, but was refufed; that he, Webb,
"Kidgell, Faden, Farmer, and others met at the
"Horn tavern, and other places; that the report
"gaining ground that he ſhould be profecuted for
"felony, he went to Faden, and ſurrendered it (the
"ftolen copy) to him, that he went the fame evening
"with Faden to Webb, that Webb bid him not be
"afraid, that he (Webb) would take care of him, that
"he lived in Webb's houfe a week together, that he
"was confined there, that they would not let him go
"out, that Webb fent him to Carrington, who regu-
"larly every week fupplied him with money, that
"Webb faid he might depend on being taken care of,
"that government would take care of him for furren-
"dering the copy, and giving the evidence againſt
"Mr. Wilkes, that Carrington declared he was ac-
"countable to government for the money he paid him,
"that he faw Lord Sandwich, who told him that he
<<
"C
might depend on any thing in his power." Webb's
original letters to Haffal were likewife produced at the
bar, and proved to be his hand writing. In one of them
Webb tells Haffal to defire Curry "to put down in
writing what paffed-that they might all concur in one
ftory." Theſe are the very words of the minutes. Can
a ftronger offer be made to a fervant to rob his mafter?
Does not this give the leaft foundation for the public
opinion? It appears Curry did rob his maſter of the
Effay on Woman, that he fold it to Faden, from whom
the folicitor of the treaſury, Webb, with whom Faden
was in conſtant correſpondence, obtained it. Lord
Sandwich had it from the folicitor, and then it came
into the houſe of lords, and the king's bench, undoubt-
edly to the more real concern of Mr. Wilkes than of
any man in the kingdom.
During all theſe proceedings you continued at the
head of the treaſury, Webb was your folicitor, and
Carrington the confidential meffenger and pay-mafter.
He declared at the bar, that "the money Curry received
came
[ 49 ]
"came from the king's treaſury chamber," and that
Webb
"
gave him
an authority under his own hand for
"the feveral fums paid to Curry." Carrington's evi-
dence proves that the money Curry received was public
money, for which the firſt commiffioner of the treaſury is
accountable. I therefore neither wonder at your nega-
tive to Mr. Wilkes's being fuffered to go into the greater
part of his petition, which refpected general warrants,
the feizure of papers, the evaſion of the habeas corpus,
and other enormities of your miniftry, nor at your
joining even with the preſent adminiſtration in the de-
nying him "all fuch accounts as have been paſſed,
"declared, or received from Philip Carteret Webb,
Efq; late folicitor of his majeſty's treaſury, fince
"Midfummer 1762, from the auditors of the impreft,
or their deputies." Innocence and honour would
have whiſpered you to ſecond the motion of Sir Joſeph
Mawbey, and even to fupplicate the houſe, that all
thoſe accounts might be laid before parliament, but
conſcious guilt, alarmed at the confequences of it, made
you tremble and oppofe. So much for the confpiracy
of Meffieurs Grenville, Webb, Carrington, Kidgell,
Curry, Haffal, Jennings, Farmer and Faden. Un-
ſpotted names and memorable long!
66
$6
You are pleafed to affert, "that Mr. Wilkes was tried
"and convicted by a favourable jury," page 8. A fa-
vourable jury, which aſked no one queſtion, and only pro-
nounced the ſingle word guilty, is abfolutely nonfenfe.
It is only to be paralleled by Lord Mansfield's declara-
tion on the reverfal of Mr. Wilkes's out-lawry, that "he
"had the ſtrongeſt inclination in favour of the defen-
"dant." You ought to have faid that he was tried by
an illegal jury, for notices declaring that the trials were
put off, figned fummoning-officer, were fent to feveral
of the legal fummoned jury only the day before the trials,
ſo that no fair jury of his countrymen have pronounced
any judgment on him. You knew this circumftance,
and
[ 50 ]
and therefore were greatly criminal in denying Mr.
Wilkes the juſtice of going into this part of his peti-
tion. Was the jury which found Mr. Wilkes guilty
of publiſhing an unpubliſhed poem, a favourable, or
even a conſcientious, jury?
«
You declare that it was for a libel certainly not
"leſs feditious or criminal than Dr. Shebbeare's,"
page 8.
What you think feditious or criminal, you
only can determine. As to the Sixth Letter to the
People of England, it was charged in the information
to be falſe, as well as wicked, &c. and was proved fo
to the fatisfaction of all mankind. Was the word
falfe in the information againſt the North Briton, No.
45.
The charge of falfhood was not made againſt any
part of that paper. If it had, and Mr. Wilkes conti-
nued in a ſtate of health to have directed his own de-
fence, he would have fubpoenaed you to prove various
articles in it, particularly that important paffage, "the
"large debt on the civil lift, already above half a
<c year in arrear, fhews pretty clearly the tranfactions
"of the winter." Did you learn thofe manoeuvres
from the great father of corruption, Sir Robert Wal-
pole, of whom you fpeak with fuch reverence? You,
Sir, were in the houſe of commons on the first day of
the feffion in 1763. Mr. Wilkes there maintained that
every line of the North Briton, No. 45, was founded
on truth. He challenged Lord North and all the
miniſtry, to point out a fingle falfhood. Did his lord-
ſhip attempt it? Did you offer a word in anfwer to
fo direct and bold a challenge? You did not you
could not. What did the houſe do? The very ma-
jority accuſed of that corruption expelled the uncor
rupt fenator, whom they thought to be the accufer,
and in that manner only juſtified themſelves, avenged
"the indignity offered to them by one of their own
"members," page 15, and puniſhed "the particular
"offence committed against them," page 16. I will
venture
[ 51 ]
venture to aſk even you, Sir, who have not entirely for-
got,though you wish we ſhould, all your former pleadings
at the Old Bailey, whether indeed a ſhort paper, which
did not contain one line untrue, is equally criminal with
a volume, which fcarcely contained a fingle truth,
which traduced the Revolution, afperfed the memory
of King William III. grofsly vilified King George I.
and II. and baftardized the whole royal family. Is
the North Briton, No. 45, with the long lift of hard
ill-founding adjectives, malicious, feditious, &c. e-
qually criminal with ſuch a paper? Lord Mansfield
declared in Weſtminſter-hall, that "Dr.Shebbeare by
"that letter approached the nearest to high treafon
"without actually committing it, of any paper he ever
"read." The trial was in 1758, yet fo fhort a time.
afterwards as during your adminiſtration in 1763 this
man was penfioned, and ftill continues in the pay of
government. I ſhall only mention one other particular
on this fubject to fhew how difingenuous you are in
every the minuteft circumftance. When you ftate how
much more ſeverely Dr. Shebbeare was treated than
Mr. Wilkes, you mention that the doctor was fined,
pilloried, and imprifoned, but you carefully conceal
from us, that his fine was but 51. Mr. Wilkes was
fined 500l. only for the North Briton, No. 45.
1
I agree entirely with you, Sir, that the "motion for
"expelling Mr. Wilkes was not unexpected," page 4.
It had been long forefeen, and was very generally
known after the first week of the laft feffion. When
Mr. Fitzherbert's vifit to the king's-bench proved in-
effectual, and Mr. Wilkes's petition to the houſe of
commons was prefented on the following day, it was
understood that he was marked out as an immediate
facrifice, that the minifter's power was held, even for
the winter, by the tenure of carrying two points, which
the court had at heart, the expulfion of Mr. Wilkes,
and paying the enormous debts of the civil lift. The
VOL. III.
D
laft
+
[ 52 ]
1
laft was not half fo earneſtly urged as the former, for
much additional ill-humour and anger againſt that
gentleman had been conceived from his rejecting every
intrigue and negociation, male and female, for his
pardon, and repeatedly declaring to a great man's
agent, when he was defired to name his own conditions,
that he never would accept a pardon, unleſs it came
entirely unclogged, and unconditional, and that he
would owe it only to his fovereign's grace and favour.
Such an unconquerable fpirit of freedom even in prifon,
and the juſt defence of his own innocence, were not,
and never will be forgiven. They will create him dif-
ficulties and diftreffes from the fame quarter, with
which he will struggle as long as he lives.
You declare that "had Mr. Wilkes ventured to re-
turn home, whilft you had the honour to be en-
"trufted with the executive powers of the ftate, he
"ſhould not have remained out of cuftody four and
66
twenty hours, without fubmitting himſelf to the
"juftice or the mercy of the king, whom he had fo
"grievously offended," page 36. Such is the wretched
cant of minifters, whenever they are attacked them-
felves, but the impoſture is too ftale to paſs. It is
impoffible to fuppofe the king was grievously offended,
becauſe the minifters were treated according to their
exceeding demerits, when at the fame time the utmoſt
reverence was fhewn to his facred character. In that
very paper he is faid to be "a prince of fo many great
"and amiable qualities, whom England truly reveres,'
and it is added, "the perfonal character of our pre-
"fent amiable fovereign makes us eafy and happy that
"ſo great a power is lodged in fuch hands." Might
not therefore the North Briton, No. 45, after fuch juſ-
tice done to the character of the fovereign, fafely fay
of minifters, "the Scotch miniſter has indeed retired.
"Is bis influence at an end? or does be ftill govern
"by
by the three wretched tools of his power, who to
"their
">
[ 53 ]
"their indelible infamy have ſupported the moſt odious
"of his meaſures, the late ignominious peace, and
"the wicked extenfion of the arbitrary mode of ex-
cife ?" but the minifters, and Mr. Grenville in par-
ticular, one of the three, were indeed justly as well as
grievouſly offended, and therefore he again in his speech
very indecently introduces the facred perfon of the
king to avenge his own private, and perſonal quarrel.
Neither the juſtice nor the mercy of the king were in
any part of the buſineſs once compromiſed. The very
cauſe of all this dire difcord was merely
Junonis gravis ira, et inexfaturabile pectus,
Quam nec longa dies, pietas nec mitigat ulla.
But let me afk, did you no', Sir, adviſe and ſupport
Lord Bute's two favourite meaſures, the peace, and the
excife, and did not the moft grievous and oppreffive
part of that duty on cyder and perry continue till the
too ſhort-lived adminiſtration of the virtuous Lord
Rockingham. The ſubject was then indeed at length
relieved, but the petitions of the city of London to
the king, and to the other branches of the legiſlature,
were preſented during Lord Bute's miniftry, in which
whole period, and the fubfequent triumvirate, the op-
preffion continued. This could not have happened
but from the wicked artifice of Lord Bute to infinuate
at first to his mafter the neceffity, and of you after-.
wards to perſuade the continuance of that exciſe, by
which the private houfes of every peer, gentleman,
freeholder, and farmer, were made liable to be entered
and fearched at pleaſure by an infolent exciſeman.
ſhall ſtate the conduct of Henry IV. of France on a
fimilar occafion. The example will carry the greateſt
weight, for it is given us by confeffedly the moſt brave,
humane, magnanimous, and gallant gentleman of all
modern princes, whofe godlike deeds and fad fate ftill
draw tears of gratitude and pity from every lover of
D 2
I
his
[
54 ]
ļ
his country in France. It will ſhow how happy a
prince is with a wife and honeft minifter, like Sully,
and how much to be lamented when in the power of
one, who wants wiſdom, like Lord Bute, or affection
for the people, like Mr. Grenville. That king had
been perfuaded to lay an additional duty on wine, to
be levied much in the way of your late excife. The
people in general murmured exceedingly, and the par-
liament of Paris refuſed to regifter the new edict. The
king was at Fontainebleau. It became neceffary to
hold a lit de juftice, that the fovereign in perfon might
cauſe the edict to be regiſtered in his court of parlia-
ment, as it is always called in France. He therefore
came to Paris, but was received by the people, whom
he tenderly loved, in fo cold a manner and with fo
profound a filence, contrary to what he had ever known,
that he could not avoid exclaiming to Sully, Mon ami,
pourquoi eſt-ce qu'on ne crie, Vive le Roy? Sully honeſtly
explained to his majesty the nature of the projected new
tax, and the general diſcontent of the people, upon
which the king only ſaid, Mon ami, retournons-nous, and
immediately went back to Fontainebleau. The edict
was never regiſtered, nor the tax collected. The
fooliſh pageantry of the lit de justice was fucceeded by
a moſt affecting ſcene, by the loudeft acclamations, by
the tears and bleffings of the whole grateful capital.
Such was the conduct of the great Henry IV.; and
fimilar would undoubtedly have been that of George III.
on occafion of the city's petition to him againſt the
exciſe, if the favourite, or his minifter, had really re-
fembled Sully, or even the portrait of him drawn for
Mr. Grenville by the author of The Prefent State of
the Nation, or for Lord Bute by the Chevalier D'Eon,
in the Confiderations Hiftoriques et Politiques fur les
Impots.
}
You endeavour as much as you can to take off the
odium of general warrants, by obferving that they
have
[ 55 ]
have had "an hundred years practice, under the eye
"of the greateſt lawyers, before the fupreme courts
"of juſtice, without being ever queftioned in one
"ſingle inſtance," page 7. You did not advert, that
you were paying Mr. Wilkes the higheft compliment,
as the firſt perſon, who dared to oppofe the long-
ufurped powers of government, and to withstand the
greateſt lawyers as well as moſt arbitrary miniſters,
who had braved all their menaces, and laughed to
fcorn their threats of vengeance, in order to redeem
his countrymen from oppreffion and ſlavery, to reſtore
the true principles of law itſelf, and to enforce the
moſt important article in magna charta. Nullus liber
bomo capiatur, vel impriſonetur, aut diffeifiatur de libero
tenemento fuo, vel libertatibus, vel liberis confuetudinibus
fuis, aut utlagetur, aut exulet, aut aliquo modo deftruatur;
nec fuper eum ibimus, nec fuper eum mittemus, nifi per le-
gale judicium parium fuorum, vel per legem terre, ch.
xxix. The prefent lord chancellor declared from the
bench, "that a general warrant is unconftitutional,
"illegal, and abfolutely void, and that he ſhould al-
66 ways confider it as a rod of iron for the chaſtiſe-
ment of the people of Great Britain," and his lord-
fhip judicially condemned the feizure of papers, but
you, fir, long prevented any parliamentary cenfure in
either cafe, although you knew that fuch was the
ufage of our anceſtors in all points of that magnitude,
when the public liberty was concerned; and till Lord
Rockingham's time we do not find the leaft mark of
the difapprobation of general warrants, or the ſeizure
of papers in the houſe of commons. You went far-
ther, as if you were determined not only at preſent to
juftify, but to encourage fuch atrocious practices in
future times. While you was firft commiffioner, you
obtained an order, which is entered in the books of
the treaſury, that all expences incurred, or to be in-
curred, on account of the North Briton, No. 45, or
66
D 3
the
[ 56 ] ·
the Effay on Woman, fhould be paid by the treafury,
fo that is probable the furviving fecretary, Lord Ha-
lifax, for having dared to iffue the general warrant,
will at last by your abufe of the power of office only
fuffer public ignominy.
All the circumſtances peculiar to the apprehenſion
of Mr. Wilkes under the general warrant you entirely
omit in your ſpeech. Was it forgetfulneſs that you
did not mention that the general warrant, under which
Dr. Shebbeare was apprehended, iffued during the
late war with France, and the other by which Mr.
Wilkes, and forty-eight other perfons, were feized, in
the time of profound peace? In your compariſon of
Mr. Wilkes's cafe with that of the doctor, you forgot
to tell us, that in the critical moment of a war with
our moſt inveterate and infidious enemy, the fixth
letter to the people of England, was calculated to in-
flame the nation by a daring affertion even in the title
page, "that the prefent grandeur of France, and the
"calamities of this nation, are owing to the influence
" of Hanover on the councils of England," and that
the North Briton, No. 45, only told the people that
Lord Bute, Mr. Grenville, and the other minifters
had betrayed the interefts of the nation at the peace,
had put a badge of flayery on us by a new and odious
exciſe, and were every hour abufing the miſplaced con-
fidence of the moſt amiable monarch in the world?
You likewife purpofely omit the civil treatment Dr.
Shebbcare experienced in the late reign, and all the
circumftances of wantonnefs, oppreffion, and cruelty
exerciſed againſt Mr. Wilkes. You did not chufe to
contraft the doctor's cafe with what a member of
parliament experienced in the prefent reign, and with
the orders given by your brutal brother-in-law and
colleague, the late Earl of Egremont, to drag him
out of his bed at midnight. Was Dr. Shebbeare kept
for
[ 57 ]
for three days a cloſe priſoner, without pen, ink, or
paper, or friend, or relation permitted to come near
him? Was he not very early after his apprehenfion
carried before Lord Mansfield, and admitted to bail,
without the leaſt difficulty, or any enquiry into the
plain defectiveneſs of that general warrant? But Dr.
Shebbeare had only injured the king and the nation :
Mr. Wilkes was fuppofed to have attacked the minif
ters, and known to hate the favourite. I believe Dr.
Shebbeare is the only perfon, who has been appre-
hended by a general warrant, ſince Mr. Wilkes became
a public man. He had no acquaintance of any kind
with the doctor, nor was he then better informed than
the rest of the public what kind of warrant had iſſued
on that occafion. The affair of Mr. Arthur Beard-
more has been mifreprefented. The warrant againſt
him for feveral numbers of the Monitor was made
fpecial, but directed the feizing of his books and
papers. Mr. Wilkes knew Mr. Beardmore perfonally,
went to vifit him at the meffenger's houfe, and en-
deavoured to perfuade him to bring an action of faiſe
impriſonment and damages for himfelf, his clerk,
books, papers, &c. againſt Lord Halifax. This Mr.
Beardmore abfolutely refufed at that time. The
tranſaction was in November 1762. As foon as Mr.
Wilkes was releafed from the Tower in May 1763, he
began the legal proceſs againſt the two fecretaries, the
under-fecretary, Mr. Wood, &c. After the opinions
of the courts of law were known, and Mr. Wood
found guilty, Mr. Beardmore commenced his actions,
and fucceeded without any difficulty on the ground
already made. It appears therefore to be the caufe
of liberty, which Mr. Wilkes had at heart, and that
he did not act from the leaft perfonal refentment. I
think it more than probable that without his cool per-
feverance and firmnefs, neither general warrants nor the
feizure of papers had been judicially condemned to
D 4
this
[ 58 ]
C
this hour. I fhall only further add on this head that
when all his papers were feized, not a line marked
the leaſt trace of any correſpondence with the enemies
of England, or of liberty. He came pure from that
illegal teft, and almoſt unhurt from that robbery by
authority. He has no relations at Rome in the fervice
of the Pretender, nor other dangerous correfpondents
at Paris or Madrid. There is perhaps an excuſe for
the levities of thofe papers from the contagion of
great examples at that time and age, and their never
being feen before but by a few friends, men of en-
larged and liberal minds: but what apology is fuffi-
cient for the firft commiffioner of the treaſury fuffering
his folicitor and agent, Webb, to retail fuch private
papers to declared enemies, for his permitting the
publication of family anecdotes, and the general cir-
culation of many things at all times improper for the
world, at that time highly injurious to the gentleman,
on whom the robbery was committed?
c
.
>
You are pleaſed, Sir, to declare that " you cannot
"give your affent to the propofition, which has been
"made to you (for expelling Mr. Wilkes) becauſe if
you did, you ſhould thereby commit a capital in-
"juſtice”—and that "it is not conformable to the
uſage and law of parliament-or to the unalterable
"principles of natural equity-but a new and dan-
<<
gerous mode of proceeding, unfupported by any
"precedent or example in the records of parlia-
ment," page 9. I am glad to find you at length
return to the law and uſage of parliament, and I de-
fire you to explain your conduct with refpect to this
gentleman on the moſt important caſe in this age, re-
lative to the very exiſtence of the lower houfe. The
world, Sir, condems you for having in your miniſtry
betrayed the rights of the commons to the fovereign,
in a great diſpute between the crown and the people.
I need
[ 59 ]
*
""
I need not, Sir, tell you that by the law of parlia-
ment "a matter of privilege takes place of every
thing.' Mr. Wilkes had determined to complain
to the houſe of commons on the first day of the feffion
in 1763, that almoſt every privilege of parliament had
been violated in his perfon, that he had fuffered an
unjuft and rigorous impriſonment, a feizure of his
papers, &c. &c. He had before the meeting of par-
liament waited on Sir John Cuft, as fpeaker, and ac-
quainted him that a complaint of various breaches of
privilege would be made as foon as he took the chair.
He came down early to the houſe, and fecured a place
very near the fpeaker. The inftant, in which Sir
John Cuft ſtepped into the chair, Mr. Wilkes rofe
and began his complaint of violated privilege. There
was not a doubt that Mr. Wilkes firft roſe from his
feat, and even on that account he ought firſt to have
been heard, but the partial fpeaker over-ruled him,
and pointed to Mr. George Grenville, who as chan-
cellor of the exchequer faid, that he had a meffage
from the king. You, Sir, on your part infifted on
your meffage being firft delivered and proceeded upon,
before a matter of violated privilege. In this you
knowingly gave a moſt dangerous wound to the liber-
țies of the people, for no man is better acquainted
than you, that the exiſtence of the freedom of a houſe
of commons, and confequently of their conftituents,
depends on privilege. It was evident that the whole
of Mr. Wilkes's buſineſs would turn on his complaint
of breach of privilege being heard before the royal
meffage. It is known that this fineffe on your part
was concerted with Sir John Cuft before the com-
plaiſant ſpeaker took the chair. "Now nothing in
"the world could have given a ftronger proof of the
"exerciſe of this right (of privilege), than the giving
"a preference to the complaint of their own member
"to a meffage from the crown; whereas, nothing
could
[ 60 ]
$
"could feemingly invalidate this right more than the
"proceeding upon the royal matter before that of
"their member, and eſpecially, if there fhould be
"not only a doubt, but a certainty, that his was firſt
"moved. Upon the principle that privilege is to take
"place of every thing elſe, nothing is of fo much
"confequence to the community, as the relief of its
"reprefentatives, from an unjuft violence; they can-
"not do their duty as a parliament without it; for
"the parliament cannot be free, every county, city,
"and borough cannot have it's deputy without it.-
"Too much refpect cannot be fhewn to the crown
"by any man, as an individual; but it ill fuits with
the duty of reprefentatives of the people to be
"fwayed, by any motives of perfonal refpect, to part
"with a jot of their own independency and dignity
"in their parliamentary capacity."-Letter on Libels,
Warrants,&c. I will venture to declare that your conduct
on this occafion was not only a breach of your truft, as
a repreſentative of the people, but is "unfupported by
any precedent or example in the records of parlia-
"ment," page 9. "I may fafely challenge the
"gentlemen, the moſt knowing in the journals of
"this houfe, to produce a fingle precedent of a fimilar
"nature," page 10. I cannot help afking you in
(6
16
your own words, "fhall you then, who are the im-
"mediate delegated guardian of that liberty and con-
ftitution, fhall you fet the wicked example, and at-
"tempt to violate them to gratify your paffions or
46
your prejudices?" page 28. Former times have not
produced a man of fuch daring and complicated guilt,
as to give up in a houſe of commons the rights he
was fent there to fupport, to plead for an infamous
peace and an oppreffive excife, to adviſe a general
warrant and a ſeizure of papers, and at laſt to croſs
the Atlantic by a few capital, arbitrary ftrokes to
deſtroy
[61]
1
deſtroy the conftitutional rights and commerce of his
fellow-fubjects in America, yet most prepofterouſly
talking of "the difobedience of the colonies."
You venture to affert "that the paper relative to
"Lord Weymouth's letter was complained of in the
❝houſe of lords as a grofs and impudent libel, which
" it certainly is, againſt a peer of the realm, and one
"of his majeſty's principal fecretaries of ſtate," page
18. Your idea of a libel we may guefs from your
early ſtudies at the bar, from your former pleadings
at the Old Bailey, from the malignity of your natural
temper, but above all from your many years intimacy
with Lord Mansfield. I do not mean to go into the
large field of the nature of a libel, at a time, when
truth ftands trembling on the edge of law. I only main-
tain that falfhood is of it's very effence and firft con-
coction. It is therefore incumbent on you to fhew
that truth is violated in the paper you call a grofs and
impudent libel, for a true libel has the found of a ſtrange
abſurdity to the ear of every man, who is not a mo-
dern lawyer or courtier. I affirm with Mr. Wilkes,
that there is not the leaft mixture of falfhood, or
even a dash of error, in that paper, and that the bu-
finefs of St. George's-fields on the 10th of May 1768,
was a premeditated, inhuman, and cowardly maffacre
of fourteen innocent perfons, for which the people,
after having made various fruitless applications for
juftice on earth, cry aloud to heaven for vengeance.
As to it's being a libel againſt a peer of the realm, and
one of his majesty's principal fecretaries of state, there is
no privilege in a court of honour or confcience below,
nor of juſtice above, for ſuch foul deeds in any man.
The higher the ſtation of the criminal, the greater is
the offence, and the more exemplary ought to be the
puniſhment. The fame obfervation extends to the
Iriſh lord, who afterwards in cold blood could ap-
prove
[ 62 ]
prove and applaud the maffacre, and, proftituting the
authority of office and the name of his fovereign,
write a letter of thanks to merciless ruffians in the
ftile Prince Ferdinand of Brunfwick did to the moſt
brave and generous troops in the world after the glo-
rious day of Minden. Is a libel greater againſt Lord
Barrington, becauſe he is fecretary at war, and one of
his majeſty's moſt honourable privy council, when
there is not the leaft mifrepreſentation of what he has
done? or is this very letter to you, which is undoubt-
edly a libel as much as the North Briton, No. 45, is
this letter a libel more criminal, becauſe you too ſtill
continue of his majeſty's moſt honourable privy coun.
cil, when you are conſcious every word bears the
ftamp of truth? The only remark, which the impar-
tial public will make on fuch an occafion, is very na-
tural. It is to lament that the privy council, and
the great offices of ftate, are now filled by fuch men.
You justly obſerve that the adminiſtration have found
out an "eafy and fummary method for the puniſhment
"of thofe, who fhall libel minifters of ſtate"-and
you fay of the houſe of commons, "we have enough
<<
to do, too much I fear, to maintain our own autho-
"rity and dignity unimpeached," page 15. I join
entirely with you in your fears, but not at all in your
hopes. The authority and dignity of no affembly or
body of men can be preſerved, who have committed a
capital injuſtice, as you declare in your ſpeech, page
9, and afterwards you affert, they have gone con-
trary to "the law of the land, the law and ufage of
"parliament, the ſpirit of our conftitution, and the
"general principles of natural juftice," page 29. Such
men furely deferve neither a natural, nor a political,
exiſtence. They muft neceffarily and immediately
"fall into the loweft ftate of humiliation and con-
"tempt," page 39.
"The dishonour and odium of
"it (the expulfion of Mr. Wilkes) will cleave to that
"affembly,
[ 63 ]
"affembly, which ought to be the conftant object of
(6
CC
<<
66
public reverence and affection," page 39. Since
the day, when they committed this "capital injuftice,
"which affected not only the rights of their own mem-
"ber, but the franchiſes of thoſe who ſent him thither
"as their repreſentative," page 10, they have advanced
with Tarquin's ravishing ftrides to our ruin. They
have arrogated to themſelves the right of choofing a
member for the firft county in England, againſt the
conſent of the majority of the freeholders. Mr. Wilkes
forefaw and foretold the progrefs of their ufurped power.
The day after the vote, which you truly call a capital
injustice, he told to his conftituents in print, "If mi-
❝nifters can once ufurp the power of declaring who
fhall not be your repreſentative, the next ſtep is very
eafy, and will follow speedily. It is that of telling
you, whom you ſhall ſend to parliament, and then
"the boaſted conftitution of England will be entirely
"torn up by the roots." Alas! Sir, his words were
too prophetic. "The conftitution of England is torn
"up by the roots." The nation returns the echo
from every part of the iſland. The people have car-
ried this truth to the foot of the throne, and earneſtly
folicited the diffolution of the prefent parliament, in
order to restore the conftitution, and with it a general
confidence in the legislature. All other remedies they
have declared muſt be fruitlefs and ineffectual. This
likewife, Sir, has been your doctrine for many months,
but have your actions correfponded with the pompous
profeffions of zeal and public fpirit you made to al-
moſt every man you faw through the whole fummer
and autumn? Let me afk, where was Mr. George
Grenville at the refpectable meeting held for this pur-
poſe at Ayleſbury? It was your duty on fo important
an occafion, poffeffing a very confiderable property in
the county, to attend, and to fupport what you
thought not only right, but of ablolute neceffity.
Your
[ 64 ]
橥
​Your brother, Mr. Henry Grenville, who has not an
acre of land in Buckinghamſhire, attended, and the
meeting had the faction of Lord Temple's prefence.
As to the weak and flimfy excufe of your being a
privy counſellor, you ought to have joined at Aylef-
bury in the petition to the king firſt, as having great
landed property in Buckinghamſhire, and afterwards,
if you were called upon at St. James's to have ad-
viſed your ſovereign, being fworn of his privy-coun-
cil, a conſiſtency of conduct, if you valued that praiſe,
would have induced you to fubmit your opinion to
his majeſty of the propriety and fitneſs of yielding to
the general wiſhes of a loyal and affectionate people.
Lord Verney, a privy counſellor, acted in this ſenſi-
ble and fpirited manner in your very county, and I
am fatisfied would be equally faithful to the true in-
tereſt of the king and the nation even in the council
chamber, but I fear you meditate a fecond deſertion
of
your beſt friends, and, notwithſtanding all outward
appearances, are bargaining again fecretly with the
worſt enemies of your country at home, who ftill en-
joy the full confidence of their maſter.
You affert that "the refpect and reverence due to
"the parliament, and the confidence repofed in this
"houſe (of commons) are viſibly diminiſhed," page
30. And in another part you obferve that "the houſe
"of commons have enough to do, too much you
"fear, to maintain their own authority and dignity
"unimpeached," page 15. I fear indeed they have
more to do than they will be perfuaded to do, but I
am fure not more than they may, if they will, very
eafily and expeditiously accomplish. The way to
maintain their authority and dignity unimpeached is a
very plain path. It is to follow the general voice of
their conftituents, of the people at large. The nation
wiſhes an effectual place and penfion bill, which would
only
C
[ 65 ] 1
only leave in either houſe of parliament the few ne-
ceffary fervants, of the crown in the revenue, in the
public offices, in the army and navy,. bills to reſtore
triennial parliaments, to deſtroy the mode of proceed-
ing by information, to eſtabliſh a fair and equal repre-
fentation of the people in the lower houfe, to give to
the public the revenue of all fine-cures, or to fink the
places themſelves, &c. but above all at this critical
period to eſtabliſh a commiffion for taking and ftating
the public accounts, not to be appointed by the houſe
of commons only, and confequently to end with the
feffion, but to be erected by act of parliament, to be
compoſed of the moft able and honeft men in the
nation, as well as in the two houſes, with full powers,
and to continue fitting till the great work was finiſh-
ed. When fuch an act paffes, we ſhall find the public
defaulter of unaccounted millions no longer able to
trifle with and infult an injured nation. No more
privy feals will then stop the courſe of public juftice.
We may likewiſe hope foon to fee the fettling of the
accounts for your two treaſury-fhips of the navy.
Theſe things would foon reftore both the public con-
fidence, and the public credit. With fuch aids the
hands of government would be ftrengthened, and the
exchequer, inſtead of being drained and impoverish-
ed, as of late in the moſt ſhameful manner, be recruit-
ed and repleniſhed. It was furely not only ridiculous,
but highly oppreffive, that a nation fo exhauſted as
this fhould, after paying you nobly for a number of
years fucceffively at the boards of trade, admiralty,
treaſury and navy, be obliged to give fome thoufands
a year to your little Georgy boy, as teller of the exche-
quer, even before he could tell the number of his
fingers. What an age and country do we live in, when
you could make your boaſt of what a noble proviſion
you had got from the public for your little Georgy boy,
after creating a minifterial fortune for yourſelf, and
fuch
[66]
fuch a man as Lord Holland could obtain reverfions
for his family to the third generation, when he had
raiſed, by having the nation's money in his hands, a
fortune fuperior to that of many fovereign princes?
•
I agree with you, Sir,
"that Mr. Wilkes is now
"become an object of popular favour, nor is that
"popular favour confined to this capital, or to it's
"neighbourhood alone, but is extended to the moſt
"diftant parts of the kingdom," page 40, but I to-
tally differ with you in what you affert "that he is
"indeed unhappy, becauſe he is guilty," page 8, or
"that he has not been the moſt oppreffed and injured
"man this age has feen," page 9. I know his inno-
cence, his perfect love of liberty, and his generous,
difintereſted plans for the public. I believe, although
in prifon, not unhappy, for he looks forwards, and
Dares proudly boaft, he feels no wish above
The good of England, and his country's love.
Even you allow that he actually poffeffes that favourite
wifh of the excellent patriot and poet Churchill, the
nobleft reward virtue can receive, the love of his na-
tive England. I hope too that enjoyment will follow
him to the grave, as it did his incomparable friend;
and I believe it, for the fteadineſs of his conduct
through life will I am perfuaded enfure to his laft
moments, and to his memory, the fame glorious ap-
plauſe he now receives from a free and fenfible people.
He cannot but be happy even in the king's bench, for
he has received there the moſt endearing marks of
eſteem and gratitude from his own county of Middle-
fex, and from the whole nation. While alive, thoſe
honours have been laviſhed on his name, which envy
rarely fuffers to be paid but by pofterity, and only to
the lovers of their country, and the guardians of pub-
lic liberty. I do not wonder that he is a favourite
with
[ 69 ]
5
•
Will
with his country. He loves his country with the en-
thuſiaſm and difintereſtedneſs of a Roman, beyond
private friendſhip, perfonal regard, or family attach-
ment. He has food forth with his perfon, pen, and
purſe in ſupport of our most valuable rights. He has
never weighed danger in the nice, golden fcales of
Lord George Sackville. He has borne the most cruel
perfecutions with dignity and fortitude. He has fa-
crificed every confideration of fortune and private in-
tereft to his mafter-paffion-the love of England. It
has been his glory to ſtem the torrent of arbitrary pro-
ceedings, and to oppofe all illegal precedents of power
among us. Born with the ſpirit, but not to the for-
tune of Hampden, he has fuffered more, and gone
greater lengths to the diftrefs of his own private affairs
in the ſervice of the public than any man in this
country. You fay
You ſay "that he has not been the moſt
"oppreffed and injured man this age has feen."
has ſeen."
you then tell us of another, a friend of liberty, and
of the Brunſwick line, whofe ruin has been planned
and refolved by all the three great powers of the ſtate,
calling to their aid the firft criminal law-court of the
kingdom, each acting in their ſeparate capacity with
the utmoſt degree of violence and rancour? Will you
mention another, who has been thrice punished for the
fame pretended offence, and that only a libel, firſt in
the houſe of commons, then in the king's bench, and
a third time in a new houfe of commons? Will you
tell us of fomebody, whofe houſe has been robbed by
their own fervants at the inftigation of the agents of
the treaſury, and a parcel of idle verfes, feloniouſly
taken from him, made a ſtate crime to keep him a
year in priſon, and to puniſh him by a heavy fine?
Have even the folicitors and agents of the treaſury
employed the very worst means to arrive at the worſt
ends imaginable against any other man? Will you
give us another inftance of fuch a clofe and rigorous.
VOL. III,
confine-
E
H
0
[ 68 ]
confinement in the Tower, fuch a general plunder of
all private papers, fuch tricks about records and jury-
men, fuch a profcription at home, tedious exile abroad,
unjust out-lawry, repeated expulfions, fine and impri-
fonment? In fhort will you tell us of any man, who
has fuffered all this only for attacking ſuch a favourite
as Lord Bute, and fuch a minifter as Mr. Grenville?
To compleat your embarraſſment, will you pleaſe to
find me any where a being as guilty and vindictive as
the firft, or as mean and defpotic as the laft?
<<
You tell us that "the officers of the crown-had at
"laft recourfe to the fhameful expedient of ftipulating
"with Mr. Wilkes himfelf, the terms upon which he
"would confent to be taken into cuflody. To follow
"that precedent you (the houſe) ought now at leaſt
"to afk him, upon what terms he will confent to be
"expelled. Perhaps, if properly applied to, he may
"condefcend to this requeft as graciously as he did to
"the former, and as voluntarily as he furrendered
"himſelf a prifoner, when he was taken with impu-
nity out of the hands of the officers of juftice"-
page 37. Such a language of infult has feldom
been held to a houſe of commons, even in the moſt
tu bulent times. But the fact is falfified by you to
ſerve your inference from it. There was no ftipulation
whatever between the officers of the crown and Mr.
Wilkes. He gave two days' notice to the fheriff's
officer to come to his apartments at a fixed hour in
the morning with the writ of capias utlagatum, and de--
clared that he would attend the officer, as his prifoner,
into the court of king's-bench. While he was waiting
in the chancellor's room adjoining to the court, the
attorney-general came out and afked him, " if he was
"really in cuftody." Mr. Wilkes anfwering that he
was the officer's p:ifoner, the attorney-general deliver-
ed his fiat for the writs of error into Mr. Wilkes's own
hands. This is the exact ſtate of the fact. Mr. Wilkes
entered
[69]
entered into no ftipulation of any kind with the officers
of the crown. As to his expulfion on the third of
laft February, I think it greatly to his honour, that
he has not from the firſt, on that or on any occafion,
felicited the vote or fupport of any member in the
houſe, or great man out of it. He left every gentle-
man to his own ſenſe of duty to his country, and re-
lied entirely on a clear and good caufe. As to private
foibles, I hope he poffeffes great virtues enough to
compenfate for them, and I fhall only add, that he
may apply what a very eccentric genius of this age has
faid of himſelf, My own paffions, and the paffions
"and intereſt of other men ftill more, have led me
"afide. I launched into the deep before I had loaded
"ballaft enough. If the fhip did not fink, the cargo
The ftorm itfelf threw me
.
cr
was thrown over-board.
"into port."
You approach us fometimes with all the appearance
of fairneſs and candour, but you have only the ap-
pearance. You urge againſt Mr. Wilkes's expulfion,
"let not your juft refentments againſt the conduct and
"character of the man, who is now the object of our
"deliberation, prevail upon you to ground any part
"of your proceedings upon fuch deftructive and fatal
<c
principles," page 28, and you fay, "I have not
"changed my fentiments relative to Mr. Wilkes, of
"whom I continue to think exactly in the fame man-
“ner as I have long done," page 30. I know Mr.
Wilkes is very indifferent as to your fentiments of him,
or on any point whatever. You are not one of his
conftituents, as you tell the world in this " fpeech, if I
"had been one of the electors for the county of Mid-
"dlefex," page 24. In almoſt every matter of pub-
lic concern he must fee that your judgment has been
both falfe and abfurd. I will examine but one cafe,
but it ſhall be very capital; I mean the peace of Par's,
which you ſo entirely approved. I will try it by your
favouri.e
E 2
1
>
[ 70 ]
1
favourite rule of oeconomy. I defire you would in-
form us, if all the new territories together, which we re-
tained after a war of fo fuch prodigious expence, afford
now a fufficient revenue even to defray their own eſta-
bliſhments, fo far from paying the intereft of the very
debt, which we contracted to make thofe conquefts.
Yet we know that Martinique, or Guadeloupe alone,
would have greatly affifted, if not indemnified, us in
point of revenue, and that it entirely depended on
your friend, the enemy of England, the Scottish peace-
maker, over whom you had then fo great influence, to
have ſecured us one, if not both, of thoſe rich and im-
portant iſlands. What a wretched bargain then in
point of revenue, as well as glory, did you plan and
approve? What a fpecimen have you given of your
public ceconomy? Shall we again indignantly hear
you declaim on the pitiful, paltry favings of a few
pounds at home, and only in cafes where you are not
yourſelf concerned? I will however do you the juftice
to declare, that I never heard, nor do I believe, you
received any part of the amazing fums of French gold,
for which all Europe is convinced that our moſt im-
portant conquefts in the laft war were fold to the an-
cient enemy of theſe kingdoms. Will you pleaſe, Sir,
to ftate the balance of the clear revenue and neceffary
diſburſements of the few territories we retained at the
peace, and to favour us with thefe accounts in the next
pamphlet your ingenious friends Wheatly, Lloyd, or
Knox, digeft from your crudities for the public. I beg
however they may be more accurate than any one cal-
culation in the Confiderations on the Trade and Fi-
nances of this Kingdom, or The Prefent State of the
Nation. If they are not, I venture to prophecy that
the public-fpirited author of the Obfervations on the
Prefent State of the Nation, the only man fince the age
of Cicero, who has united the talents of ſpeaking and
writing with irrefiftible force and elegance, will again
detect
[
7 ]
*
1
detect your grofs errors, and even ferve you up to the
public, notwithſtanding all the parade of the preſent
hafty and ill-cemented political friendſhip. I adviſe
you not to truſt much for your ſecurity to fuch a mere
phantom. The Temple of Friendship at Stowe ſhould
teach you the ſhort duration and perfect futility of all
ftate connections, founded merely on plans of ambi-
tion. You well know that before it was covered in,
and your uncle, the old Marſhal Cobham, had time to
place only the ten bufts on their pedeſtals, no three of
thoſe political friends would willingly have continued
a quarter of an hour together in that, or in any other,
room. The Temple of Concord and Victory rofe under
your elder brother's happier aufpices, and I fincerely
hope that the goddeſs of Concord, if ſhe has indeed in-
ſpired her three new votaries with public ſpirit as well
as private harmony among themſelves, will lead them
foon to victory, as among the Romans the Temple of
Virtue led to that of Honour. The ftatue of Libertas
Publica in a niche of this temple ought to remind you,
Sir, that freedom is the birth-right of every fubject of
this empire, Britiſh, Irish, or American. If the Gren-
villian family compact means to defend that, Great
Britain, America, and Ireland, will join them: if it
means only poffeffing the moft lucrative offices of the
ſtate, and ſharing the national plunder, the public con-
cord, which now reigns through the whole empire will
be all-powerful without them, for there is at laft, as
Lentulus fays in Cicero, concordia et confpiratio omnium
ordinum ad defendendam libertatem.
८८
Your "private fentiments of Mr. Wilkes, whether
you have changed them, or not," page 22, can be
of no confequence to him, except from the value he
fets on your opinion. I believe that is not now to be
gueffed. His real worth or demerit, will be eſtimated
not from the fulfome praiſes of fome, nor the vira-
lent abuſe of others, to which he feems equally in-
different,
E 3
[ 72 ]
54
different, but from his own conduct, and the ſteady
purfuit through life of thofe national objects, which he
has declared to have always in view. Pofterity will
judge him with impartiality. Real, intrinfic mer.t, no
more than happineſs, can be perfectly afcertained on
this fide the tomb. The nation hailed the fair, aufpi-
cious morn of Pulteney and Pitt, and gloried in their
bright méridian luftre, but with anguish beheld the
melancholy, fetting fun, fhorn of his beams, and now
an eternal night of oblivion has cloſed upon them
both.
After letting us gueſs what you think of Mr. Wilkes,
you kindly favour us with part of your own character.
It is drawn modeftly, but we may be fure not unfa-
vourably. You tell us of yourfelf, " if I know my
"own failings, revenge and cruelty are among the vices
to which I am leaſt inclined," page 5. I remember
likewiſe that in the winter of 1762 you declared re-
peatedly in the houſe of commons, "that you had no
ambition nor avarice to gratify." The moft difficult,
Șir, as well as the moſt important fcience in the world,
is confeffedly felf-knowledge. You have gone half
way, as you declare, in this arduous purfuit. You
let us know what you are. Mr. Grenville is not re-
vengeful, nor cruel, nor ambitious, nor avaricious!
He tells us fo himſelf. Can any man doubt it? If
ſuch a man exiſts, let him afk Mr. Wilkes his opinion
of the two first qualities, and Lord Bute of the two laft.
Although they agree in no one other point, I dare ſay
they now do in theſe four as to Mr. Grenville. I re-
gret that you have delineated only fo fmall a part of
that happy compofition, which makes your admired
character. The next fpeech, I truft, will furniſh the
reft, and you may as juftly give yourſelf the negative
praiſe of not being
Laborious, heavy, bufy, bold and blind.
You
A
[ 73 ]
You obſerve that Mr. Wilkes afked the evidence at
the bar, Mr. Barlow, "whether the precedent quoted by
"Lord Mansfield (about the alterations of the records)
"were not all taken from the ſtar-chamber," page 32.
He certainly had a right to aſk the queſtion, and he did
it, I think, very properly, for I have read in a book
written by the greateſt lawyer of this age, "I chal-
"lenge this fophift to produce one adjudged precedent
"of fuch an alteration." Poftfcript to a Letter
concerning Libels, Warrants, &c.-No fuch ad-
judged precedent has hitherto been produced, yet you,
Sir, concurred with the majority laft winter in voting
that the "alteration of the records was according to
"law and juftice, and the practice of the court of
"king's-bench." As to precedents, there are certainly
many of almost every kind in the courts of law, but
thoſe only have authority with mankind, which are in
themſelves juft, and are made by wife and honeft men
in times of public tranquility and happineſs. No pre-
cedent therefore drawn from the ftar-chamber, can
now have authority. The court of ftar-chamber itſelf
was abfolutely diffolved, taken away, and determined,
and I wiſh your friends would remember that the fame
ftatute declares, that from henceforth no court, council,
or judicature fhall have, ufe, or exerciſe the fame, or
the like jurifdiction. This very act paffed in the glo-
rious parliament, or rather fynod of gods, which met
in November 1640, and in a manner contrary to every
precedent in the journals. The bill was only once read,
and never committed in the houſe of commons. Cla-
rendon expreſsly tells us that important bill (for
"taking away the court commonly called the ftar-
chamber) was never read but once in the houſe of
"commons, and was never before heard of in parlia-
"ment." But the entire inclination of the nation,
which he mentions, made the houfe, to gratify the
people, diſpenſe with their forms, of which they are
undoubtedly
E 4
1
[ 74 ]
undoubtedly the mafters, notwithſtanding the jargon
you, and the late clerk, Mr. Jeremiah Dyfon, teaze
them continually with on this fubject. Had you both
lived in that age, which I devoutly with for the fake
of this, you would, I believe, have oppofed firft the
very ground of that bill, as built on the public liberty,
and then obſtructed its rapid progreſs, merely from the
ftale, unmeaning pretence of want of form, with which
ſuch triflers eternally perplex men of real buſineſs, and
this, I think, probably you would both have done in
ſpite of the earneſt wiſhes and general impatience of a
whole nation, which you are uſed to hold of ſmall im-
portance.
I have now, Sir, gone through the moft material
parts of your ſpeech. If I have treated you with feve-
rity, recollect that "you have deviated from the ho-
«nourable and noble office of fpeaking the truth,"
page 6, and the venom fo plentifully and malignantly
diffuſed through your ſpeech againſt Mr. Wilkes, that
I was vindicating truth and a friend, and that you were
not content with advancing many direct falfhoods
againſt him in the houſe of commons, but by the pre-
fent publication have fpread them through the nation,
One word on the late Grenvillian family compact, and
I releaſe you. I mean only the three brothers: and
the rest of the family are offa innominata. I love the
amiable character, and I honour the abilities and pub-
lic virtue of Lord Temple. I really believe him a
friend of the people. I hope to fee early, clear, and
effential proofs of this from his miniftry, if ever the
powers of government are entruſted to him. If he
hefitates, or delays, he will lofe the favourable opinion
I love to indulge of his patriotifm. As to the two
other contracting parties, I think of Lord Chatham as
his brother Temple did in the years 1766 and 1767,
and of Mr. Grenville as his lordſhip did in the years
1763, 1764, and 1765. The Grenville family have
indeed
1
[ 75 ]
indeed been too much like a Scottiſh family for many
years. If one brother has at any time been quite
right, another has always been as wrong, for he has
been diametrically oppofite. If one has been violent
in oppofition, another has regularly kept the balance
of power, even by ſupporting every meaſure of govern-
ment, and filling fome lucrative office. But it is really
time, Sir, to put an end to all your filly, peeviſh bick-
erings, and unintereſting, private, family difputes.
The public has laughed long enough at your many
girlish quarrels and reconciliations, and now expects
I.ord Temple to take the lead. If you are the mini-
fter, I fhall tremble left the fceptre of America ſhould
be wrefted out of my fovereign's hand, or the horrors
of a civil war enfue between Great Britain and her
colonies. But Lord Temple, I hope, is determined to
do juſtice to the rights of every ſubject of this wide-
extended empire, to give us freſh fecurities for our
invaded liberties, to efpoufe the cauſe of the people,
and to fettle by his weight and authority the jarring
private intereſts, as well as to controul the mad ſchemes
of ambition, and the ſelfiſh views, of the whole bro-
therhood. On no other terms can the Grenvillian fa-
mily compact gain the power of the court with the
ſupport and the confidence of the nation; for both the
court and the nation domum timent ambiguam, Tyriofque
bilingues.
Nov. 4, 1769.
I am, &c.
}
A LET-
[ 76 ]
A LETTER
ON THE PUBLIC CONDUCT OF MR. WILKES.
$
FIRST
PUBLISHED IN THE POLITICAL REGISTER FOR NO-
VEMBER 1768..
Την ελευθερίαν το καλλισον και περιμαχιμώτατον αθλον.
Plutarch in the Life of T. Q. Flaminius.
A
ΕΚ
SIR,
October 29, 1768.
*
FTER the great variety of pieces, which to this
hour have appeared for and againſt Mr. Wilkes,
that ſubject does not feem yet exhaufted, nor indeed is
every particular of importance relative to his public
conduct hitherto known and authenticated. I fay, Sir,
public conduct, for I am entirely of opinion with the
gentleman, who declares, "I do not think myſelf at
"liberty to ſcan the private actions of any man, but
"have a right to confider the conduct of every man
"in public, and to approve or to condemn his doings,
as they appear to me to be calculated, either for the
"good or the hurt of his country."-A Letter con-
cerning Libels, Warrants, &c. firſt publiſhed in 1764.
-I fhall not now ftay to fhow how far the equity
of this rule was violated by the concealed author
himſelf before he got half through his pamphlet,
ir a manner equally indecent and unjuft to a fick and
abſent friend, whom he bafely wounded; but after the
long harveft, which you, Sir, and your brother authors
and printers have made of Mr. Wilkes, I fhall venture
to offer you a few tolerable gleanings.
The public, Sir, have a right to aſk why Mr. Wilkes
did not perfonally attend the trials for the re-publica-
tion of the North Briton, No. 45, and the Effay on
Woman, as he did all the actions brought by the
printers apprehended under the general warrant. We
ought
£ 77 ]
4
ought likewife to be told why he was not prefent in
the houſe of commons, when the charge against him
was heard on the 19th of January 1764. The juftice
of the nation, and his own perſonal honour, demanded
his appearance. He had made an appeal to his coun-
try, and the cauſe of liberty had a particular claim on
a man, who had pledged himſelf in its defence. He
was prevented, not by fear, to which I believe him a
ftranger, but by a prohibition from the higheft of all
powers, by a dangerous illneſs. Towards the end of
December 1763, he went during the recefs of parlia-
ment, to pass the holidays with an only daughter, who
was at Paris for a part of her education. That journey
being generally made in four days, often in three, the
diſtance was of no confequence, fince in fo fhort a time
he could hear from his friends. He was feized at
Paris with a violent fever. A confiderable inflamma-
tion, with other bad ſymptoms, attended the dangerous
wound he received in a duel with Mr. Martin. In this
condition he tranfmitted to the ſpeaker on the 11th of
January 1764, an original certificate of his ill health,
figned by the French king's phyſician, and a furgeon of
his army. He requeſted in the letter a more diftant
day, that he might have it in his power to attend the
difcuffion of points, fo very important in themſelves,
and in which he was fo materially concerned; but the
decree of expulfion had paffed the lips of the Scottiſh
minifter to his flaves, the minifters of the day, to whom
for a ſhort time he had delegated his omnipotence.
They were impowered in a proper manner to perfuade
the fame famous majority in the lower houſe, which
had been induced to approve the peace of Paris, and
in the firſt year of it to eſtabliſh the late detefted exciſe
on cyder and perry, not only to expel Mr. Wilkes, but
ikewiſe to vote him the author of the North Briton,
No. 45, without the oath of any witneſs, or the ſhadow
of legal proof. According to the conftitution of Eng-
land,
1
[ 78 ]
land, this being a fact, ought to have been tried by a
jury of twelve men, and not enquired into by witneffes
at the bar, who were not fworn. This direct attack on
the rights of their countrymen in fo important a point
as the trial by jury, would have furprized the world
in any other body of men, but theſe had before voted
away their own privileges, or rather the privileges of
the nation, for they are strictly the rights of the con-
ftituents, who confer them on their reprefentatives in.
parliament. The conftitution gives privilege of par-
liament * as one of the beſt barriers against the vio-
lence of the crown, which might otherwiſe in an im-
portant moment, in the laſt noble ſtruggle of expiring
liberty, feize not five, as a former Stuart would have
done, but five hundred, deputies of the people. They
had done this in fo intricate and doubtful a cafe, as
that of a real or pretended libel. They even went fo
far as to thank the crown for the tender regard expref-
fed for the privileges of the houſe in the cafe of Mr.
Wilkes, although the court of common pleas had uną-
nimoufly releafed him, becauſe his impriſonment
was a violation of the privileges of the houfe, and
thoſe judges on oath were obliged to confider the pri-
46
*"It was not made to fcreen criminals, but to preferve the
very life and being of parliament, for when our ancestors con-
"fidered, that the law had lodged the great powers of arreft,
* indictment and information in the crown, they faw the parlia-
"ment would be undone, if during the time of privilege the
"royal proceſs fhould be admitted in any miſdemeanor whatſo-
66
ever, therefore they excepted none. Where the abuſe of
power ought never to be given, becauſe redrefs comes too,
❝late.
"A parliament under perpetual terror of impriſonment, can
"neither be free, nor bold, nor honeft, and if this privilege
"was once removed, the moſt important question might be irre-
"coverably loft, or carried by a fudden irruption of meffengers,
"let looſe againſt the members half an hour before the debate.
Lords' Proteft. 29 Nov. 1763.
vileges
}
$
[ 79 ]
vileges of parliament as a part of the law of the land.
I ſuppoſe their decifion in his favour againſt the two
lords of his majeſty's moſt honourable privy council,
and principal ſecretaries of ſtate, who both figned the
warrant of commitment, is now acknowledged to be
legal, for the prefident of that court, who delivered
their opinion and his own, has fince been promoted to
the firft dignity in the law, and is at this hour lord high
chancellor of Great Britain. In other inftances, not-
withstanding the clear precedent on their own journals,
of a chief juſtice impeached for " having in an arbi-
trary manner granted divers general warrants for at-
"taching the perfons, and feizing the goods of his
"majeſty's fubjects," the expreſs vote "that the
fearching and fealing of the chambers, ftudies and
papers, of members of parliament, and iffuing out
"warrants for that purpoſe, are breaches of privi-
66
66
66
lege," and the remarkable cafe in point, "that Mr.
"Laurence Whitacre, being a member of parliament,
"and entering into the chamber of Sir John Elliot,
"being likewiſe a member of that parliament, fearch-
66
ing of his trunks and papers, and fealing of them,
"is guilty of a breach of privilege of parliament,"
and Mr. Wilkes had on the very firſt day of the ſeſſion
in 1762, made a complaint againſt the under-fecretary,
Mr. Wood, the folicitor of the treafury, Mr. Webb,
&c. and all the facts were of public notoriety, yet the
majority on the 14th of February 1764, arbitrarily voted
that the complaint againſt them ſhould be diſcharged,
yet without any declaration of their reafons for fo
ftrange a proceeding, or afferting the innocence of the
parties under ſo heinous a charge. The cruelty of Mr.
Wilkes's treatment in the Tower, to which he was com-
mitted a cloſe prifoner even for a mifdemeanor, and
* "The law of England appoints impriſonment "in cuftodiam
"not in pœnam," acknowledges no cloſe impriſonment, whereas
"I was kept with the moſt extreme rigour."
Algernon Sydney's apology in the day of his death. Page 173.
the
1
[ 80 1
t
the fuffering no perfon for three days to come near à
member of parliament to bail him, although commit-
ted for a bailable offence, were likewife entirely over-
looked by a majority, glorying in a blind fubmiffion to
the inhuman dictates of a cruel, defpotic, and remorſe-
lefs miniſter. Thanks to the wifdom of our anceſtors,
who planned the noble conftitution of this country,
that houſe of commons is now dead, but the memory
of their infamy is immortal. They were fuffered to
die a natural death, although they had long furvived
the good opinion, and totally loft the confidence, of
their maſters. No age produced fo great a number of
profligate and proſtitute fenators. After the total lofs
of the liberties of Rome, Tiberius did not find a ſe-
nate ſo ſlaviſh, and even the penfionary parliament of
Charles II. muft now ceaſe to be the moſt infamous in
the annals of England.
Mr. Wilkes continued very ill during the months of
January and February, nor was he tolerably recovered
till the end of April. He feldom ventured abroad even
in March that year. The majority had made a pre-
tence that the certificate of his bad ftate of health was
not authenticated before a notary public. He there-
fore in vindication of his honour tranfmitted to the
fpeaker on the 5th of February, a freſh certificate, which
proved that the former was in the due form, and
gave
the particulars of his illness to that day. This was
atteſted by two notaries public, and the Engliſh ambaſ-
fador. The trials in the king's-bench however came
on the 21st of February, the alteration of the records
having been made only the day before. The next
French mail brought to him languifhing in bed, as a
balm to his wounds, an account of the furprizing tran-
factions of thoſe two days, although by the preceding
poft he had received the moſt pofitive affurance that
the trials were put off, together with copies of counter-
notices, figned fummoning officer, which had been fent
to
}
81 ]
[
to feveral of the jury. Could he have known the re-
cords would be altered after he had pleaded, he would
certainly have given orders not to make any defence, and
have ſought a conftitutional remedy. The proceeding
to trial under fuch circumftances, when his folicitor had
proteſted againſt the alteration, fhewed how determined
his enemies were at any rate to make fure of his con-
viction. If the alteration had not been made, the ori-
ginal records were too loofe and vague to have con-
victed him. The information must have been quafhed *.
Could he ſuſpect the alteration, which was deferred al-
almoſt to the laft hour? Lord Mansfield perfonally
went through the whole of this bufinefs. The altera-
tion of the records was made under his immediate in-
ſpection at his own houfe, and he tried both the cauſes.
The falfe and cankered Scot, whofe peftilential breath
blaſted all our warrior's laurels, now exulted, and
thought his fubtle countryman had made him for ever
fafe from the most dangerous of his enemies, for that
Mr. Wilkes had received the coup de grace by the two
* "The common opinion among lawyers has always been,
"that no judge, in a criminal proceeding ought to know any
thing of the record before the trial comes on, unleſs one of
"the parties in open court move fomething thereon; becauſe a
"judge is to be unprejudiced and impartial. The making of an
"immaterial alteration in any chamber would be fully, the
"making of a material one without confent, feems to be in-
juſtice, ſeeing it might prevent and remove an objection fata}
"after trial, in arreſt of judgment. And what attorney in his
❝fenfes would complain to any court againſt the prefident in it?
"I challenge this fophift to produce one adjudged precedent of
"fuch an alteration. His fuppofition of there being no diffe-
"rence in legal fignification between the words tenor and purport
"is grounded in ignorance; the former having been determined
to import an exact recital, and the other only the general
" meaning and effect, of any deed or paper. For which reaſon
"the firſt has been held to be fufficient, and the other infuffi-
cient to ground a conviction." Poftfcript to a letter concern-
ing libels warrants, the feizure of papers.
เ
verdicts
1
[
82 1
verdicts and the out-lawry, which probably would fol-
low. Could Lord Mansfield have imagined that Mr.
Wilkes would have dared to return to England, I
believe he would neither have tried the two caufes
himſelf, nor have ventured upon the alteration of the
records.
*
The firſt plan of the Scottiſh minifter's revenge was
ftill deeper laid. A complaint had been purpoſely
made to the houfe of lords by the Biſhop of Gloucef-
ter, that the name of Warburton had been put to
fome notes of the Effay on Woman. The bifhop in
this affair, was however, only co-adjutor to a lay
lord, bomini poft homines natos turpiffimo, fceleratiffimo,
contaminatiffimo, who first moved the complaint, fo
much to the aftonifhment of his brother peers, that
† one of them faid, " he never before heard the devil
"preach a fermon against fin." It had therefore been
determined that after the expulfion from the houſe of
commons, which was already bargained for, he ſhould
be committed to Newgate on this pretended breach
of the bishop's privilege, and continue there till a
verdict was found against him. He would then be in
fafe cuftody to receive the fentence of the king's
bench. The fuccefs of this minifterial craft was cer-
tain, had Mr. Wilkes been in a capacity of returning
to England at the beginning of the year 1764. When
he was able after the two trials and the expulfion, if
he had returned during the lawleſs rule of an adminiſ
tration, which had facrificed the liberties of the fub-
ject, and even their own fecurity, to gratify the fa-
vourite's luft of revenge, he ought to have lodged in
Moorfields. He carried on fteadily all this time the
cauſes againſt Lord Halifax, and they were only fuf- -
pended by his out-lawry, which took place in No-
vember 1764. The day, on which the writs of error
Earl of Sandwich,
+ Lord Le Deſpencer.
were
[ 83 ]
were allowed in 1768, he reſumed the attack, and I
believe his lordſhip will not now be much longer able
to mock the juftice of the nation. On the changes of
the miniſtry, with pleafing, but delufive hopes, in
1766 he twice
review'd his native fhore,
Much fam'd for gen'rous fteeds, for beauty more,
as old Homer fays of Greece, and is equally true of
England, but one of the miniſters wanted the power,
and the other the will, to do him juftice. The mar
quis was in his heart the warm friend of liberty and
his country. The duke was the friend of in Nancy
Parfon's friend.
Mr. Wilkes was out-lawed for contumacy in not
appearing to receive fentence. The courts of law
have always looked on out-lawries as odious. The
proceſs of out-lawry is to compel an appearance: as
foon as an appearance is made, the court ought to be
fatisfied. When therefore he came into the court of
king's bench, and declared an entire ſubmiſſion to
the laws of his country, it was moſt natural to imagine
the out-lawry would have fallen of courſe, fentence
been pronounced, and the law fully fatisfied. His
council infifted on this, and likewife pointed out many
defects in the form of the out-lawry, which proved it
erroneous and invalid. He had appeared, and declar-
ed himſelf the perfon, against whom two verdicts
were found at that very bar, but the most ridiculous,
the moſt farcical fcene imaginable followed. The
judges (credite pofteri !) agreed not to know him, and
he was fuffered, notwithſtanding the two convictions
on record, together with an out-lawry, to depart the
court of king's bench in as full fecurity as any of the
numerous and aftoniſhed fpectators. It was then
the determination to have continued the out-lawry.
The fpeech delivered by Lord Mansfield on the re-
VOL. III.
F
verfa
A
[ 84 ]
verfal was compofed, or rather tranflated from the La-
tin, about that time, evidently as an apology for the
eſtabliſhing of it. A week after this, Mr. Wilkes
fent to the fheriff's officer to execute the capias utlaga-
tum upon him at a fixed hour in his own apartment.
He attended the officer into court the fame morning,
on the 27th of April, but it was not till the 9th of
June, when the out-lawry was reverfed. It was then
at laſt declared originally null and invalid. This long
delay was the more extraordinary, becauſe by his ex-
prefs orders the counſel had refufed to argue that point
any more after the first hearing, although preffed to it
by the judges. His reafon was, that the public had
declared an entire fatisfaction in the ftate of the argu-
ment, as left by Mr. Serjeant Glynn. Lord Mansfield
reverſed the out-lawry, merely on an error ftated by
the ferjeant in the form, not on the large and liberal
ideas of law and juſtice, on which the greateſt ſtreſs
had been laid in the pleadings. This defect was the
omiffion of two words, pro comitatu. Mr. Wilkes
however, I believe, owes the reverfal of his out-lawry
to no legal pleadings, no fubtle arguments, or nice
diſtinctions, to no pretended failure of form where no
form whatever is preſcribed, but to the temper and
high ſpirit of the times, to the people of England in
general, more than to any one man. He has that moſt
effential obligation to the nation at large, not to the
kindness of any particular.
The little piece of chicane I have mentioned in
the English law is only to be paralleled by a fimilar
nicety among the Romans, which gave the pretext
to a like reverfal of the profcription of Cicero. The
law against him was bad grammar and falfe Latin, for
the tenſe was miſtaken. It was drawn by Sextus
Clodius, the Wedderburn of the Roman bar, but in-
ftead of interdicatur, it was interdi&tum fit, which Cicero
declares
85 ]
declares rendered it null. At quid tulit legum fcriptor
peritus, callidus? Velitis, jubeatis, ut M. Tullio aqua et
ignis interdicatur? non tulit ut interdicatur: quid ergo ?
ut interdictum fit. Afterwards. he obferves, Quid fi iis
verbis fcripta eft ifta profcriptio, ut fe ipfa diffolvat? He
gives the reafons at large, quod factum non eft ut fit fac-
tum, ferri ad populum, aut verbis ullis fanciri, aut fuffra-
giis confirmari poteft ? &c, &c.
I ſhall now, Sir, give you my opinion on another
point of importance among the charges brought
againſt Mr. Wilkes. He is faid to have ſpurned at all
law and government, to have raiſed and fomented the
riots and tumults, fo frequent of late years in this
kingdom. The whole of his conduct demonſtrates
the injuſtice and malice of this charge. The diftrac-
tions and confufions in all public affairs fpring from a
very different caufe, from the general difcontent of
the people, who, in the fatal effects, obferve and
ſmart for the unhappy influence over the fovereign of
a free country, which a man has obtained, who wants
wiſdom, and holds principles incompatible with freedom, as
Mr. Pitt faid, although he has been contradicted by
Lord Chatham. Mr. Wilkes has irreproachably the
merit of a good fubject, for he has always paid a due
reſpect to the laws, a reverence to the conftitution,
an obedience to the power of the magiftrate, and to
all juft authority. Under repeated oppreffions by the
hand of power he has only fought the legal redrefs.
He has claimed the protection of the laws againſt acts
of injuſtice, violence, and minifterial robbery. The
laws have fully juftified the appeal. His enemies
have been convicted of many atrocious, illegal acts,
and condemned by more than one fovereign court of
juftice. He is indeed, Sir, a man more finned against,
than finning. After the fharpeft provocations, the con-
duct of Mr. Wilkes has been cool, temperate ard
F 2
prudert,
[ 86 ]
prudent. When he was releaſed from the Tower, he
went foon into a retired part of Surrey. He vifited
his friends in the city, after that triumph of the laws
in his perion over minifterial tyranny, only in the
moft private manner, to avoid every poffibility of a
tumult among the people, who thought him greatly
injured, and had warmly eſpouſed his cauſe in grati-
tude to a man, qui libertatem civibus ftabiliverat, in
Tully's phrafe. He did not make a vain fooliſh pro-
grefs through feveral counties, like the mad tory par-
fon in Queen Anne's time. He went only once into
Buckinghamshire, and he chofe the king's birth-day
for the time of his coming among his conftituents at
Ayleſbury, that the rejoicings on his return to them
might diftinguiſh that aufpicious day. On the occafion
he gave an entertainment to the borough, after which
he returned to town.
56
The fame ſpirit of moderation and prudence dictated
all his future meaſures, and he ſtudiouſly avoided
every thing which could inflame. Since his laft re-
turn to England, the city and Middlefex elections.
have given freſh proofs of his love of decency, peace,
and order. He exerted himself during the whole
time of the poll at Guildhall to preferve the peace of
the city, and his laft words on quitting the huftings
were, Gentlemen, I recommend it to you in the
ſtrongeſt manner to exert yourſelves to preferve the
peace and quiet of this great city." That attention
to the public good in fuch a moment of humiliation
to an unſucceſsful candidate, carries with it, in my idea,
particular merit, but the action, by which it was fol-
lowed, gives it great luftre. The livery in general
had been diſguſted by the partiality of the first city
magiftrate, and irritated by the minifterial orders to
vote for their creatures, which were iffued from fome
of the boards. Thofe orders had appeared in moft of
the public prints. The people were fully informed
46
of
!
[ 87 ]
of every tranfaction. They thought the election un-
fair from the beginning, and were farther provoked the
laft day at the fhutting the great iron gates during
the time of the poll, by which many of the livery
were prevented getting into the hall. It was believed
that they intended at the cloſe, before the numbers
could be caft up and proclaimed, to have feized and
deſtroyed the poll books, that the whole proceedings,
which they confidered as irregular, might be void.
The moment of the clerks delivering the poll books
to the ſheriffs on the huftings in order to be caft up
by them, was to have been the fignal. Mr. Wilkes
was informed of this, and he prevented it by retiring
as foon as the poll was finiſhed, before the books could
be caſt up, even by the clerks, and delivered. The
greater part of the people, as on the former days,
followed Mr. Wilkes. All the other candidates re-
mained in the hall with their friends, the fheriffs pro-
ceeded to caft up the books, and the declaration of the
numbers on the final cloſe of the poll was by this
prudent meaſure made with very little confufion. The
former days of the poll Mr. Wilkes had attended the
cafting up of the books, even by the fheriffs, and
the affixing of the numbers for public inſpection at
the upper end of Guildhall. One of the fuccefsful
candidates thanked him publicly, as he was retiring
from the huftings, for the excellency of his conduct.
The Middleſex election furniſhes another proof of
the care Mr. Wilkes has taken to maintain decency
and good order. A great riot was apprehended, which
ſeemed to be the favourite, and indeed then became
the only reſource of the other party. The out-lawry
fubfifting, they had with the baſeft views moft falfely
and infamouſly afferted in the public papers, that he
might be killed like a wild beaft, and ought to be
thot like a mad dog, that ſuch an action would be not
F 3
only
[ 88 ]
only innocent, but meritorious. He difperfed through
the county many thouſand addreffes to the freeholders,
entreating their affiftance for the prefervation of the
public peace, without a hint of his private fafety. He
might certainly have been attended by a numerous
cavalcade to Brentford. Many of the freeholders
preffed it as a proper, and the ufual, meafure; but
he choſe the moſt private manner, and went there the
evening before the election, with only one *gentleman,
whoſe friendſhip he ranks among the honours and
bleffings of his life. The election was carried through
in the greateſt freedom and order, with a general fo-
briety never before feen on fuch an occafion, interely
owing to the influence of Mr. Wilkes and his friends.
On the fame principle of preventing even the poffibi-
lity of a tumult or riot, he declined the being chaired,
and other uſual honours.
I am afhamed, Sir, to have dwelt fo long on a point,
which may be proved by the whole of Mr. Wilkes's
conduct. Even his preſent fituation has given him a
glorious opportunity, which I do not recollect has
happened to any other man, of fhewing his obedience
to the laws and to the civil magiftrate. After the re-
fuſal of bail by his judges before fentence, in his way
to priſon, he was refcued by his countrymen. The of-
ficers of juſtice, who had the charge of him, were in
the utmost danger. Mr. Wilkes had that day the
happineſs of preferving three lives, although perhaps
not the three he would have chofen from the whole
fpecies. Afterwards by a ftratagem, and in diſguiſe,
he eſcaped into the prifon, to which he had been fen-
tenced in the morning. The Marfhal foon came, ftill
pale, trembling, and aghaft, ready to fall on his knees
no leſs from fear than gratitude, thanked him in the
warmeft terms, and faid, "it was impoffible he could
* The Reverend Mr. John Horne, Minifter of New-Brentford.
"" continue
<
[
ĺ 89 ]
1
continue in the king's bench prifon twenty-four
裴
​<< hours, if there was any honour in government."
He has now been there above half a year, and I dare
ſay he will paſs the next eighteen months in the fame
place, for although the envenomed caufe of all his,
and the nation's wrongs is fled, yet the fting is left
behind. The accursed thing is not now indeed in the
midst of us, but we do not know how foon the venge-
ance of heaven may for our fins chaſtiſe us in as full
a meaſure of wrath as before. Since his letter to the
king in the beginning of March, Mr. Wilkes has made
no* application to any perfon whatever refpecting his
pardon, and I prophecy that he will be left where he
is till the 18th of April 1770, with only the teſtimony
of a good confcience, the fatisfaction of having done
real fervices to his country, and the love of a grate-
ful nation. He will then emerge with dignity and
glory, for I believe he will have the confidence of the
public enough to carry through many conftitutional
points of liberty, in conjunction with other true lovers
of their country, and perhaps to compleat the plan of
freedom, which even the glorious revolution left im-
perfect.
In the mean time under the weight of the moſt un-
juft oppreffions, Mr. Wilkes's friends have the com-
fort of finding that he poffeffes peace and fortitude of
mind, that he does not bate a jot of heart or hope, but
fill bears up and steers right onward. He might add
that all he has fuffered has been
In liberty's defence, his noble task,
Of which all Europe rings from fide to fide.
Many perfons affecting to believe that the king never re-
ceived that letter, Sir Jofeph Mawbey delivered into his ma-
jeſty's own hands a petition from Mr. Wilkes in the month
following the date of this epiftle.
FA
I hope
[ 90 ]
2
I hope he will atone for the diffipation of top gay a
youth, and that the rest of his life will be ufefully
employed for this nation, whether in the gloom of a
priſon, or at large among chearful and genial friends,
of fenfe and honour, with a fteady, difintereſted, and
inviolable attachment to the cauſe of liberty. After
a few tedious months he will look back with joy on
his paſt ſufferings, and the happy confequences of
them to this kingdom. That reflection will give a
keener reliſh to what I believe he may now expect
fince his return to England. I trust that he will no
more be a wanderer, nor loft in the primroſe path of
pleaſure, but that we fhall fee him on every great oc.
cafion facrificing to public virtue, at all times happy
and free in his native country, in the bofom of phi-
lofophy and friendſhip. Although he has fuffered a
long exile, and been broken on the wheel of fortune,
yet being at laſt reſtored to the land of freedom, when
all his cruel wounds are at length healed and forgot-
ten, I expect that among his houfhold deities he will
erect a temple to LIBERTY, and dedicate an alter for-
tunæ reduci.
I am, &c.
AX
1
[91]
3
AN APPENDIX, CONTAINING PAPERS REFERRED TO IN
THE TWO FOREGOING LETTERS.
No. 1.
Page 41.-"A general warrant may carry horror and
"cruelty to every family and every individual in the
" iſland."
The general warrant.
George Montagu Dunk, Earl of Halifax, Vif-
L. S. count Sunbury, and Baron Halifax, one of the
lords of his majeſty's moſt honourable privy
council, lieutenant-general of his majeſty's for-
ces, and principal ſecretary of ſtate. ·
Theſe are in his majeſty's name to authorize and
require you, (taking a conftable to. your affiftance) to
make ſtrict and diligent fearch for the authors, printers,
and publiſhers of a feditious and treaſonable paper, en-
titled the North Briton, No. 45, Saturday April 23,
1763. Printed for G. Kearfley, in Ludgate-ſtreet,
London; and them, or any of them having found, to
apprehend and feize, together with their papers, and
to bring in ſafe cuftody, before me, to be examined
concerning the premifes, and further dealt with accor-
ding to law; in the due execution whereof, all mayors,
sheriffs, juftices of the peace, conftables, and all other
his majeſty's officers civil and military, and loving
fubjects, whom it may concern, are to be aiding and
affifting to you as there fhall be occafion. And for fo
doing, this ſhall be your warrant. Given at St. James's
the twenty-fixth day of April, in the third year of his
majeſty's reign.
To Nathan Carrington, John Money,
James Watſon, and Robert Black-
more, four of his majeſty's meffen-
gers in ordinary.
DUNK HALIFAX.
No.
[ 92 ]
No. 2.
Page 42.-" Nor the warrant of commitment to the
«Tower.'
دو
The warrant of commitment.
Charles Earl of Egremont, and George Dunk Earl of
Halifax, lords of his majeſty's moſt honourable privy
council, and principal fecretaries of ſtate.
Theſe are in his majefty's name, to authorize and
require you, to receive into your cuftody the body of
John Wilkes, Efq; herewith fent you, for being the
author and publiſher of a most infamous and feditious
libel, entitled the North Briton, No. 45; tending to
inflame the minds, and alienate the affections, of the
people from his majeſty, and to excite them to traite-
rous infurrections againſt the government; and to keep
him fafe and cloſe, until he fhall be delivered by due
courfe of law. And for fo doing this fhall be your
warrant. Given at St. James's, the 30th day of April
1763, in the third year of his majeſty's reign.
EGREMONT. L. S.
DUNK HALIFAX, L. S.
To the right honourable John Lord
Berkley of Stratton, conftable of
his majeſty's Tower of London,
or to the lieutenant of the faid
Tower, or his deputy.
No. 3.
Page 45 The record, being in the king's-bench,
" has been altered,"
Extract from an enquiry into the doctrine lately propa-
gated, concerning attachments of contempt, the al-
teration of records, and the court of ftar-chamber,
4to. London 1769. Printed for Williams, page 49.
Where
I 93 ]
Where liberty and protection are the principal objects
of government, nothing can be more alarming and
dangerous to the people, than the judges affuming a
power of employing their own difcretion, inftead of
the law, in the adminiſtration of juſtice. It will be a
fuperlative degree of folly to fuppofe ourſelves governed
by law, if the judges can exceed or abrogate the rules.
of it, and puniſh us for faying we are oppreffed. The
law is matter of inſtitution, a judge hath nothing to
do with the reaſons of it; his office is merely miniſte-
rial, and folely to declare what it is, not what it* fhould
be; there the line of his power is drawn. He who
paffes it either through vanity, preſumption, or cor-
ruption, is a traitor to the public. The ſpirit of the
common law, in the ftrictness of holding the judges to
fuch precifions, as not to be authorized to amend any
record before them, even in a fyllable or a letter, is
not generally perceived, or the force of it underſtood,
which hath made fome judges more bold than others
in this refpect. Nevertheless, it is the fecret wherein
the ftrength of the conftitution lies, as the ftrength of
Sampſon did in his hair. It is the great and only effec-
tual bar that human wiſdom can raiſe to preſerve the
public ſafety from violation by the judges. Was it
otherwiſe, as they are men fubject to the vices and fol-
lies of men; arrogance, caprice, prejudice, motives of
ftate and party, might ufurp the feat of juftice, and
the law be forced to give way to whatever an over-
bearing judge ſhould be pleaſed to call common fenſe.
* Sir William Parkins, who was concerned in the affaffination
plot, againſt King William III. on his trial before Holt Ch. Juft.
prayed the affiſtance of counſel in purſuance of ſtat. 7. Will. III.
c. 3. but though this act had paſſed the royal affent before the
trial came on, yet it came on before the act took place, viz. the
very day next preceding its commencement; upon which occafion
Holt faid, "We must conform to the law as it is at preſent, not
"to what it will be to-morrow, we are upon our oaths fo to do.”
Foft. Cr. Law. 230. 232. 4 St. Tri. 630. 631.
Nothing
[ 94 ]
Nothing therefore concerns the prefervation of civil li-
berty, as well as property, more effentially than keep-
ing up the old conftitutional bar againſt the judges
exercising any diſcretion of their own not purely legal.
This is a fubject of very ferious importance, and hath
been defined with fome ſpirit.
A modern moſt elegant writer, feems to have pro-
ftituted his character as a lawyer, in no inſtance fo
much, as in that, wherein he is pleaſed to cenfure the
judges, for fcrupulouſly declining to alter their records,
without the fanction of an act of parliament *; how-
ever he hath the candour to admit, " that they may,
through a decent degree of tenderneſs, excufe them-
"felves from amending in criminal cafes; that they
"need not grant an amendment, where it would work
❝ an injuſtice to either party; or where he cannot be
sc put in as good a condition as if his adverſary had
"made no miſtake *”
cr
A late learned and judicious + writer fays, " he
❝would aſk by what authority or book caſe, a ſingle
judge hath an undoubted right to fummonfe attornies
"to his chambers, and direct amendments in the re-
પ
cords of the court? and whether the courfe (which
"is the law) of the court, hath not conſtantly been,
"where either party is defirous of altering a record,
"to apply by counſel in open court for that purpoſe ?
"and the reafon is obvious, viz. becaufe a record be-
ing the act of the court, that is of all the judges
"thereof, they ought all to be applied to, for leave to
"make an alteration in their own act.”
66
L. C. J. † Coke ſays, all cauſes ought to be heard,
ordered and determined before the judges of the king's-
courts, openly in the king's courts, whither all perfons
may refort; and in no chambers, or other privatę
*
3
Black. Com. 409.
The author of the preface to Dig. Lib, † 2 Inft. 103. 104.
places
*
[ 95 ]
places for the judges are not judges of chambers, but
of courts, and therefore in open court, where the par-
ties, counfel, and attornies attend, ought orders, rules,
awards and judgments to be made and given; and not
in chambers, or other private places, where a man may
lofe his cauſe, or receive great prejudice or delay in his
abſence for want of defence; nay, that judge who or-
dereth or ruleth a cauſe in his chambers, though his
order or rule be juft, yet offendeth he the law, becauſe
he doth it not in court. And the opinion is good and
agreeable to this law, qui aliquid ftatuerit parte inauditâ
alterâ, æquum licet ftatuerit, baud æquus fuerit, neither are
the cauſes to be heard upon petitions, or ſuggeſtions
and references, but in curiâ domini regis.
Motion in arreſt of judgment on an indictment for
libelling the government, and the objection made was,
for that the charge, which was laid to the defendant,
was not fo certain and particular as it ought to be, for
the libels were not fet forth in hæc verba, as they
ought; neither was the defendant charged directly with
writing or making the very words and fentences ex-
preffed in the indictment, but only that he made and
wrote libels, in which among others, was contained
"according to the tenor" and " to the purport* fol-
"lowing." After the above cafe had depended in the
king's-bench feveral terms, and after it had been fe-
veral times argued at the bar, it was agreed by Holt
chief juſtice, Rokeby and Turton juſtices, upon folemn
argument on the + bench, that if the indictment had
been for a libel, containing, among other, "to the
purport following," it had been ill, becauſe it had
not imported, that the words were the fpecific words
which were in the § libel. The court muſt be judge
of the words themſelves, and not of the conftruction
* Carth. 408. 3 Salk. 226. pl. 5.
12 Mod. 218. 3 Salk. 226. pl. 5.
3 Salk, 226. pl, 5.
+ Lord Raym. 415.
§ Lord Raym. 415.
the
[96]
}
the profecutor puts upon them, but "according to
"the tenor following" imports the very words * them-
felves. For the tenor of a thing is the tranſcript ;
and Rokeby faid the words "to the purport," were
loofe and uſeleſs words; and the words " according to
"the tenor," being of a certain and more ſtrict fignifi-
cation, the force of the latter was not hurt by the
former, which Holt chief juftice agreed to; and if
on the trial, the words in the libel had not been exactly
the fame, with the words in the indictment, the de-
fendant could not have been found guilty §.
The juft now cited ordinance of Edward the firſt was
fo rigidly obſerved, that Ralph de Hengham, chief ||
juſtice of England in that king's reign, moved with
compaffion for the circumftances of a poor man, whơ
was fined 13s. and 4d. in an ** action of debt, cauſed
the record to be rafed, and made 6s. and 8 d. he
was fined 800 marks for this offence.
†
The learned Doctor Blackstone's remarks on Heng-
ham's cafe, feem rather equivocal, for in the body §§
of his commentaries, he obſerves that, " in ftri&tnefs
"it was certainly indefenfible," and in the §§ note he
fays, "certainly his offence was nothing very atrocious
66
or difgraceful; for though removed from the king's-
"bench at this time, we find him about twelve years
"afterwards made chief juftice of the common pleas,
" in which office he continued till his death." Would
not this reaſoning of the doctor's be much more con-
clufive, were there not inftances of gentlemen of the
long robe, who, finding the buſineſs of the bar not
* 11 Mod. 79. 85. 96.
3 Salk. 225. 226. pl. 5.
219. 3 Salk. 225.
3 Salk. 226. pl. 5.
‡ 2 Salk. 417.
† 2 Salk. 661.
§ 12 Mod. 218.
|| 4 Inft. 255. H. H. P. C. 649.
†† 4 Inst. 255. Fortelc.
** 3 Inft. 72. Fortefc. Rep. 393.
Rep. 393.
‡‡ 2 Rich. 111. 10. 3 Inft. 72. 4 Inſt. 255.
Fortefc. Rep. 393.
§§ 3 Black.
Com, 408.
anſwer,
[ 97 ]
t
anfwer, have had intereft, by means of family con
nections, to advance themſelves to the bench?
With the * fine of 800 marks the clockhouſe at
Weſtminſter was builded, and furniſhed with a clock,
which continueth to this day .
Hengham's cafe juftice Southcot remembered, when
Catlyn Ch. Juft. B. R. in the reign of queen Elizabeth
would have ordered a razure of a § record in the like
cafe, which Southcot utterly denied to affent unto, and
faid openly § in court, that he meant not to build a
clockhouſe.
Thus we ſee how very cautious the judges wéré for-
merly of rafing a record, and how very feverely the
lord chief juftice of the court of king's-bench was fined
for doing it, (eight hundred marks, a large fum in
thoſe days,) though the chief juſtice's offence was an
act inſpired by humanity alone, and done from a mere
motive of compaffion for a poor man, who had been
exceffively, and confequently illegally fined.
Extract from the political regiſter for July 1768.
The following is faid to have been the conclufion of
Mr. Serjeant Glynn's fpeech [in the king's-bench]
in Mr. Wilkes's caufe.
My Lords,
I have now done with my client and his cauſe; your
fordſhips will determine according to your wifdom.
But here let me intreat you for the fake of the ſafety of
* Which fum was entered on the roll. 4 Inft. 255.
It hath been ſaid, that the original bell to the clock is the
fame that now hangs in St. Paul's ſteeple. Upon this ſtory it is
obfervable, that the first introduction of clocks was not till 100
years afterwards, about the end of the fourteenth century.
3 Black. Comp. 408. in note (x).
‡ 3 Inst. 72. 4.Inft. 255.
§ 4 Inst. 255.
every
ве
[ 98 ]
every fubject of this nation, that your lordships will
pleaſe to fix fome limits, to the diſcretionary power of
altering records; that we may know for the future when
we can be certain of the caufe we are to plead; and
that the fubject may not be liable to ruin at the difcre-
tion of a judge.
In the king's-bench.
Middlefex.-The king againſt John Wilkes, Efq.
Francis Barlow, of the crown-office, in the Temple,
and William Hughes of the fame place, feverally make
oath; and firſt the deponent Barlow for himſelf faith,
that on the eighteenth day of February laft, he received
directions from Mr. Wallace or Mr. Webb, to apply to
a judge to get the information againſt the defendant
amended, by ſtriking out the word purport and inſerting
in its ftead the word tenor, that he this deponent did
accordingly apply to the right honourable Lord Manf-
field, and obtained a fummons to fhew cauſe why it
ſhould not be amended; a copy whereof is hereunto
annexed: and this deponent, immediately after he had
obtained the fame, fent two copies thereof, viz. one
to the other deponent, Hughes, who was clerk in the
court for the defendant, and the other copy to Mr.
Philips, folicitor for the faid defendant; and this de-
ponent was informed, and does believe, that fuch co-
pies were left that night at their reſpective houſes; and
this deponent Barlow further fays, that in confequence
thereof, he this deponent, on Monday the twentieth
day of the fame month of February in the morning,
attended Lord Mansfield at his houſe, and there met
the other deponent, Hughes, and Philips; and this
deponent remembers, that Lord Mansfield aſked them
what objection they had to fuch an amendment, and
that they or one of them made anfwer, that they could not
confent; and this deponent remembers, that Lord
Mansfield
[ 99 ]
}
Mansfield faid he did not aſk their confent, but wanted
to know what their objections were, and aſked them if
it was not uſual or the common practice to amend in-
formations, or to that or the like effect; and that Lord
Mansfield mentioned or read from a book or manu-
fcript, which his lordſhip had in his hand, ſeveral cafes
of amendments; and that afterwards his lordſhip made
an order to amend the information in this cauſe, a
copy of which order is hereunto annexed; and this
deponent, Hughes, for himſelf faith, that he remem-
bers to have been ſerved with a copy of ſuch ſummons,
and that he attended Lord Mansfield when ſuch order
was made as above fet forth; and accordingly, to the
beſt of his remembrance and belief, what is above de-
pofed by the other deponent Barlow is true.
}
FRANCIS Barlow.
WILLIAM HUGHES.
Sworn by the deponent Francis Barlow,
the 22d of January, 1765, at my
chambers in Serjeant's-inn,
Before me, E. WILMOT.
Sworn by the deponent William Hughes,
in the king's-bench treaſury-chamber,
Weſtminſter-hall, the 23d day of Ja-
nuary, 1765.
E. WILMOT.
Middleſex. The king againſt John Wilkes, Efq;
On an information for publiſhing a libel, intitled the
North Briton.
Let the defendant's clerk in court, agent, attorney,
or folicitor, attend me at my houſe in Bloomſbury-
ſquare, on Monday, the 20th day of February inſtant,
at eight o'clock in the morning, to fhew cauſe why the
information in this caufe fhould not be amended by
ftriking out the word "purport" in the feveral places,
VOL. III.
G
where
1
3
3
[100]
}
where it is mentioned in the faid information (except
in the first place) and inferting inftead thereof, the
word "tenor."
Dated this 18th day of February, 1764.
MANSFIELD.
Middleſex. The king againſt John Wilkes, Efq;
On an information for publiſhing a libel, intitled the
North Briton.
Upon hearing the clerks in the court on both fides,
I do order that the information in this cauſe be amend-
ed, by ftriking out the word " purport" in the feveral
places where it is mentioned in the faid information
(except in the first place) and by inſerting inflead there-
of, the word "tenor."
Dated this 20th day of February, 1764.
MANSFIELD.
The fame alteration was made in the cauſe refpecting
the Effay on Woman. This alteration feems trifling
in appearance, but is in reality of the utmost impor-
tance. It totally changed the nature of the defence.
If the word purport had remained, upon which Mr.
Wilkes's counſel were prepared to argue, fcarcely any
two men could have been found, who would have
agreed in a verdict finding him guilty to the purport,
or effect charged in the information; but by the alte-
ration to the word tenor, the purport was not in quef-
tion, and the defence was changed into a critical com-
pariſon of the words, letters, and figures in the papers
publiſhed with thofe in the information filed, for which
no time was allowed. The cauſes were tried the very
next morning, fo' that Mr. Wilkes's counfel were de-
prived of making the defence, for which they were
prepared, and forced upon a defence, which they had
neither time to confider, nor reaſon to apprehend.
Mr. Wilkes himſelf was at that time in another king-
dom very dangerously ill.
No₁
[101]
No. 4.
Page 7.-" The evafion of the habeas corpus.
Extract from the St. James's chronicle of March 2,
1769.
Di tibi formam-fed tu corpus eras fine pectore. HOR.
It is one of the peculiar advantages which this nation
enjoys beyond any other in the world, that an appeal
may always be made to the public at large, although
refuſed at every other bar in the kingdom, and that
while the printers of our English news-papers do their
duty, the body of the people will ſcarcely fail of be-
ing well informed of every meaſure of adminiſtration,
which can affect their laws or liberties. I bring now,
Sir, to the bar of the public, an enquiry into the moſt
alarming attack on the liberty of the fubject, by the
evafion of the habeas corpus in the cafe of Mr. Wilkes,
which has not yet been enquired into, cenfured, pu-
niſhed. In proof of what I fhall affert, I tranſcribe
for your paper five authentic pieces, which have not
yet appeared in print.
It is remarkable that to evade the babeas corpus, the
cuftody of Mr. Wilkes was changed no leſs than four
times in half a day, as if it was a determined point to
infult, and make a mockery of, the most important act
of parliament, which ever paffed for the liberty of the
ſubject. On Saturday, April 30, 1763, about noon,
we find him in the cuſtody of Robert Blackmore and
James Watſon, under the general warrant; he is foon
carried by them to the ſecretary of ſtate's; then he is
in the cuftody of the Earls of Egremont and Halifax,
their under ſecretaries, law clerk, and folicitor to the
treaſury; they transfer him over to George Collins and
Thomas Ardran; and laftly, George Collins and Tho-
mas. Ardran deliver him to the deputy-lieutenant of
the Tower, to be kept a cloſe priſoner. The court of
G 2
common
[ 102 ]
common pleas being fitting at the time of the meffen-
gers' feizing Mr. Wilkes at his houfe by the general
warrant, application was directly made to that court
for the habeas corpus, which was ordered to iffue imme-
diately. Mr. Wilkes himſelf informed the fecretaries
of ſtate of this. The two following affidavits, the one
of Richard Hopkins, Efq; member for Dartmouth, a
clerk of the board of green cloth, the other of John
Walsh, Efq; member for Worcester, will prove that
the law counſel to the fecretaries of ftate, and the foli-
citor to the treaſury, knew this, while Mr. Wilkes was
at Lord Halifax's houfe. He was foon hurried away
to the Tower, and thus the firft habeas corpus, directed
to Blackmore and Watſon, was wickedly evaded. It
was ſcarcely poffible for the friends of Mr. Wilkes to
ufe more expedition in a law bufinefs. The writ was
moved for at noon, and granted immediately; as
foon as the office was opened in the afternoon, it was
expedited, and ſerved on each of the meffengers the
ſame evening: in vain, for minifters and lawyers were
determined the ſubject ſhould not avail himſelf of an
act of parliament against an act of power. This at-
trocious proceeding remains ftill to be enquired into,
ftill to be puniſhed.
Since the time of Charles II. when the babeas corpus
act paffed, I believe fo deliberate, fo fraudulent, and
fo barefaced an evafion of it, when all the delinquents
were apprized before-hand of their guilt, was never at-
tempted. The anſwer of the two meffengers, Black-
more and Watſon, to the moſt peremptory order of a
court of juſtice to bring the priſoner immediately be-
fore them, together with the cauſe of his ſeizure, was
only that they had him not in their cuftody, having pur-
poſely given him into that of another. No court of
juſtice was ever before fo trifled with by the low tools
of power, when the liberty of an Engliſhman was at
ftake. The law commanded, but its authority was
trampled
[103]
;
trampled upon by the officers of the crown. I have
not heard of any puniſhment on either of the meffen-
geis, nor of the fecretaries of ftate being fo much as
queftioned on this head; but I am fure if fuch a re-
turn to a babeas corpus is deemed fufficient or fatisfac-
tory, it is in the power of a minifter of ftate to ſeize
illegally any member of either houſe, and by dodging
from place to place, and fhifting the cuftody of the
priſoner, not four times in half a day, but only four
times a month, to impriſon him for life, even within
an iſland, which in vain boaſts of the firm bulwarks of
its liberty, and the protection, which the laws afford
the loweſt fubject againſt the moſt powerful.
I fhall only farther obferve, that theſe two fecretaries
were the political legacy of the Earl of Bute in 1763,
on his nominal abdication.
In the common pleas.-The habeas corpus.
JONES. George the third, by the grace of God of
Great Britain, France, and Ireland, king, defender of
the faith, and ſo forth, to Robert Blackmore and James
Watſon, greeting, We command ye, and each of ye,
that ye have the body of John Wilkes, Efq; by what-
foever name, or addition of name, he may be named or
charged under your cuftody, taken and detained, as it
is faid, together with the day and caufe of the taking
and detaining the faid John Wilkes before the juftices
of our court of common bench at Weſtminſter, in the
great hall of pleas, there immediately after the receipt
of this our writ, to do and receive all thoſe things,
which the fame court fhall then and there confider of
in this particular. Witneſs Sir Charles Pratt, Knt. at
Weſtminſter, the thirtieth day of April, in the third
year of our reign.
April 30, 1763.
By rule of court,
Beardmore by Stanny nought,
Endorfed, H. Gould.
G 3
Mem.
[ 104 ]
Mem. Delivered copy to Mrs. Watſon, and the
original to Mrs. Blackmore, before eight o'clock.
A. B. [Arthur Beardmore.]
April 30, 1763.
In the common pleas.-Mr. Walſh's affidavit.
John Walsh, of the parish of Saint George, Hano-
ver-fquare, in the county of Middlefex. Efq; maketh
oath, and faith, that he this deponent was preſent on
Saturday laft, in this honourable court, at a time when
a rule was moved for, and granted on behalf of John
Wilkes, Efq; who was then in cuftody, for leave to
iffue out a writ of habeas corpus, in order to bring the
faid John Wilkes into court, together with the cauſe
of his detention. And this deponent faith, that very
foon after this honourable court had granted a rule for
that purpoſe, he, this deponent, went to the houſe of
the right honourable the Earl of Halifax, in Great-
George-ſtreet, Weſtminſter, and requeſted the favour
to ſpeak to the faid John Wilkes, where he was at firſt
told that he could not ſpeak to the faid John Wilkes ;
but this deponent was afterwards informed he might
ſpeak to the faid John Wilkes in the prefence of Mr.
Philip Carteret Webb, folicitor of the treaſury, and
Lovell Stanhope, Efq; and thereupon this deponent
did (in the preſence and hearing of the faid Philip Car-
teret Webb and Lovell Stanhope) inform the faid
John Wilkes, that this honourable court had granted
him a writ of habeas corpus.
Sworn May 2, 1763, in the new treaſury
chamber at Westminster, befor me,
JOHN WALSH.
H. GOULD.
In the common pleas.-Mr. Hopkins's affidavit.
Richard Hopkins, of the parish of Saint George, Ha-
nover-ſquare, in the county of Middleſex, Efq; maketh
oath,
[105]
1
oath, and faith, that foon after this honourable court.
had on Saturday laſt granted a rule on behalf of John
Wilkes, Efquire, who was then in cuftody, he, this
deponent, went with John Walsh, Efquire, to the
houſe of the right honourable the Earl of Halifax, in
Great-George-ſtreet, Weſtminſter, and requeſted the
favour to ſpeak with the faid John Wilkes, where they
were firſt told that they could not ſpeak to the ſaid
John Wilkes; but afterwards this deponent and the
faid John Walsh, were informed that they might
ſpeak with the faid John Wilkes in the preſence of
Philip Carteret Webb, Efquire, folicitor for the crown,
and Lovell Stanhope, Efquire; and thereupon the
faid John Walſh did (in the prefence and hearing of
the faid Philip Carteret Webb, Lovell Stanhope, and
of this deponent) inform the faid John Wilkes, that
this honourable court had granted him a writ of ha-
beas corpus.
RICHARD HOPKINS.
Sworn May 2, 1763, in the new
treaſury-chamber, at Weſtminſ-
ter, before me,
H. GOULD.
Charles Earl of Egremont, and George Dunk Earl of
Halifax, lords of his majefty's moſt honourable
privy council, and principal fecretaries of ſtate, &c.
Theſe are, in his majefty's name, to authorife and
require you to deliver into the cuftody of the conſtable
of the Tower of London, the body of John Wilkes,
Efq; for which this fhall be your warrant.
Given
under our hands and feals this thirtieth day of April,
1763.
EGREMONT. (L. S.)
DUNK HALIFAX. (L. S.)
To George Collins, and Thomas
Ardran, two of his majefty's
meffengers in ordinary.
G4
1
Received
[106]
Received this 30th day of April, 1763, of Mr.
George Collins and Mr. Thomas Ardran, two of his
majefty's meffengers, the body of John Wilkes, Efq;
committed to the Tower by the right honourable the
Earls of Egremont and Halifax.
Tower.
CHARLES RAINSFORD,
deputy lieutenant.
Extract from the St. James's Chronicle of Dec. 29,
1768.
The affidavit of John Gardiner, Efq;
London, to wit.
John Gardiner, of the Inner Temple, Efq; barrif
ter at law, maketh oath and faith, that about twelve
or one o'clock in the forenoon, on Saturday the thir-
tieth day of April, one thouſand feven hundred and
fixty-three; he, this deponent (being in Weſtminſter-
hall) heard that a motion was then making in his
majeſty's court of common pleas, for an habeas cor-
pus to bring up the body of John Wilkes, Efq; who,
as this deponent was then informed, was a priſoner in
the cuſtody of ſome of his majeſty's meffengers in or-
dinary; and this deponent faith, that he, immediately
upon receiving fuch information, went into the faid
court of common pleas in order to fee the event of
the ſaid motion. And this deponent further faith, that
as foon as the faid court had ordered the faid writ
of habeas corpus to iffue, this deponent went to the
houfe of the faid John Wilkes, Efq; in Great George-
ſtreet, Weſtminſter, at the door of which houfe this
deponent ſaw ſeveral gentlemen (friends of the faid
John Wilkes, as this deponent then underſtood and
believed) who informed this deponent that they could
not gain any admiffion into the faid houfe; and fur-
ther told this deponent that the king's meffengers were
in poffeffion of the faid houſe and kept the door there-
of s
[ 107 ]
of: whereupon this deponent went up to the door of
the ſaid houſe and knocked at the fame, which was
foon opened, and kept a little way open, by fome
perſon or perſons from within. This deponent then
afked Mr. Wilkes's fervant, who appeared through
the ſaid opening of the faid door, whether his maſter
was within? Such fervant returned for anſwer, that
the faid Mr. Wilkes was not, and added, that the faid
Mr. Wilkes had been carried to, and then was at
Lord Halifax's. This deponent then aſked the faid
fervant to let this deponent into the faid Mr. Wilkes's
houſe; to which the faid fervant made anſwer, that it
was not in his power, for that the meffengers were in
poffeffion of the door. This deponent then defired to
fee fuch meffengers: upon which one of the faid mef-
fengers (whofe name was Blackmore, as this deponent
believes) came in fight. This deponent then aſked
the faid meffenger, by what authority he kept Mr.
Wilkes's friends out of his houfe? Such meffenger
made anſwer, that he acted by virtue or under the au-
thority of the ſecretary or ſecretaries of ſtate, or uſed
words to that or the like purport or effect. This de-
ponent then defired fuch meffenger to fhew his au-
thority, or produce the orders of the fecretaries of
ſtate; which fuch meffenger refufing to produce, this
deponent then turned his difcourfe to the aforefaid fer-
vant of Mr. Wilkes, and afked him if his mafter had
given any orders to keep his friends out of his houfe?
Such fervant replied, his mafter had given no fuch or-
ders; whereupon this deponent turned round to the
aforefaid gentlemen, whom he found at the faid Mr.
Wilkes's door as aforefaid, and defired them to fol-
low him, and with one puſh or ſhove opened the faid
door, and got into the faid houſe, and went with all
the faid gentlemen into the front parlour of the faid
houfe (among the faid gentlemen were, to the beſt of
this deponent's belief and recollection, Mr. Townſend,
Mr.
[108]
108 ]'
Mr. Walsh, Mr. Hopkins, Mr. Cotes, Mr. Philips,
and ſeveral others): this deponent then talked with
the ſaid meffengers, and told them that he, this depo-
ment, thought they had acted in a moft illegal and un-
juftifiable manner, and that he, this deponent, appre-
hended they would be feverely puniſhed for fuch an
outrage upon the laws of their country. Soon after
Mr. Wood, (who, as this deponent was informed and
believes, was then deputy fecretary of ftate) came in-
to the faid parlour of the faid Mr. Wilkes's houſe, and
immediately interrogated the faid meffengers, (in a
paffionate tone of voice as this deponent apprehended)
Who had fent for him? Which queſtion the faid mef-
fengers not immediately anſwering, the fame Mr.
Wood repeated the fame once again or more. Some
of the meffengers then faid, they had all fent for him,
for that thofe gentlemen (meaning, as. this deponent
believes, this deponent and the faid other friends of
the faid Mr. Wilkes) would force their way into the
houſe. The faid Mr. Wood then aſked, (in the fame
haughty tone of voice) Who was the perſon that would
force his way, or would come in? or ufed words to
that or the like purport or effect. This deponent made
anſwer, and declared that he was one of the perfons
that would come into the faid houſe, but that he knew
of no force by himſelf or the faid friends of Mr.
Wilkes, or uſed words to that or the like effect; and
all or moſt of the ſaid gentlemen, who were friends of
the faid Mr. Wilkes, joined in the faid declaration.
Soon after this, one Philip Carteret Webb made his
appearance in the faid houfe, and entered into fome
private diſcourſe with the faid Mr. Wood; after which,
to the beſt of this deponent's recollection as to point
of time, the right honourable Earl Temple came into
the ſaid parlour, when fome diſcourſe paffed between
the faid earl and the faid Mr. Wood, and the faid Mr.
Webb, and after a good deal of altercation between
the
[ 10 ]
the faid Mr. Wood, and the faid Mr. Webb, and the
faid friends of the faid Mr. Wilkes, the faid Mr.
Wood and Mr. Webb (who ſeemed to take upon
themſelves the fole direction and difpofition of the faid
Mr. Wilkes's houfe, and of every thing therein) aſked
the ſaid earl if he choofed to attend the officers or
meffengers while they were fealing up all the faid Mr.
Wilkes's papers? which the ſaid earl then refuſed.
The faid Mr. Wood and Mr. Webb then made the
fame offer to this deponent, and to the other friends
of the faid Mr. Wilkes. Soon after this deponent
quitted the houfe of the faid Mr. Wilkes, and went
with Mr. Beardmore (the folicitor of the faid Mr.
Wilkes) to the Tower of London, where the faid Mr.
Wilkes had been juft committed a prifoner, as this
deponent had been informed; and this deponent there
applied to Major Rainsford, who then commanded in
the faid Tower, and defired to be admitted to the faid
Mr. Wilkes, in order to confult with the ſaid Mr.
Wilkes, and fix upon a legal mode or plan for his
enlargement; but the faid Major Rainsford then ac
quainted this deponent, that he had received orders
from the ſecretaries of ftate not to admit any perſon
whatever to ſpeak with, or fee the faid Mr. Wilkes ;
and further informed this deponent, that he (the ſaid
Major Rainsford) had juſt before refuſed Lord Tem-
ple the like admittance to the ſaid John Wilkes; and
this deponent further faith, that, to the beſt of this
deponent's recollection and belief, the faid Major
Rainsford demanded of this deponent his name, and
informed this deponent that he had orders to take
down the names of all perfons who fhould apply for
admittance to the faid Mr. Wilkes. And this depo-
nent upon his oath aforefaid, further faith, that be-
tween the hours of twelve and one, on Sunday May
the firft, one thouſand feven hundred and fixty-three,
he, this deponent, called again upon the faid Major
Rainsford,
[110]
་
Rainsford, and again defired the faid Major Rainsford
to admit him, this deponent, to fee and confult with
the faid Mr. Wilkes; but the faid Major Rainsford
then again refuſed this deponent, as he did foon after
feveral noblemen and gentlemen, and Mr. Heaton
Wilkes (the brother of the faid John Wilkes) who
all applied to the faid Major Rainsford for a like ad-
mittance to the faid John Wilkes in the prefence of
this deponent. The faid Mr. Webb (who appeared
to be, and was, as this deponent believes, a director
and adviſer in all the proceedings againſt the ſaid John
Wilkes) then being preſent in the faid Major Rains-
ford's room, this deponent applied to the faid Mr.
Webb for admittance to the faid Mr. Wilkes. The
faid Mr. Webb thereupon defired the faid Major
Rainsford to permit this deponent to fee and converſe
with the faid Mr. Wilkes. The faid Major Rainsford
anſwered, his orders were to admit no perfon to Mr.
Wilkes, and that he could not comply with what the
faid Mr. Webb had requeſted, or ufed words to that
or the like purport and effect. The faid Mr. Webb
then replied, that it could not be the intentions of the
fecretaries of ſtate to keep the faid Mr. Wilkes ſo cloſe
a prifoner, and again defired the faid Major Rainsford
to admit this deponent to the faid Mr. Wilkes, and
added, that he (the ſaid Mr. Webb) would indemnify
him (meaning the faid Major Rainsford); to which
the faid Major Rainsford then further anſwered, that
he could not comply with the faid Mr. Webb's re-
queft, nor would he break or difobey orders, or uſed
words to that or the like purport and effect. The
faid Mr. Webb then faid, that if either of the fecre-
taries of ſtate were in town, he would apply to them
and obtain an order to admit this deponent to the faid
Mr. Wilkes, and that he would either fend or. bring
fuch order for fuch admittance in the afternoon. This
deponent, confiding in the faid promiſe of the ſaid
Mr
[ 11 ]
Mr. Webb, went again to the ſaid Tower between eight
and nine o'clock of the fame firft of May, and again
applied to the faid Major Rainsford for fuch admit-
tance, but was again refuſed admittance by the faid
Major, who then informed this deponent that he had
not received any orders from the fecretaries of ſtate,
nor had he heard any thing from the faid Mr. Webb.
And this deponent farther faith, that he, this deponent,
on Monday the ſecond of May, between the hours of
two and three o'clock in the afternoon, again applied
to the faid Major Rainsford for admittance to the faid
John Wilkes, but was again denied fuch admittance
by the ſaid Major Rainsford. And this deponent fur-
ther faith, that he has been ready and willing to teſtify
all the facts aforefaid, before the honourable houſe of
commons, but that the order for the attendance of this
deponent before the ſaid honourable houſe being fur-
ther adjourned or enlarged to the 27th day of January
next, this deponent cannot then attend the faid houſe,
as he, this deponent, had taken his paffage for the
Weft-Indies, before he, this deponent, was ſerved
with any order to attend the faid honourable houſe.
J. GARDINER.
Sworn at the Manfion-houſe, in the city of London,
this 17th day of December, in the year 1768,
before me,
SAMUEL TURNER, Mayor.
No. 5.
Page 7.
"The breach of privilege by ſerving a
"member of parliament with a fubpana."
Extract from the trial of the feven bishops. State-
trials, vòl. iii. page 738.
Sir Robert Sawyer.
There is another thing we have to fay to this war-
rant, (for I am making objections against the validity
of
[ 112 ]
of this commitment) it does not appear that there was
any oath made, and therefore the court muft adjudge
that there was no oath made, and then no man ought
without an oath to be committed, much lefs a peer;
but that which we chiefly rely upon, is, that my lords
ought not to have been committed for this, which is
but a miſdemeanor at moſt: and if they uſe it as pro-
cefs to bring my lords the bishops to anſwer an infor-
mation, we fay, by law no fuch procefs can be taken
out againſt the perfons of peers for bare miſdemea-
nors. I do agree, that for felony, treafon, or furety
of the peace, the perfons of peers may be committed;
and that which is called furety of the peace in our
books, Mr. Solicitor knows very well, in fome of the
rolls of parliament, is called breach of the peace, but
it is all one; and the meaning in fhort is, that it is
fuch a breach of the peace as for which a man by law
may be obliged to find fureties for the peace. If it
fhould mean a breach of the peace by implication, as
all trefpaffes and mifdemeanors are faid to be contra
pacem in the indictment or information, then it were a
fimple thing to enumerate the cafes wherein privilege
did not lie; for there could be no information what-
foever, but muſt be contra pacem, and fo there could
be no fuch thing as privilege at all: and befides, we
ſay, the very courſe of this court is contrary to what
they would have; for in the cafe of a peer for a mif-
demeanor, you go firſt by ſummons, and then you
do not take out a capias as against a common perfon,
but the next procefs is a diftringas, and fo ad infini-
tum; and I do appeal to them on the other ſide, and
challenge them to fhew any one precedent, when a
peer was brought thus into court, to be charged with
an information, without it were in the caſe of an ap-
parent breach of the peace, for he muſt be charged
in cuftody, and there must be a committitur to the
marſhal, to intitle the court to proceed. Your lord-
ſhips
灣
​[113]
ſhips will find very few precedents of cafes of this na-
ture about common perfons, for till within theſe
fourteen or fifteen years there was no fuch thing ever
done againſt a common perfon; but this was the rule ;
firſt there went out a fubpoena, and then an attachment,
and when the party was taken upon the attachment,
he is taken to come in upon procefs, and then the
court would charge him preſently, but if he did appear
upon the fummons, they would not charge him, but
he had time to take a copy of the information, and
an imparlance of courſe, till the next term, before he
could be compelled to plead. But in the cafe of a
peer, there never was any fuch precedent, as the a
taching his perfon, but only a fummons and diftrefs;
and I would be glad the king's counfel would fhew
that ever there was any fuch procefs taken out againſt
the perſon of a peer, for a mere miſdemeanor. My
lord, it is plain what breach of the peace means in
every information, and I only fpeak this to acquaint
the court how the conftant proceedings in all theſe
caſes have been. Thefe informations were anciently
more frequent in the ftar-chamber; and what was the
proceſs there? not the common procefs of a fubpana,
that was not the courſe there; but the proceſs was a
letter from the chancellor, that if the party upon that
letter did not appear, in a common cafe, there went
out an attachment; but in a peer's cafe, never; and
ſo it appears by Compton's juriſdiction of courts. tit.
ftar-chamber 33. This appears likewife by the pro-
ceedings in chancery againſt the peers, till the queen's
time they did not ſo much as take out an attachment
after default upon a fubpena, but they would then in
the queen's time be fo bold as to take out an attach-
ment againſt a lord for not appearing; but that
courſe was condemned as illegal; fo we find in my
Lord Dyer.
In
[114]
[ 114
pœna
In Sir Simonds D'Ewes's journal we find, that a b
is not to be ferved on a member, pages 347, 348,
553, 554, 637, that punishment was inflicted on a
perfon for ferving a fubpana, page 373, and that two
members were fent to the lord keeper to have a fub-
pæna revoked, 554. Edition of 1693. London, folio.
«<
66
No. 6.
Page 9.
Although what he (Michael Curry) faid
"there (at the bar of the houſe of commons) is a
good deal foftened, from what he ſwore at the Man-
fion-houſe, on the third of Auguft preceding, be-
"fore he had been foftened himſelf."
The affidavit of Michael Curry.
Michael Curry, of St. Peter's Mancroft, in the city
of Norwich, printer, maketh oath and faith, that in
the month of May one thouſand ſeven hundred and
fixty-three, he was hired by John Wilkes, Efq; of
Great George-ftreet, Weftminſter, at the rate of
twenty-five fhillings per week; that he lived in the
houſe of the faid Mr. Wilkes, was boarded and regu-
larly lodged there; that he was employed by the faid
Mr. Wilkes in feveral things about his private prefs;
that the faid Mr. Wilkes employed this deponent to
compoſe and print part of a poem, entitled, An Effay
on Woman; that the ſaid Mr. Wilkes gave this depo-
nent the ſtricteft charge to keep it fecret, and to ſuffer
no perfon whatever to fee the faid poem; that the ſaid
Mr. Wilkes ordered this deponent to work off only
twelve copies, which were all to be delivered, and were
actually given to the faid Mr. Wilkes himſelf, but
that without the knowledge of the faid Mr. Wilkes
this deponent worked off another copy for himſelf;
that from the careleffneſs of this deponent, four pages
only of the faid poem came into the hands of one
Jennings
[ 115 ]
{
Jennings, who likewife worked at the faid Mr.
Wilkes's; that by the means of this Jennings it was
fhewn to Mr. Farmer, Mr. Faden, and the Rev. Mr.
Kidgell; that the firſt application made to this dépo-
nent was by Farmer, who came, as he pretended, on
his own curiofity, to fee the rest of the poem, called,
An Effay on Woman, having feen fome part of it in
the hands of Jennings, which Jennings, he faid, told *
him he had from the houſe of the ſaid Mr. Wilkes;
that this deponent would not then fhew Farmer any
thing; that a few nights after Farmer called again on
this deponent; that they retired to Saint John's-gate
coffee-houſe; that Farmer repeated he had fome parts"
in black; that this deponent then faid to Farmer, that
no poetry had been done in black at the faid Mr.
Wilkes's, and therefore Jennings must have come by
thoſe verſes at fome other houſe, the parts of the
Effay on Woman being in red, which this deponent
faid to evade, although the proofs were in black; that
Farmer told this deponent he wanted it to oblige a
Roman Catholic gentleman, and that he would give
two guineas or any thing to get it; that he actually
laid down two guineas, which this deponent refuſed,
and told Farmer that he was not upon an honeſt de-
fign; that he could not conceive for what reafon a
Roman Catholic gentleman particularly ſhould offer
two guineas, or any fum, for what Farmer muſt know
was not from the quantity worth fix-pence; that this
deponent then paid for the pint of beer before him,
telling Farmer that if he would call the Sunday morn-
ing following, this deponent would ſpeak to the pur-
pofe, and then quitted the houſe; that this deponent
then diſcovered the affair to a friend, and when Far-
mer came to this deponent on the Sunday, this depo-
nent told him that he had deftroyed the copy, and
that he hoped that would end any further vifit on that
head; that the next day this deponent waited on Mr.
VOL. III.
Churchill: 93
H
[116]
Churchill; that this deponent aſked him if any harm
could come to Mr. Wilkes, or this deponent, for the
Effay on Woman; that Mr. Churchill faid there could
not, but for any thing the people in power could do,
they might be damn'd; that however he would write
to Mr. Wilkes, who was then in France; that the next
application was by Haffell, the overfeer of Mr. Faden,
who defired this deponent would go to the Globe
Tavern, as Mr. Faden wanted to fpeak to this depo-
nent on fome buſineſs; that this deponent accordingly
went; that when Faden and this deponent were alone,
Faden informed him, that Farmer had given him a
few ´pages of an Eſſay on Woman, which the faid Fa-
den had fhewn to a clergyman, and that clergyman to
a nobleman, and that if this deponent would oblige
him with a copy of the whole for that nobleman, he
would be this deponent's friend, and was pofitive, that
the perfon, as he was in power, would make an ample
proviſion for him this deponent; that this deponent
pretended ignorance of the whole at this meeting; that
another meeting was foon after had with the faid Faden
at the faid Globe Tavern; that the faid Faden pro-
mifed this deponent he ſhould be taken care of, and if
he would give the faid Faden a copy of the Effay on
Woman, this deponent might have any fum he named,
or any place he fhould name, which it was in their
power to get; that feveral other meetings were had
between the faid Faden and this deponent; that the
fame offers were repeated, and ten, twenty, a hundred
guineas, or any fum, would be given as a fecurity that
the copy fhould be returned; that Mr. Wilkes was all
this time in France; that there was a strong report
that Mr. Wilkes intended to profecute this deponent
for felony, in having ftolen a copy of the Effay on
Woman; that this deponent applied to fee Mr. Wilkes
on his return from France, and was refuſed by his
fervant; that ſoon after the applications to this depo-
nent
[117]
P
nent were renewed by the faid Faden and the faid
Haffell; that he was defired to name any fum; that
he might depend on being ſupported from any injury
he might apprehend, and firmly rely on being pro-
tected by thoſe in power; that otherwiſe he might be
proſecuted for having printed the copy; that after-
wards the reports of this deponent's being to be profe-
cuted by Mr. Wilkes for felony gaining ground, this
deponent in a paffion went to the faid Globe Tavern,
fent for the faid Faden, and gave him the copy, fay-
ing, he hoped he ſhould be taken care of, as he found
he was not ſafe either in keeping or deſtroying the
copy'; that the faid Faden then gave him five guineas
as a fecurity to return him the copy, and promiſed
him protection; that this deponent went with the ſaid
Faden on the fame evening to the houfe of Philip Car-
teret Webb, Eſq; folicitor of the treaſury, in Great
Queen-ftreet, where was the Rev. Mr. Kidgell; that
the faid Webb bid this deponent be eafy, for that he
fhould be provided for; that this deponent afterwards
for ſeveral weeks lodged and boarded in the faid
Webb's houfe; that this deponent was often told by
the faid Webb that government would take care of
him, if he would give evidence on the trials againſt
Mr. Wilkes; that he muſt remain ftaunch, and that
directions, as to what this deponent ſhould ſay on the
trials were given him by the faid Webb; that a few
days before the meeting of the parliament, the faid
Webb bid the faid Faden take this deponent out of
town; that accordingly the faid Faden and this depo-
nent went first to Hounflow, then to Hampton-Court,
and afterwards to Knightsbridge, till the morning the
houſe fat, when they went to the Horn Tavern in
Weſtminſter, where were the faid Webb and the faid
Kidgell, and from thence to give evidence before the
houfe of lords; that the faid Webb a few days after-
wards carried this deponent to the Earl of Sandwich,
H 2
who
[ 118 ]
1
who was then fecretary of state; that his lordſhip faið
to this deponent, You have faved the nation, and you may
depend on any thing that is in my power; that this de-
ponent faid he was without money, to which his lord-
ſhip replied, he must not hear that; that the ſaid
Webb added you had no occafion to mention that;
that at the bottom of his lordship's ftairs, the faid
Webb ordered this deponent to go to Mr. Carrington,
one of the king's meffengers; that this deponent ac-
cordingly went to the faid Carrington's, who gave him
a guinea and a half, for which this deponent gave a
receipt in theſe words, for fubfiftance, for which I ſhall
be accountable, or to that effect; that the fame payment
of a guinea and a half was continued for about twenty-
five weeks by the faid Carrington; that the faid Car-
rington faid the reaſon why he took receipts was, that
he was anſwerable to the government for that money ;
that this deponent was affured by the faid Webb, from
time to time, that he fhould be amply provided for,
that this deponent was afterwards employed by the
faid Webb to compromiſe the verdicts with the other
printers, which this deponent did for the other printers
at the fum of one hundred and twenty pounds each;
that this deponent had received nothing from the ſaid
Carrington for fome time before the verdicts were com-
promiſed; that he received for his own fhare two
hundred thirty-three pounds fix fhillings and eight-
pence, which the faid Webb declared was for the
trouble and fatisfaction for what had been done; that
then this deponent finding no more money coming
from the faid Carrington, and his life being made very
uneafy at London, retired into the north.
Sworn at the manſion-houſe, in
London, the 3d of Auguſt,
1768, before
MICHAEL CURRY.
THOMAS HARLEY, Mayor.
No. 7.
[ 119 ]
No. 7.
Page 48.-" During all theſe proceedings you con-
"tinued at the head of the treaſury, Webb was your
"folicitor."
Extract from the North Briton of Aug. 26, 1769.
Mark them, and let their names recorded ſtand
On Shame's black roll, and ſtink thro' all the land.
CHURCHILL.
In the year 1763, Philip Carteret Webb, Efq; in
the height of minifterial favour, public odium, and
private infamy, was employed by a defpotic adminiſ
tration as folicitor to the treaſury. He had full powers,
and very ample grants, to carry on profecutions againſt
the friends of liberty, to procure evidence, to corrupt
witneſſes, and in every poffible way to diftrefs and
harrafs all, who dared to oppofe the three vice-roys of
the Thane. It muſt be acknowledged that he was no
lefs ſucceſsful than indefatigable in all the various arts
of chicane, corruption, and treachery. He firſt ade
viſed the illegal mode of proceeding againſt the North
Briton, the iffuing of a general warrant, and the
ſeizure of papers, or a warrant againſt the perſonal
liberty of every man in the island, and all his moſt
important, fecret, and valuable poffeffions, which by
a fecond violation of our laws, were at the mercy of
the lowest tools of adminiſtration, the king's meffen-
gers, to whom without the fanction of an oath, the
judicial as well as the executive power was delegated.
A general warrant is indeed in every view a monfter
of abfurdity and cruelty. It reminds me of the im-
pious with of Caligula, that the Roman people had
but one neck, that he might have a ſtroke at the
whole body together. The folicitor always found in
the Earls of Egremont and Halifax, two fecretaries
eager to fignalize their obedience to the orders of their
H 3
common
7
[ 120 ]
common maſter, the arbitrary Scot, which were fre-
quently fent to them by his treaſury agent. At his
firſt requeſt the general warrant iffued. Mr. Wilkes,
and many other perfons, were foon apprehended, but
he alone immediately undertook, at an amazing ex-
pence, to bring the whole of thofe illegal proceedings
before a ſovereign court of juſtice, and to reſcue the
nation from the iron rod of minifterial oppreffion, un-
der which we had fo long fuffered. A number of
mean and profligate knaves have been taken into the
pay of government to juftify, in various ways, theſe
atrocious proceedings, among whom were diſtinguiſh-
ed as remarkably bufy and bafe, the impudent,
bullying, lying Norton *, and the fawning, cringing,
quibbling Dyſon †, the colour and conduct of whoſe
life, in Lord Mansfield's words, mark the Molatto,
Alave, as the manner and tenor of his actions have
chriſtened him the Mungo of the miniftry. But Mr.
Webb's fingle defence of the general warrant and the
feizure of papers was that the practice had been fre-
quent, and that there were many fuch precedents re-
maining in the original office-books of the fecretaries
of ſtate, and among the records of the court of king's-
bench. He might as well have juſtified the robberies
on Hounslow-heath by the books of Sir John Field-
ing, or the records of the Old-Bailey, which certainly
prove the exiſtence of the practice time immemorial.
The learned labours of Mr. Webb however on this
occaſion ſhall not be loft, eſpecially as he had acceſs
to the originals, and is ſuppoſed to have copied them
with unuſual faithfulneſs. He collected all the pre-
* Sir Fletcher Norton, Knight, late attorney-general, now
chief justice in Eyre.
Jeremiah Dyfon, Efq; commonly called Mungo, was one
of the ſecretaries to the treaſury under Lord Bute, and is now
one of the lords of the treaſury under his deputy, the Duke
of Grafton.
cedents,
▸
+
1
[121]
1
*
←
cedents, and printed them in a small quarto. The
crew of Bute had it fent to them, ſuperſcribed moſt
fecret, Mr. Webb afterwards earneftly defired that
the volume might be delivered up to him, and the
greater part of the copies was in confequence returned.
This book I fend to you, Mr. North Briton, that you
may re-print it for the public view. The fubject is
highly interefting to every Englishman, and the pre-
cedents are no lefs curious than alarming. I was not
however at all furpriſed to find the head of the Bloomf
bury gang, and the public defaulter of unaccounted
millions, among the violators of public freedom, but
the name of Pitt to three warrants of fo dangerous a
tendency I must own aftoniſhed me, although I fhould
not have wondered at that of Chatham.
<<
No. 8.
Page 49,-" Notices declaring that the trials were
put off, figned Summoning Officer, were ſent to feve-
"ral of the legal fummoned jury only the day before
"the trials,"
Extract from the Gazetteer of February 27, 1764.
The following is a true copy of a letter fent to fe-
veral gentlemen fummoned to attend as jurymen on
the late trial of John Wilkes, Efq; the evening before,
and the fame morning, the trial came on, in Weſt-
minſter-hall, by means whereof they were deceived and
prevented from making their appearance there.
Middleſex. The information of the king againſt
Wilkes, Efq; is adjourned to Thurſday the 23d
day of February inſtant at nine o'clock in the
forenoon, in Weſtminſter-hall; of which, Sir,
you have this notice from
Your humble Servant,
Summoning Officer,
February 20, 1764.
No. 9.
H 4
I 122 ]
No. 9:
Page 50.-" Denying Mr. Wilkes the juſtice of
going into this part of his petition."
Extract from the North Briton of June 24, 1769.
It ſhould be remarked, that the prefent examination
comprehends only two articles of the petition; I mean
the alteration of the records, and the public money
iffued to Michael Curry, as evidence for the crown
againſt Mr. Wilkes. To the first point Mr. Barlow
and Mr. Wallace are very full and exprefs; but it is
rather wonderful that the artful Mr. Wallace fhould
be ſo much off his guard as to acknowledge to the
houſe, that at least he concurred with other gentle-
men concerned for the crown in the advice to alter the
records, when Mr. Wilkes had been his client in the
beginning of thefe very caufes, and of confequence
had imparted to him, as counfel, in whom he con-
fided, the fecrets of the intended proceedings both in
the legal defence and attack. Mr. Wallace indeed
denied this with unufual warmth on the Tueſday in
the house; but Mr. Wilkes infifting on the fact, and
being ready to prove it, the lawyer was pleaſed to
make a full confeffion of this meanneſs and treachery
in the fame place the very next morning, with the
modefty which has accompanied him through life.
In the ſecond cafe likewife Michael Curry, in his
evidence on the laft of January 1769, at the bar of
the houſe of commons, without oath, varies almoſt as
much from his depofition on oath before the lord mayor
on the 3d of Auguſt 1768, as you find Mr. Wallace
does from himſelf on the laft of January and the firſt
of February.
I defire further to premiſe, that there were ſeveral
other articles in Mr. Wilkes's petition, befides the
com-
L
R
[ 123 ]
complaint of the general warrant and the feizure of
papers, which have not hitherto been enquired into,
neither by parliament, nor by any court of law, and
yet are of the utmoſt importance. Of this nature are
the evafion of the habeas corpus act, the clofe impri-
fonment for a bailable offence; the fubpoena on an in-
formation for only a miſdemeanor; the counter-notices,
figned Summoning officer, fent to ſeveral of the jury
only the day before the trials, and the producing pa-
pers feized under the general warrant as evidence on
the trials; all which are entire new matter.
Mr. Wilkes had the authority of the houſe to fum-
mon a variety of witneffes fo early as the 24th of No-
vember, who attended, at an enormous expence, till
January 27, in order to prove every allegation in his
petition; but on the morning it was to be heard, the
majority determined that evidence fhould be gone into
only on two points. He was likewiſe permitted to call
for the office-copy of the general warrant, &c. &c. to
prove that part of the petition, which was not garbled
till the very day of it's being heard. The only paper
refuſed was, all fuch accounts as have been paffed, de-
clared, or received, from Philip Carteret Webb, Eſq;
late folicitor of the treafury, fince Midfummer 1762,
from the auditors of the impreft, or their deputies.
No. 10.
Page 51.-" When Mr. Fitzherbert's vifit to the
"king's bench proved ineffectual."
Extract from the St. James's Chronicle of Feb. 25,
1769.
It is the obfervation of Plutarch, when he is fpeak-
ing of the cruelties exercifed at Rome after the return
of Marius," that it appeared on this occafion, that
the-facred ties of friendſhip and hofpitality cannot
❝ ftand
[ 124 ]
A
"ftand the trial in the days of adverfity.". No man
has experienced this more than Mr. Wilkes. The last
week produced another remarkable inftance of it from
a gentleman*, formerly one of his most intimate
friends, who has only once in the last ten months ven-
tured within the king's-bench walls, not to chear the
priſoner and captive, not to chaſe the gloom of ſuch
a habitation, but to fetch and carry political meffages.
This perfon thought himſelf at liberty to relate + pub-
licly what he pretended had paffed in a private con-
verfation with Mr. Wilkes at the time of that vifit. I
was not preſent, but I am told the converfation was
falfely and malevolently ſtated. I will leave it to
others to fend you the ſubſtance of what was faid in
public. I fhall give you faithfully all the particulars,
which occurred at the conference between the two
gentlemen in private, and I appeal to another gentle-
man ‡, who accompanied the placeman, for the truth
of my relation.
The placeman had ſeveral times called on an honeſt
bookfeller in Piccadilly, a friend of Mr. Wilkes, to
defire him to come to the king's-bench, to entreat Mr.
Wilkes not to preſent a petition to the houſe of com-
mons, for the confequence must be the lofs of his feat
in parliament from the refentment of the miniftry.
The honeſt bookfeller refuſed to come on that mef-
fage. The placeman had never once been to ſee his
old friend in prifon, fince his commitment in April,
till Sunday evening, the 13th of November, the day
before the petition was prefented. The attempt by the
bookſeller failing, he ventured himſelf in the duſk to
obey the mandates of his mafter. He introduced him-
* William Fitzherbert, Efq; member for Derby, and one of
the lords of trade.
In the houſe of commons.
David Garrick, Efq.
Mr. Almon.
felf
[ 125 ]
felf with the moſt fulfome and tedious profeffions,
the moſt unneceffary and ridiculous among real friends.
He then declared what pleaſure he ſhould have found
in coming frequently to the king's-bench, that he
could not pafs his time fo well as with Mr. Wilkes,
and that he would have been often there, could he
have been really uſeful to his friend. He talked
warmly againſt the intended meaſure of preſenting a
petition to the houfe of commons complaining of
grievances, and declared that he knew, if Mr. Wilkes
would be quiet, he might keep his feat; if he pre-
fented the petition, he would certainly loſe it. He
earneftly entreated Mr. Wilkes to give up the petition,
and to keep his feat; the honour and advantage of
which he painted in ftrong colours. Mr. Wilkes de-
fired the authority for fuch direct affertions. The
placeman declared, that he ſpoke in the name of the
miniſter, and that he would promife, if the petition
was not preſented, no attempt ſhould be made in par-
liament againſt Mr. Wilkes. He was then aſked by
Mr. Wilkes, if he would promiſe for the great man
as firſt minifter, or as Duke of Grafton, for the Duke
of Portland* had found how little the promiſes of the
Duke of Grafton were regarded by the firft miniſter.
No answer was made to this. Mr. Wilkes then de-
clared, that he thought it his duty to every man in
this country to prefent a petition of fuch general con-
cern, complaining of fo many unparalleled grievances;
that he would not fell the rights of the people and his
own, even for a feat for the firft county in England;
that he held that feat at the free will of his conftitu-
ents, and refuſed to hold it at the arbitrary will of
any miniſter; that he was highly fenfible of the pri-
vate honour to himſelf, but he felt ftill more for his
country; that on no terms would he have given up
* In the bufinefs of the foreft of Inglewood in the county of
Cumberland.
1
the
[126]
1
the petition, had they been offered before his laſt ad-
drefs to the county, but that now no propofal ought
to have been made to him, which could even ſuppoſe
that breach of faith. In the courfe of a long conver-
fation, Mr. Wilkes obferved, that he did not look on
a feat in parliament as the end, but as the means;
that he wished to reprefent the county of Middleſex,
in order to be eminently uſeful at a ſober time of life,
but if he could be more uſeful by giving up his feat,
he would give it up, and he would always hold his
head by the fame tenure. He repeated feveral times,
that he was embarked to defend the rights of the peo-
ple, which he would do at any riſk, always without a
wish to encroach on the fair claims of the crown; that
he had been, and ſhould be, ever ready to make any
fubmiffion to the king, which was even hinted from
authority, although he was not confcious of an inten-
tion at any time to have offended his fovereign, but
that he never would make application for pardon to a
miniſter; that if mercy was extended to him, he hoped
he ſhould be permitted to throw himſelf at the king's
feet to acknowledge his majeſty's goodneſs; if it was
not, he had long borne the ſtorms of fate, and his
mind was made to adverſe fortune; and although he
felt his impriſonment and all his perfecutions as a man,
he would alſo bear them as a man, and would come
out of priſon a better man than he went in.
I have now, Sir, given you the whole of the con
verſation between the placeman and Mr. Wilkes, re-
lative to the political meffage. Very little paffed, which
was not particularly attended to by the gentleman,
who accompanied the placeman. I believe he will
not fcruple to ſay, that Mr. Wilkes's declarations were
ſpirited and manly, and that they betrayed neither
peeviſhneſs nor defpair. I have ftated what paffed
fairly and fully. Not a word was mentioned of any
meaſures of violence or faction. I fhall only add
that
[127]
}
that Mr. Wilkes faid, after he heard of the late affair
in the great affembly, "He has ceafed to be my
"friend, but I continue his agnofco veteris veftigia
"flamme.
"2
Feb. 22, 1769.
Extract from the St. James's Chronicle of March 14,
1769.
66
I defire you to do Mr. Wilkes juftice againſt the
virulent abuſe of a letter-writer in the Public Adver-
tifer of laſt Thurſday, who figns, Pro Lege & Rege.
He fays, "Intoxicated with the favour of the Middle-
"fex electors, he (Mr. Wilkes) affumes an infolence
equal at leaſt to that of the Duke of Guiſe, (when
"with forty thouſand men at his heels he accofted
"his fovereign) and declares that he is without a wish
"to encroach on the fair claims of the crown. I muft
"read over the words again. They are as I have
"written them; and that he was ready to make any
"fubmiffion to the
which was even hinted from
"authority; that is, from the --, for he never
"would make application for a pardon to a minifter.
"Is it poffible that any gentleman, that any man, who
"has the leaſt regard for the dignity of his
“the intereſt and honour of his country, can with
patience hear Mr. W. put himſelf upon a footing
" with the of Great Britain, and talk of treat-
<<
for
"ing with his in a candid manner, for he has
"no wish to encroach on the fair claims of the crown?
"Who is Mr. W-? &c. &c." I answer, he is the
perſon whom the freeholders of Middleſex freely and
unanimously choſe their reprefentative in oppofition to
every kind of minifterial influence, without a fingle
bribe, fupported by no proud connections, and at-
tacked by all the low tools of power, and the whole
adminiſtration.
The
( 128 )
The letter-writer ought to have quoted the first part
of the ſentence. Mr. W. in the account publiſhed of
the converfation between the place-man and him, fays,
"he was embarked to defend the rights of the people,
"which he would do at any riſk, always without a wiſh
"to encroach on the fair claims of the crown." He has
juft before mentioned his feat in parliament. Surely,
Sir, nothing could be more proper than fuch a decla-
ration from the member for Middlefex to a profeffed
courtier, and I think it was then almoft neceffary, af-
ter the repeated falfhoods thrown out of the republican
fchemes of Mr. W. and his friends, and their defigns
againſt the king and the monarchy. Such a declara-
tion made to fuch a man ſeems to me well-timed, as it
was guarding againſt the fooliſh as well as malevolent
lies of many hirelings of the miniftry. Is the letter-
writer fo ignorant of our hiſtory, as not to know that
members, in fome former reigns, have more than form-
ed wishes, have proceeded to digeft very deep plans,
and to perpetrate very violent actions, defignedly to en-
croach on the fair claims of the crown? and is Mr. W.
to be abuſed for declaring in a private room to a
place-man, that he is even without fuch a wifh?
The letter-writer fays, "Is it poffible that any
"gentleman, that any man, who has the leaft regard
"for the dignity of his for the intereft and
"honour of his country, can with patience hear Mr.
"W. put himſelf upon a footing with the of
"Great Britain ?" I defire to know if Mr. W. is put-
ting himſelf upon a footing with the of Great
Britain, when he exprefsly declares in the fame fen-
tence, " he had been, and fhould be, ever ready to
"make any fubmiffion to the king, which was even hint-
"ed from authority.' Is this too an inſolence equal
to that of the Duke of Guiſe?
""
Why
I 129 ]
Why will the letter-writer at this time carry us
back to a part of foreign and French hiftory, big with
horror and cruelty, when the fecond century after
thoſe tragical events is now nearly elapfed ?-But I
will follow him. The Duke of Guife was affaffinated
by the expreſs command, or, if you pleaſe, by au-
thority of the moft Chriftian king, Henry III. in the
month of December. The first of Auguſt following
that king himſelf was affaffinated. He fell a victim
to the revenge of the Ligue, which retaliated on the
king's own perfon the deliberate murder committed
by his order on a fubject. All Paris, and indeed al-
moſt all France in tears on that occafion, fhewed how
highly the Duke of Guife was honoured and beloved
by the people. The monarch died unregretted and
unwept.
No pitying heart, no eye afford
A tear to grace his obfequies.
GRAY.
It is remarkable however that the unthinking part of
mankind generally pay a flaviſh deference to the me-
mory of the deceaſed affaffin, if he was a crowned
head, whereas the vulgar and ignoble villain has al-
ways the Sambenito coat put on him both by the hifto-
rian and the priest, and is configned by them to the
fiercest flames. We read endleſs execrations againſt
Clement and Ravaillac; but the affaffin of the Duke
of Guife is treated as a good Chriftian king. Another
of the facred crowned heads, one of the lord's anoint-
ed, a prince it is pretended likewife fhould be named
with veneration, is Charles IX. although, according
to the French hiftorian Mezeray, at the maffacre of St.
Bartholomew, with his own hand he canardoit fes fujets
avec fa grande arquebuſe à giboyer, killed his (proteſtant)
fubjects like wild ducks with his great fowling-piece, as they
fled from the blood-thirfty catholic ruffians, employ-
ed by that king and his mother, Catherine of Medicis,
10
[130]
to affaffinate the people, whom he had fworn folemnly
to defend and protect.
No. II.
Page 55.-" Till Lord Rockingham's time we do
"not find the leaft mark of the difapprobation of
"general warrants, or the feizure of papers, in the
"houfe of commons.
The following refolutions of the houſe of com-
mons paffed during the adminiſtration of the Marquis
of Rockingham.
Martis, 22º die Aprilis 1766.
Refolved,
That a general warrant for apprehending the author,
printer, or publifher of a libel is illegal; and if exe-
cuted on the perſon of a member of this houſe, is alſo
a breach of the privilege of this houſe.
Refolved,
That the feizing or taking away the papers of the
author, printer, or publiſher of a libel, or the ſup-
pofed author, printer, or publiſher of a libel, is ille-
gal; and that fuch feizing or taking away the papers
of a member of this houſe, is a breach of the privi
lège of this houſe.
R
Veneris, 25° die Aprilis 1766.
Refolved,
That a general warrant for feizing and apprehending
any perſon or perfons being illegal, except in cafes
provided for by act of parliament, is, if executed
upon a member of this houſe, a breach of the privi-
lege of this houſe.
No. 12.
[131]
Page 24.
No. 12.
"While you were firft commiffioner,
દ you obtained an order, which is entered in the
*books of the treaſury, that all expences incurred,
tc
or to be incurred, on account of the North Briton,
"No. 45, or the Effay on Woman, fhould be paid
"by the treaſury."
Extract from the Treafury Minute-Book.
Whitehall Treaſury Chamber, 31ft May 1765.
Lord North
Preſent Mr. Grenville [firſt commiffioner of the trea-
fury, and chancellor of the
exchequer.]
Mr. Hunter
Mr. Harris
Mr. Chancellor of the exchequer fignifies to my lords
his majeſty's pleaſure, that all expences incurred, or
to be incurred, in confequence of actions brought
againſt the Earl of Halifax, one of his majeſty's prin-
cipal fecretaries of ftate, the under fecretaries and
meffengers, and the folicitor of this office [Mr. Webb]
for proceedings had by them in executing the buſineſs
of their reſpective offices against the publiſhers of ſe-
veral ſcandalous and feditious libels, fhould be de-
frayed by the crown; and that a fufficient fum of
money ſhould be, from time to time, iffued to the
folicitor of the treaſury, for that purpoſe.
Read a paper received from Mr. Webb, ftating
what the expences are likely to be, and that a further
fum of 3oool. may probably be wanted for difcharg-
ing the fame.
Iffue to Mr. Webb, from time to time, as the faid
fervices may require, a fum not exceeding 3000l. di-
recting him to apply the fame according to his ma-
VOL. III.
jeſty's
I
[132]
jefty's commands, to diſcharge the feveral expences
abovementioned.
ܐ،
Page 25.
No. 13.
"The General Warrant, under which
"Dr. Shebbeare was apprehended."
The General Warrant.
Theſe are, in his majefty's name, to authorize and
require you, taking a conftable to your affiſtance, to
make ſtrict and diligent fearch for the author, printer,
and publiſher, of a wicked, audacious, and treaſon-
able libel, entitled, "A fixth Letter to the People of
England, on the Progrefs of National Ruin, in
"which is fhewn, that the prefent Grandeur of
"France, and Calamities of this Nation, are owing
"to the influence of Hanover on the Councils of
CC
.
England; London, printed for J. Morgan in Pater-
"Nofter-Row, 1757 ;" and them, or any of them,
having found, to feize and apprehend, and bring, to-
gether with his or their books and papers, in fafe
cuftody, before me, to be examined concerning the
premiſes, and further dealt with according to law. In
the due execution, &c. Given at Whitehall, January
12, 1758, in the thirty-first year of his majeſty's
reign.
HOLDERNESSE.
No. 14.
·
Page 26.
"A cloſe prifoner, without pen, ink, or
ar paper, or friend, or relation, permitted to come
« near him.”
Orders iffued by the lieutenant governor of the
"Tower, reſpecting the detention of John Wilkes,
« Efq.
1
"That
*
[133]
"That the warders appointed to keep a cloſe pri
"foner, ſhall not preſume to leave him for a moment
alone, either night or day, or to change their duty
"with other warders, but by particular leave, or or-
"der from the conftable, lieutenant, deputy lieute-
nant, or in their abfence the major of the tower.
"They are to permit no perſon to have admittance
into the room he is confined in, or to ſpeak to him
but by a particular order brought them by the
major or gentleman goaler."
Major Rainsford declared that he had other orders
befides the warrant.
During the clofe confinement of Mr. Wilkes, the
warders two or three times indeed at his earneſt re-
queſt brought him pen, ink, and paper, to write to
his daughter, to his fervants, &c. but they ſtood by
his chair the whole time, took what he wrote directly
to the lieutenant governor, and then carried away the
pen, ink, and paper.
The late Duke of Bolton, Earl Temple, a brother
of Mr. Wilkes, his counfel, folicitor, &c. &c. were
refuſed admittance at the Tower.
Page 27.
No. 15.
"The warrant againſt him (Mr. Arthur
"Beardmore) for feveral numbers of the Monitor was
"made ſpecial."
The Special Warrant.
GEORGE MONTAGU DUNK, Earl of
HALIFAX, Viſcount SUNBURY, and Baron HA-
LIFAX, one of the Lords of his Majeſty's moſt
L. S. Honourable Privy Council, Lieutenant Gene-
ral of his Majeſty's Forces, Lord Lieutenant
General, and General Governor of the King-
I 2
dom
!
"
[ 134 ]
1
dom of Ireland, and principal Secretary of
State, &c.
Theſe are in his majefty's name to authorize and re-
quire you, taking a conftable to your affiftance, to
make ſtrict and diligent fearch for Arthur Beardmore,
the author or one concerned in the writing of fſeveral
weekly very feditious papers, entitled the MONItor,
or BRITISH FREEHOLDER, No. 357, 358, 360, 373,
376, 378, 379, and 380. London, printed for J.
Wilſon, and J. Fell, in Pater-nofter-row, which con-
tain grofs and fcandalous reflections and invectives,
upon his majeſty's government, and upon both houfes
of parliament; and him having found, you àre to
feize and apprehend, and to bring together with his
books and papers, in fafe cuftody, before me, to be
examined concerning the premiſes, and further dealt
with according to law in the due execution whereof,
all mayors, ſheriffs, juftices of the peace, conftables
and all other, his majeſty's officers civil and military,
and loving fubjects whom it may concern, are to be
aiding and affifting to you, as there fhall be occafion.
And for fo doing this fhall be your warrant. Given
at St. James's the fixth day of November 1762, in the
third year of his majeſty's reign.
:
To Nathan Carrington, James
DUNK HALIFAX.
Watfon, Thomas Adran, and
Robert Blackmore, four of
his majeſty's meffengers in
ordinary.
No. 16.
1
[ 135 ]
Page 43.
No. 16.
"Such tricks about records."
Extract from the North Briton of Aug 12, 1769.
I obſerve in the proceedings, "that on the 8th of
"July, 1763, the fecondary miflaying the alias dif-
"tringas, the filazer could not fign the pluries, but
"the fecondary found the alias on the 7th of No-
"vember." The name of this upright, confcientious
fecondary, is Henry Fothergill. I call upon him to
juſtify his conduct to the public. The defignedly
lofing of a particular writ by an officer of a court of
law, proves that the very fountains of juftice are
polluted. The ordinary courfe of legal proceedings,
was by this trick for fome months entirely ſtopped.
If this pretended accident had not happened, or this
management taken place, Lord Halifax might have
been brought into court, notwithſtanding all the con-
tumacious delays, which were made, and the outlawry
could have had no effect in that action.
\
To fave Lord Halifax was likewife one of the mo-
tives, which induced Lord Mansfield to venture on
the alteration of the records. "The original words
" of the records were too vague to have convicted
"Mr. Wilkes. It was neceffary to be more precife.
"If the alteration had not been made, the indict-
"ment muſt have been quafhed. And this would
"have caufed fuch a delay in the proceedings againſt
"Mr. Wilkes, that Lord Halifax would have been
"obliged to appear. to be convicted for the general
warrant, and to pay the confequent damages. To
46 prevent this was one great motive of Lord Manf
"field's alteration, and it had its effect. Lord
"Halifax eſcaped by that alteration, and by that
alone. This interruption and delay is doubly in-
(c
I 3
66
jurious
*
[ 136 ]
{
<<
jurious in a perfonal action, like this againſt Lord
"Halifax, becauſe the defendant may die, as Lord
Egremont did, and then the party injured can have
..
65
no redreſs." From the fame motive of delay, and
to fave Lord Halifax, if poffible, the reverfal of Mr.
Wilkes's outlawry was deferred to the laft moment.
The counfel for Mr. Wilkes were intreated by Lord
Mansfield to argue it again after the famous pleadings
of the 7th of May, although they had ſpread a ge-
neral conviction among mankind. This they abfo-
lutely refuſed in purſuance of his directions, and yet
the judgment of the court of king's bench on the out-
lawry was not given till the 9th of June, by which
Lord Halifax eſcaped the laft year. Another remark-
able circumftance refpecting Lord Mansfield I defire
to ftate, for I would give the world an accurate ac-
count of the moſt minute circumftances of this inte-
refting affair. In the Annual Regiſter for 1768, it is
faid, "In an addrefs to the freeholders of Middleſex,
. publiſhed ſince the reverfal of the outlawry, (dated
"June 18, 1768) Mr. Wilkes makes this remarkable
"declaration, In the whole progrefs of miniſterial
8: vengeance againſt me for ſeveral years, I have
"fhewn to the conviction of all mankind, that my
"enemies have trampled on the laws, and been
"actuated by the fpirit of tyranny and arbitrary
ايا
.
power. The general warrant, under which I was
"firſt apprehended, has been judged illegal. The
"feizure of my papers was condemned judicially,
"The outlawry, fo long the topic of virulent abuſe,
is at laft declared to have been contrary to law;
"and, on the ground first taken by my learned
"counfel, Mr. Serjeant Glynn, is formally reverſed.'
"This it is thought neceffary to infert, as it has been
t
faid in all the papers, that the error on which the
"outlawry was reverfed was difcovered by Mr.
Wilkes's enemies." Page 127. I believe that this
$
66
affertion,
[137]
affertion, which is not founded in truth, was in ferte
in all the papers by the order of Lord Mansfield.
From the addreſs it appears that Mr. Wilkes contra-
dicted it under his hand fo early as the 18th of June
1768. The diſcovery was made by Mr. Wilkes's
counſel. It is certain that at the reverfal of the out-
lawry on the 9th of June, his Lordſhip did not re-
verſe it on the large and liberal ideas of law and juf-
tice, which had been ably given by Mr. Serjeant
Glynn, but from the omiffion of the two famous
words, pro comitatu, which the ferjeant had likewife
ftated. Lord Mansfield however ventured to declare,
"that he firſt diſcovered this error, which had never
"been mentioned by Mr. Wilkes's counfel," although
the fact is, that it had been particularly infifted upon
by Mr. Serjeant Glynn. Almoft the whole bar, who
were preſent both on the 7th of May, when the
errors were argued, and on the 9th of June, when
the outlawry was reverfed, heard his lordship's decla-
ration with aſtoniſhment and horror, as a daring viola-
tion of truth in a folemn court of juftice from the
prefident of it. I appeal on this occafion to Mr. Ser-
jeant Glynn, to Mr. Davenport, to both their briefs,
not to the candour, but to the memory of Mr. Thur-
loe, and to the whole bar.
!
No. 17.
Page 73:
"Sextus
"the Roman bar."
Clodius, the Wedderburn of
The cafe of Sextus Clodius has been ftated from
Cicero. I proceed to the other inftance of a Scottiſh
gentleman of that unlearned profeffion, as Lord Bo-
lingbroke calls the law. During the late ridiculous
conteſt between the doctors of phyfic and the licen-
tiates, Mr. Alexander Wedderburn in his pleadings,
affirmed with his uſual modefty, that no woman could
I 4
be
[138]
be poffibly alluded to in a certain Latin parchment
produced on the occafion, for the word was bomo.
Till this bold declaration of that learned king's coun-
fel, homo was always underſtood to comprehend man,
woman, and child; and the wives, fifters. daughters
and children of Engliſhmen, were thought to be in-
cluded in their great charter, "Nullus liber homo ca-
"piatur, vel impriſonetur, &c." But this daring nor-
thern hero has croffed the Tweed to disfranchiſe half
the Engliſh nation, Heaven forbid that he ſhould
proceed to interpret in this manner the reft of our
Jaws! the whole practice of them is already too much
unfettled by the arbitrary difcretion of another of his
countrymen. It is to be hoped, for the honour of
this age, and the free conftitution of our country,
that we fhall not have him likewife to opprefs us
with four heavy quarto volumes of Commentaries on
the laws of England, which might only ferve to
confound all our clear ideas both of law and equity,
to fritter away the firſt great principles of liberty, to
demonftrate nothing but the infinite divifibility of law
as well as of matter, and to reduce the high fpirit of
magna charta itſelf to the flaviſh doctrines of Oxford
toryiſm or Scottiſh vaffalage.
No. 18,
Page 74. "Many atrocious illegal acts."
Extract from the Political Regifter for Auguſt 1768,
Twelve Queries.
1. Was the general warrant, under which Mr.
Wilkes was apprehended, legal?
2. Was the feizure of his papers legal?
3.
Was the making ufe of thofe papers in a crimi
nal profecution legal?
t
4. Was
[139]
4. Was the corrupting a fervant to betray and rob
his mafter, legal?
5. Was fhifting the cuftody of Mr. Wilkes, after
the habeas corpus was known to be granted, legal?
6. Was his commitment to the Tower, for a bailable
offence, and denying any perfon accefs, who was
ready to have bailed him, and the depriving him of
the uſe of pen, ink, and paper, to apply to counſel,
legal?
7. Was the alteration of the records in two crimi-
nal profecutions, only the day before the trials, with-
out the knowledge, and againft the confent of his fo-
licitor, legal?
8. Was the branding the North Briton, No. 45,
with the epithet treaſonable at firft in the general
warrant in order to inflame, when in all the ſubſe-
quent proceedings that pretence was given up, legal?
9. Was the refuſal to accept Mr. Wilkes's perſonal
furrender, in order to queſtion the legality of the out-
lawry, legal?
10. Was the refufal of bail, during the dependance
of the queſtion on the outlawry, legal?
11. Was the delay of juftice in the reverfal of the
outlawry, when it was reverfed on the arguments firſt
uſed, legal?
12. Was the outlawry legal?
Among the many cruel, mean and oppreffive mea-
fures of this adminiſtration againſt Mr. Wilkes, the
following ought to be noticed. When he was at din-
per with feveral friends at the King's Arms in Corn-
hill, on the 10th of April 1768, he was ferved in the
midſt of them, by an agent of the treaſury with an
exchequer writ or bill of diſcovery, upon information,
confift-
"
[ 140 ]
confifting of many fheets of paper, in order to find
and feize all his effects under the outlawry, as being
forfeited to the crown, although the writs of error
had been actually moved for at that very time. The
outlawry has fince been declared illegal from the be-
ginning. Query. If the treaſury had fucceeded in
their attempt of feizing the effects of Mr. Wilkes
under that illegal outlawry, would it not have been a
downright robbery?
No. 19.
Page 79. "The Letter to the King and the Petition."
The following is a genuine copy of Mr. Wilkes's Letter to
the King, which was delivered by his fervant at the
Queen's palace on the 4th of March, 1768.
SIRE,
1
I beg thus to throw myſelf at your Majeſty's feet,
and to fupplicate that mercy and clemency which
fhine with fuch luftre among your many princely
virtues.
Some former minifters, whom your Majefty, in con-
deſcenfion to the wiſhes of your people, thought pro-
per to remove, employed every wicked and deceitful
art to opprefs your fubject, and to revenge their own
perfonal cauſe on me, whom they imagined to be the
principal author of bringing to the public view their
ignorance, infufficiency, and treachery to your ma、
jefty and the nation.
I have been the innocent but unhappy victim of
their revenge. I was forced by their injuftice and
violence into an exile, which I have never ceaſed for
feveral years to confider as the moft cruel oppreffion;
becauſe I no longer could be under the benign pro-
tection of your Majeſty, in the land of liberty.
With
[141]
With a heart full of zeal for the fervice of your
Majefty, and my country, I implore, Sire, your cle-
mency. My only hopes of pardon are founded in
the great goodneſs and benevolence of your Majefty;
and every day of freedom you may be graciouſly
pleaſed to permit me the enjoyment of in my dear
native land, fhall give proofs of my zeal and attach-
ment to your ſervice.
I am, Sire,
Your Majefty's moſt obedient,
and dutiful fubject,
March 4, 1768.
JOHN WILKES.
The Petition.
Extract from the Middlefex Journal of Sept. 26, 1769.
A variety of petitions have of late been preſented
to the throne, from very refpectable bodies of men,
from the capital city of the Britiſh empire, the firſt
county in England, &c. I have been very curious
to enquire into their reception and fuccefs. I am
told that it is impoffible to imagine any thing more
cold, uncivil, or forbidding, than the reception they
have had from the fovereign, and that he has never
vouchfafed to ſay a fingle fyllable to the gentlemen,
who have attended on thefe occafions. I therefore
ſuppoſe the fuccefs of all the late petitions is not pre-
carious, but abfolutely to be defpaired of at leaſt for
fome time.
We have been long amufing ourſelves in England
with ftating the ſubjects right to petition, and it has
been inconteſtably demonftrated from the bill of
rights, and the very nature of our conſtitution. Alas!
fir, of what uſe is this right to us now? The fenfe
of the nation indeed by this method is at preſent well
known, but it happens to be diametrically oppofite to
the will of the real miniſter, and therefore it is dif-
regarded.
[ 142 }
]
regarded. In the arbitrary governments of France and
Spain petitions and remonftrances are likewife actually
received—and neglected as in England. Yet a few
obliging, but unmeaning, words are generally uttered
by the prince, accompanied with a polite manner
and a gracious fmile, to footh the diftrefs of the
humble fuppliants till they are got out of the fight of
their fovereign. If thofe two kings are not great
princes, they are at leaſt good actors of majefty. The
petitions and remonftrances are afterwards laid by as
the moſt uſeleſs lumber in the palace, tout comme
chez nous, in Harlequin's phrafe. One comfort only
remains to us as Engliſhmen. Our hiſtory tells us that
whatever minifter has dared to act against the fenfe of
the people has in the end fallen the unpitied victim
of his own infolence and rafhnefs.
Befides the petitions of large bodies of men, feve
ral private perſons have lately made application to the
throne in the fame manner. The only fucceſsful pe-
titioner I can recollect is Mac Quirk, the murderer.
His petition not only faved his life, but got him a
penfion, which he enjoys in his native county of Kil-
kenny, till his friends, the minifters, want him again
in the county of Middleſex. Now I have mentioned
Middlefex, I fhall juſt remark, that this is not the
only county in which the baneful influence of the
Thane has been feverely felt in elections. The papers
publiſhed by the exprefs orders of the late Mr. Legge
prove, that Target Martin was employed by Lord
Bute to impofe, in the moſt infolent manner, two
members on Hampshire. One of them was a Stuart.
Mr. Legge was commanded by Lord Bute's meffage
"to bid adieu to the county of Southampton at the
"general election, and affift, as far as lay in his
power, the Prince of Wales's nomination." Thefe
are the very words. I believe a more direct attempt
was never made to invade the right of free election,
"6
nor
[ 143 ]
nor a greater infult offered to a large and powerful
whig county, who very generally loved, honoured, and
confided in, Mr. Legge. This happened too before
the cruel talons of Bute were full-grown, when he
appeared rather timidis unguibus.
The cafe of Mac Quirk, now penfioner as well as
murderer, naturally reminds me of another petition,
and of the melancholy fituation of Mr. Allen's fa-
mily, fince the inhuman maffacre of our countrymen
on the bloody 10th of May 1768. The worthy father
of the unfortunate young man has lately preſented a
petition to the king, but he has had no anfwer nor re-
lief, and in all probability the foul murder of his only
fon will go unrevenged, till God fhall make inquifi-
tion for that innocent blood.
The laft petition I fhall mention is, that of Mr.
Wilkes, which I encloſe to you, as I have not yet
feen it in print. It has been, and will continue, no
lefs ineffectual than that of Mr. Allen. It only ſerved
to fhew, that the petitioner was ready to make any fit
and decent fubmiffion to the perſon of his fovereign,
although to no one of his miniſters. I fend it to you,
Sir, because it appears to me juft, manly, and ſpirited,
becoming a free-born Engliſhman to his prince, not
the language of a crouching, abject, fawning flave of
an abfolute monarch. I have met with fome few men
of fenſe and humanity, who think that Mr. Wilkes
deferved the firſt year's impriſonment and the firſt
fine for the North Briton, No. 45, but I have not
heard a fingle man of underſtanding, or honour, of
opinion, that he deſerved even the ſlighteſt cenfure for
having an idle poem carefully locked up in his cloſet,
which in fact has only been made known by the vil-
lains who ftole it, and by their abettors. I know
that in every court of Europe the whole of that pro-
Iceeding has been thought bafe and infamous, and the
moſt
મ
?
1
J
t 144 ]
moſt indelible diſgrace will for ever remain on all
concerned in it, as gentlemen and men of reputed
honour. Perhaps a more fit, or juſt, ſubject of the
interpofition of the crown by a remiffion of the
ſecond ſentence, even for the honour of government,
has never occurred; but all ftruggles againſt the na-
tural bent of an obftinate mind are vain and ineffec-
tual. It is befides an old obfervation, "that we
"often pardon thoſe who have injured us, but never
"thoſe we have injured.”
To the KING's moſt excellent MAJESTY. The humble
Petition of JOHN WILKES,
SHEWETH,
That your petitioner, having ftood forth in fup-
port of the conftitutional rights of this kingdom in
oppofition to a late violent adminiſtration, hath been
feverely profecuted at law, and fentenced to pay a
heavy fine, and to ſuffer an impriſonment of twenty-
two months; that the unfair methods employed, to
convict your petitioner have been palpable and mani-
feft; that the petitioner has always been your Majefty's
loyal fubject, zealously attached to your illuftrious
houſe, and will remain the fame to the end of his life;
that he looks up to the throne only for that protection
and juſtice, which eminently diftinguiſh your Majeſty's
royal character; that your petitioner with the greateſt
deference fubmits the whole of his cafe to your Ma-
jeſty's confideration, and humbly fupplicates your
royal clemency.
And your petitioner, as in duty bound,
fhall ever pray.
King's-Bench Prifon,
Nov. 28, 1768.
JOHN WILKES.
A FAIR
[ 45 ]
$45
के
蹙
​A FAIR TRIAL OF THE IMPORTANT QUESTION, OR
THE RIGHTS OF ELECTION ASSERTED; AGAINST THE
DOCTRINE OF INCAPACITY BY EXPULSION, OR BY
RESOLUTION: UPON TRUE CONSTITUTIONAL PRINCI-
PLES, THE REAL LAW OF PARLIAMENT, THE COMMON
RIGHT OF THE SUBJECTS, AND THE DETERMINATIONS
OF THE HOUSE OF COMMONS.
In which two pamphlets, entitled, "The Cafe of the late Mid-
dleſex Election, Confidered," &c.-And ferious confiderations
upon a late important determination, are very fully examined
and anfwered. With fome OCCASIONAL STRICTURES.
Erga civitatem ac cives optime ille fe gerit, qui omni victoriæ quæ
in Olympicis, aliifque tam belli quam pacis certaminibus com-
paratur, illam gloriam anteponit, quam Patriis Legibus minif-
trando nancifcitur, atque in hoc minifterio cæteris omnibus
per totam vitam præftare conabitur.
a Bis
PLAT. DE LEG.
F the people of England fhall ever come to be in fo
benumbed a ſtate, as not to feel, and to fhew they
feel, any real invaſion of their effential rights and pri-
vileges, the body politic must then be far advanced in
a general mortification, that can end in nothing lefs
than the death of Liberty. An indifference, even to
the great concerns of freedom, would be but a bad
ſymptom in a free ſtate; and rather argue, that the
conſtitution was not in it's natural foundneſs and vigour.
Liberty and Power are naturally as jealous of one ano-
ther, as any two ſtates can be of their ſeveral encroach-
ments. They ought not, however, to part for ſmall
bickerings, but ſhould bear little jealoufies without
breaking from them.
That the liberties of this country are not yet arrived
at the moſt dangerous ftage of a decay, late occurren-
ces have fufficiently proved: And amongst the figns of
the national ſenſe of the value and importance of great
conſtitutional
£ 146 J
conftitutional rights, may be numbered two laboured
publications, in defence of the late determination in
the cafe of the election of Middleſex; the profeſſed
defign of both which is, to prevent the public from
being miſled by thofe who have an intereft to impofe
upon them, and to guard them againſt falſe repreſenta-
tions, and alarms of vain apprehenfions.
The authors of theſe two performances have ac-
quainted us with their motives for fending into the
world their thoughts upon the weighty fubject they
have handled. But there was no occafion for an apo-
logy. The ſubject is worthy of any pen; and thoſe
gentlemen had a right to fupport an opinion, which,
very probably, they had given in a fituation of great
reſponſibility.
A queftion that could fo divide the wifdom of the
nation, and that now engages the body of the people,
is not a light matter. The proteftation of almoſt all
the reprefentatives of the landed intereft, upon a point
refpecting the rights of election, deferves very ferious
attention. Theſe are the vital parts of the conftitution:
If her cry is, Omnes jurant me Jovis eſſe filium, fed vul.
nus hoc mortalem effe me clamat; fhe ought to be heard,
and her wounds healed.
The liberties of this country owe much to the parli-
amentary difcuffions and remonftrances, on great and
fundamental poins, controverted in former days, when
the diſpute was between the pretended prerogative of
the crown, and the juft rights of the ſubject:
Explanations of that fort cannot in thoſe days be repeat-
ed. The revolution has taught the dulleft apprehenfion
the folly of fuch unnatural ſtruggles. If our liberties ſuf-
fer now, we muſt be the executioners ourſelves. "Tis
therefore but fit to warn one another of the danger to
which the commonwealth may be expofed, whether by
the
I
[ 47 ]
}
the misconduct, or the miſapprehenfion of momentous
meaſures in the ftate. So far the author of the cafe
had reaſon to ſay, he performed the duty of a good ci-
tizen, when on this occafion, he fubmitted to the judg-
ment of the public, thoſe reaſons and authorities which
had brought conviction to his own mind.
After his example, I propoſe to confider what he
and the writer of the ferious confiderations have fa-
voured us with; and, in doing it, I fhall follow the
author of the cafe, becauſe in that way, hardly any
thing can be miffed that is material to be obſerved up-
on the confiderations.
In general, the cafe appears to me to favour much of
that bias, which men of the law have been ſaid to have
to their calling in the interpretations they make of the
law. That fort of art ſeems to have been uſed, which
able men in the profeffion, fucceſsfully employ to di-
vert the attention from the effence of a difficult cauſe,
by ſpeaking to points very capable of being well fup-
ported, but which have no real influence upon the
merits of the queſtion under trial. This obſervation
will juſtify itſelf in the fequel, in which, for the fake
of perfpicuity, and to be more diftinct, I propofe to
proſecute the following method:
I. In the first place, I fhall take a general furvey of
the whole argument of the author of the cafe, and point
out what I apprehend to be a certain kind of confufi-
on, and fome particular fallacies that run through it;
by which the author's reafoning may miflead, but can-
not, in it's own plan, be otherwiſe than very deficient
and inconclufive.
II. Secondly, I fhall more directly and precifely fhew
what is not the queſtion; which will, in effect, only
be to fhew what the author fubftitutes in room of it.
III. Thirdly
VOL. III.
K
$
✔
>
[ 148 ]
i
3
III. Thirdly, I fhall ftate what the real queftion is;
and, for preventing all ambiguity, fhall explain the
terms neceffary to the underſtanding of it.
IV. Fourthly, I ſhall lay down what I apprehend to
be the principles and grounds, upon which the quef-
tion ought to be tried.
V. Fifthly, I fhall endeavour to examine the quef-
tion as ſtated and explained upon thofe grounds and
principles.
VI. And lastly, I fhall beftow a few words, to point
out the real inportance of the queſtion, and the danger
of the propofition, which I hope, in the argument, to
prove to be erroneous.
>
The first thing propoſed was to take a general furvey
of the whole argument of the author of the cafe, and
to point out what I apprehend to be a certain kind
of confufion, and fome particular fallacies that rún
through it, by which the author's reafoning may mif-
lead, but cannot, on its own plan, be otherwiſe than ve-
ry deficient and inconclufive.
Here I must content myſelf with fome detached
obſervations, and
Firſt, I obferve that the profeffed purpoſe of our au-
thor is to vindicate from mifapprehenfion and mifrepre-
fentation the late determination of the houſe of com-
mons: and " to this end he propofes (pages 2 § 3)
"to fhow from the records of parliament, and the
"authorities of law, that the houſe of commons is le-
"gally inveſted with the power they have exerciſed,
"with refpect to the late determination of the election
" for middleſex.
૬.
$3
"Farther, that on the general principles of reafon
and conftitutional policy, they ought to have ſuch a
power: and that, in the inftance in queftion, they
have
[· 149 ]
}
"have exerciſed their power in a juſt and conftituti-
❝onal manner, not only according to the law and uſage
"of parliament, but in ftrict conformity with the ad-
"judications in the courts of weſtminſter on fimilar
"" occafions.'
፡፡
(6
66
""
If, by the firſt part, our author means no more
than what he afterwards (at the top of p. 7) under-
takes to ſhow, not only from "the authorities of the
"moft antient and reſpectable lawyers, but from the
"records of parliament, that the houfe of commons
"have firft, the fole and exclufive power of punishing
"their own members as fuch, either by commitment,
expulfion or otherwife; and fecondly, the fole and
"exclufive power of examining and determining the
right and qualifications of electors and elected, to-
gether with the returns of writs for the election of
"members; and, in fhort, all matters incidental to
"fuch elections." I fay, if our author means no more
than this, there may be a confiftency in this argument:
and all that can be faid, is, that the author is at im-
menſe labour to prove two propofitions which I fhall
not deny, even as laid down by himſelf. But if our
author means, by what he propoſes in p. 2, that he is
to ſhow that the houſe of commons legally are, and
ought to be invefted with a power, fimply by a vote of
their own, to make a law of diſability, by which a per-
fon fhall not only be deprived of his feat, but disfran-
chifed of his eligibility: I fay, if our author means
this, he means a very different thing from that he first
mentioned: though, perhaps, a thing more confonant
to the profeffed end and defign of his undertaking.
And that this is what the author does mean and propoſe
in p. 2, would appear from this very conlideration,
that nothing elſe is to his purpoſe.
However, it is evident that what will prove the two
points propofed to be proved in p. 7, will not prove
K 2
what,
པོ
}
{
[ 150 ]
what, in p. 2, is propoſed to be ſhown, if thereby it
meant what is laſt above fuppofed.
There is therefore here a downright confufion of
terms, or rather of ideas. And if the reader is not
more careful to attend diſtinctions, than the author has
been to make them, he will in a mift of words, be
carried away to a proof of propofitions not controverted,
inſtead of a proof of the fole point in difpute; for
evincing which the other propofitions are of no avail.
Secondly, I obferve in farther confirmation of the
alledged confufion of our authors's arguments, that,
after giving a detail of the proceedings in regard to Mr.
Wilkes, which take up from the words above cited in
p. 2, to the middle of p. 4, he there, by way of refum-
ing the thread of his difcourfe, informs us, that "in
"order to fhow that the houſe of commons is legally
« inveſted with the power they have exerciſed on
"this occafion, it will be ncceffary to explain the
nature and extent of the powers conftitutionally
vefted in that houfe;" from which it is plain, the
only way to know what power our author's argument
tends to fhow the houſe of commons to be inveſted
with, is, by attending to his own account of the con.
ftitutional powers of the houſe. Accordingly, let it
be obferved in the
Third place, that all the account our author gives us
of the conftitutional powers of the houſe of commons,
is this, "that jointly with the other two eftates,
they have a power of legiflation, and that feparately
"and independently they have a power of judicature;"
and our author tells us, (bottom of p. 6)" it will not
"be material on the preſent occafion, to enquire into
the various fubjects over which the jurifdiction of
"the houſe of commons extends. It will be fuffi-
"cient, with regard to the queftion now under confi-
"deration, to fhow (as above mentioned) that the houſe
"have
[151]
66
❝ have the ſole and exclufive power of puniſhing their
own members, and of examining and determining
"as to election." Hence nothing can be more evident
than this, that if the power of judicature in the houſe
of commons, exerciſed in two inftances, is not ſuffici-
ent to prove the houſe to be legally invefted with the
power they have exerciſed with refpect to the late de-
termination of the Middlefex election, it is not pro-
ved.
A fourth obſervation to be made, refpects the am-
biguity with which our author expreffes himſelf as to
the law of parliament, of which our author makes a
ſovereign ſpecifick that can diffolve the moſt facred
rights of the fubject, if they are but thrown into his
ftate crucible.
Our author acquaints us (p. 4th, at the bottom) that,
"the rule, and only rule, by which the power of ju-
"dicature (of the houſe of commons) is directed, is
"the law of parliament, which is part of the law of
"the land,"
The pains taken to prove from Lord Coke, Lord
Cowper, Holt, Hale, and other judges, that there is
a law of parliament, might have been fpared. I agree
that the lex & confuetudo parliamenti, is part of the law
of the land. What it means, fhall hereafter be confi-
dered. Our author intends to convey this idea, that
the law of parliament is the only norma judicandi in the
exercife of the judicature of the houſe of commons;
and, in p. 6. he teaches us that "the law of parlia-
86
ment, in matters thereby cognizable, is diſtinct from,
❝and independent of all other laws." By which it is
clear he intends, that the law of parliament is the mere
will of the houſe of commons, For, at the bottom of
P. 12, he fays, "let it be admitted for a while, that
"expulfion does not of itfelf create an incapacity of
"being re-elected; yet ftill it will appear, that the houſe
K 3
[152]
1
-68
of commons not only as expofitors of their own refo-
"lutions, but, as expofitors of the common and fta-
tute law of the land, in caſes where their jurifdiction
" is competent, have a right to declare, who are, and
"who are not eligible as members of parliament."
"And that (he immediately adds) leads to the next
"propofition, which is that they have the fole power
"of determining all matters incident to elections."
Which propofition, though the only fountain from
which the other doctrine is drawn, will juft prove it as
much as any propoſition whatever, the moſt remote
from the ſubject. And the whole reſolves into this, that
becauſe the houfe of commons are, as our author calls
them, the fole expofitors of the law, they may make
the law to be what they pleafe. The doctrine is in
the ftile of the law of the twelve tables, uti dixiffet, itä
jus efto. But it is the reaſon of every law, that no man's
will, nor the will of any body of men, except in a le-
giflative capacity, fhoud be a law, or fhould, in judi-
cature, be a rule of judgment.
Our author confounds the power with the exrcife of
judicature. But they are very diftinct. The power
of judicature is jurifdiction, or the right to judge.
The exercife of judicature is the giving of judgment,
or judicial acts. The law of parliament may be, and
it is, the only rule by which the jurifdiction, or power
of judicature of the houſe of commons is directed, i. e.
ruled, modelled, afcertained and eſtabliſhed: but the
law of parliament is not the only rule by which the ex-
ercife of the judicature of the houſe of commons, mean-
ing their judgments or judicial acts, is directed. For
the rule of judging will be different, fecundum fubjectam
materiam. The very matter of elections, which is the
peculiar of the juriſdiction of the houſe of commons,
involves rights which must be judged of by the com-
mon and by the ftatute law.
་
In
}
[ 153 ]
In the very paffage of Lord Coke, which is our
author's own authority, the poſition is, that "all
"weighty matters in any parliament concerning the
peers of the realm, or commons in parliament affem-
"bled, ought to be determined, adjudged and difcuf-
"fed by the courfe of parliament, and not by the
"civil law, nor yet by the common laws of this
"realm." Now furely the fucceffion or right to a
peerage, may be one of the weighty matters in parlia-
ment moved concerning a peer of the realm, and it is
fo peculiar to the jurifdiction of the houſe of lords, that,
no other court can meddle with it; but the.common
law of the realm would be the rule of judicature in
that cafe. And moft certainly (to ufe Lord Coke's own
words)" a pari ratione, the like is for the commons,
"for any thing moved or done in the houſe of com-
"mons."
Why then did our author uſe ambiguous terms? on-
ly becauſe they could miſlead, and clear expreffions
would have cut up the very foundation of his pofition.
He would not plainly and directly fay, the law of
parliament was the only rule of the excercife of the
judicature of the houſe of commons. Common fenfe,
affifted with a very little law, was fufficient to reject the
notion. Yet what he had not courage to fay, muſt be
underſtood, or his argument was of no ftrength. There-
fore what could not be avowed was to be couched, and
conveyed in a fog. For which reafon he ufes the am
biguous term, power of judicature.
"Tis not unworthy of a remark too, that the words
quoted by our author from Lord Coke, are not in that
part of his treatiſe where he explains the lex & confue-
tudo parliamenti; but are taken from the article in which
he profeffedly treats of the judicature of parliament.
But our author went fo far forward in the book to find
out the uſeful words, power of judicature, to join them
K 4
with
A
[ 154 ]
1
with what Lord Coke had fome leaves before deliver-
ed as to the laws and cuftoms by which the Court of
parliament in general, not the houfe of commons in
particular, fubfifts.
The inaccuracy of Lord Coke's diction; particularly
in the word directed, is even made fubfervient to our
author's turn. But Lord Coke himſelf explains that
word by the other fubfifts, which cannot poffibly be ap-
plied to the excercife of judicature, or to any thing elſe
but the conſtitution and jurifdiction of the court of par-
liament, i. e. of both houfes in their feveral capacities
It was not in the view of Lord Coke to define the rule
of decifion as to matters to be determined by the houſe
of
}
*
The whole paffage which our author has mutilated, will
make this very clear. As every court of juſtice (fays Lord Coke)
hath laws and culoms for its direction, fome by the common
law, fome by the civil and canon las,fome by peculiar laws and
"cuftoms, fo the high court parliament, fuis propriis legibus & con-
fuetudinibus, fubfiftit (it is lex & confuetudo parliamenti) * that all
"weighty matters (in any parliament,) moved concerning the
"peers of the realm, (or commons in parliament affembled,)
"ought to be determined and adjudged, and difcuffed by the
"courfe of parliament, and not by the civil law, nor yet by the
"common laws of this realm (uſed in more inferior courts,
66
which was fo declared to be ſecundum legem & confuctudinem par-
"liamenti, concerning the peers of the realm, by the king, and
❝and all the lords fpiritual and temporal) and the the like (pari
❝ratione) is for the commons, for any thing moved or done in
"the houfe of Commons; (and the rather, for that by the law
"and cuftom of p rliament, the king cannot take notice of any
Ci
thing faid or done in the houſe of commons; and every mem.
"ber of the house of parliament hath a judici 1 place and can
"be no witnefs.) And this is the reafon that judges ought not
"to give any opinion of a matter of parliament, becauſe it is
not to be decid d by the common laws but fecundum legem & con-
fuetudinem parliamenti; and fo the judges in divers parliaments
"have confeffed; (and fome hold that every offence committed
"" in
*The word inclofed within the () are thofe omitted by ou
ouf
author.
،
{
}
+
[ 155 ]
of commons, or to affert that the law of Parliament
was the only ſtandard for the exercife, of their judica-
ture *, but merely to declare that the parliament, like
all other courts, has its own laws and customs by which
its power
is conftituted, and its proceedings regulated,
and that what belongs to the jurifdiction of parliament
is
"in any court, punishable by that court must be punished, pro-
"ceeding criminally, in the fame court, or in fome higher, and
“not in any inferior court, and the court of parliament hath no
higher.
Lord Coke here alludes only to the nature, fubjects, peculiari-
ties and excluſiveneſs of the jurifdiction of parliament, and the
particular mode of its proceeding by what is called the courſe
of parliament. Its independency of the crown, and its fuperio-
rity to all other courts, he cheifly has it in his eye to eſtabliſh.
What he fays is applied equally to the houfe of peers and the
houſe of commons, and to all matters of legiſlation, of judica-
ture, or of counſel.
66
* Our author, in a note, mentions as a proof that the lay of
parliament is the only rule of the judicature of the houfe of com-
mons, the record containing the anſwer given by the judges,
when confulted as to the releaſe of ſome members of the com-
mons, impriſoned while parliament was not fitting," that it was
not their part to judge of the parliament which was judge of
"the law." The commons would not now put fuch a question
in the reverence of the judges, being merely a matter of pri-
vilege. But that the judges did then, as they would now, give
an opinion upon a queftion of law, when properly put to them,
Lord Coke produces an inſtance, in the parliament begun No-
Vember 7, ift Henry the VII. " on the first day of which it was
"refolved by all the judges, as to all thoſe that were attainted of,
"treafon, and returned knights, citizens or burgeffes of parlia
ment, that the attainders were to be reverſed by the authority
•of parliament before they could fit in the houſe of commons,
"and that after the attainders were to be reverfed, both the
"lords and thoſe of the houſe of commons might take their
"places, for fuch as were atainted could not be lawful judges fo
"long as their attainders ſtood in force: and thereupon the at-
“tainders were refolved by act of parliament, and then they
"took their places in parliament."
¿
[156]
T
t
is not to be meddled with any where elfe, but there
proceeded in according to parliamentary rules.
Our author in fome meaſure corrects himſelf, for in
p. 6, he fays" it is by the law of parliament, and by
"this only that the houſe of commons regulate their
proceedings, with reſpect to the various fubjects of the
juriſdiction they exercife." In the former pofition it
was the only rule by which the power of judicature
of the houſe of commons is directed." Thefe two
things are very diftinct, and would appear fo more, if
if it had been faid, that by the law of parliament they
regulate their form of proceedings, which is all that
the words can naturally mean. But it was intended by
this as well as the other mode of expreffion, impercep-
tibly to infinuate, that the houfe of commons has no
other rule by which to judge or determine in any cauſe,
but the law of parliaments: and that our author takes
care to make fuch a rule as excellently fuits his own
purpoſe. For if he is dark and ambiguous in his uſe.
or application of the law of parliament, he is not more
clear in definition of it.
In p. 6, he ſays, "the law of parliament may be
"confidered as compofed of two branches, 1ft. the
"rules, orders, cuftoms, and courſe of the houſe, with
"their expofitions of, and decifions upon the law, with
"reſpect to matters within their jurifdiction." The
fecond branch compofing the law of parliament, con-
fiſts, (according to our author)" of the ftatute law of
*"the realm, fo far as the fame regards the houſe of
" commons, or the jurifdiction thereof."
That the rules, orders, customs, and courfe of the
houſe, are the law and cuftom of parliament, fhall not
be diſputed but what makes their expofitions of, and
decifions upon the law, part of the law of parliament,
I know not unless it be our author's own doctrine, that
the houſe, "as expofitors of their own refolutions,
and
}
F
[ 157 ]
<< and expofitors of the common and ftatute law, have
a right to declare, who are, and who are not eligible
. as members of parliament."
The decifions of the houſe in matters of elections,
were fo little a law to themſelves, till an act of parlia-
ment made the laft derermination final, that the vari-
ation of them was a public reproach.
But our author has a curious method of proving,
that the decifions of the houfe of commons are part of
the law of parliament. "The customs," (fays he)
"courfe and common judicial proceedings of a court,
66 are the law of the court, of which the common
"law takes notice without alledging or pleading any
"ufage or preſcription to warrant them"
The form of judicial proceedings may be, in fome
fenſe, the law of a court. But the decifions or deter-
minations of a court are not the laws of a court, fo
much as they may be ſaid to be the law of the land, if
they are at all law. And nobody, I believe, ever heard
of notice being taken of a decifion, as a court takes
notice of an act of parliament, which it is pars judicis
to do. As to alledging or pleading an ufage or pre-
ſcription to warrant decifions, or to warrant the cuf
toms and courſe of a court, it is hardly intelligible.
To clinch the matter however, our author, in the
next paragraph, fays, " that the courfe of any particu-
lar law, and that the determinations of a court make part
"of the law of the land; has been held from the ear-
"lieft times, fo far back even as the year book of II.
"Edward."--In the former citation the judicial pro-
ceedings of a court were the law of the court. Here,
the thing really intended conveniently creeps out of its
fhell of ambiguity, and we are told in plain terins, the
determinations of a court make part of the law of the
land. The confufion runs between the law of a court,
and
!
}
1
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}
[158]
and the law of the land; between common judicial
proceedings which fignify the form only of proceed-
ings, and the determinations of a court. The end of
all which, is to make part of the decifions of the
houſe of commons the law of parliament, and confe-
quently the law of the land, becauſe the determinations
of a court, (fays our author) make part of the law of
the land.
A feries rerum judicataram in a limited fenfe may be
confidered as law, becauſe courts are very cautious in
departing from what is eſtabliſhed by long practice;
the law in its humanity judging it better, in fome cafes,
even to adhere to confirmed error, than to fhake foun-
dations upon which the people, trufting to the authority
of decifions have built. But no lawyer ever afferted,
that determinations of a court abfolutely, and in the
abſtract, were law and if a year book older than King
Alfred had faid fo, it only ſpoke inadvertently. Very
grey hair'd determinations have yielded to principles,
when they came to be farther examined and better un-
derftood. But of all determinations in the world, thoſe
of the houſe of commons, in matters of election, in
paſt times, had the leaft claim to this priviledge, the
fluctuation of which was a very taunt and a proverb
till an act of parliament interpofed.
The pofition of our author needed fome confirma-
tion, and he has given it in the following words.
"Thus the rules, orders, and courſe of the houſe of
commons, with their expofitions and decifions on
"matters coznizable before them, are as much the
"law of the land, as the rules and orders of the court
"of king's bench with their determinations, are the
law of the land. Nay fuch proceedings and deci-
"fions of the houſe of commons, are in truth more
"binding than thofe of the courts at Weftminster, be-
"caufe from the former there lies no appeal."
The
:
[ 159 ]
The determinations of the court of king's bench,
or any other fuch court, are law in the fenſe which
has been mentioned, and in that only. To their fupe-
riority in point of uniformity and confiftency, we refer
the compariſon between them and the determinations
of the houſe of commons, before the act of parliament
put a stop to their fhameful variation. Though fub-
ject to no appeal to any other court, they were con-
ftantly liable to, and affected by appeals from the houſe
at one time, and in one cauſe to the houſe at another
time, and in another caufe: an appellate juriſdiction,
of all others the most dangerous and found in ex-
perience to be the moſt deſtructive of the end of judici-
al determinations, which is to do juftice, to quiet minds,
and give ſtability to their rights and poffeffions.
With regard to our author's fecond branch of the
law of parliament, it is a divifion, that inftead of dif
tinguiſhing, does moft effectually confound the thing-
profeffed to be ſeparated. I can hardly make ſenſe of
the ſtatute law being a branch of the law of parliament
in the fenfe in which our author ufes the laft term,
namely as in contra-diftinction to every other ſpecies of
law. But if he allows the ftatute law to be part of the
law of parliament, fo far as it regards the houſe of com-
mons, or the juriſdiction thereof, it is difficult to con
ceive, how he can exclude the common law from be.
ing alſo a part of the law of parliament under the
fame limitation: For it cannot be denied that the com-
mon law is of equal force with an act of parliament.
And it is jeft to fay, the common law does not regard
the houſe of commons, or the juriſdiction thereof as
much as fome particular ftatutes do. Our author,
however, had a very good reaſon, which will hereafter
appear, for not including the common law in his defini-
tion of the law of parliament. The real truth is, nei-
ther the ftatute law nor the common law are, in any pro-
per fenfe, part of the lex & confuetudo' parliamenti, though
that may; properly enough be faid to be part of the
{
common
1
1
[ 160 ]
common law of the land. But both the ftatute law
and the common law are a law to parliament, as well as
to inferior courts, when they are the law of the fubject
upon which the juriſdiction of either houſe of parlia-
ment is exerciſed.
Our anxiety to ſet our author's doctrine, as to the na-
ture of the law of parliament, in its true light, has
drawn out this laft obfervation to an unexpected length.
We now proceed.
Fifthly, to obferve upon the general ſcope of our au-
thor's argument, that we do not perceive the occafion
there was for the proofs he has brought to eſtabliſh the
power of expulfion, and therefore pafs over the pages
occupied therewith. Neither can we find that he has
given any thing like an argument upon the more ma-
terial head of incapacity or difability, but two. The
firft is, that expulfion by neceffary confequence and ex
vi termini includes incapacity, the illuftration of which,
fills from the top of the 9th page to the bottom of the
12th, but proof or authority there is none offered. The
fecond is, what was before mentioned, that, “admit-
66 ting expulfion does not create incapacity, the houfe
"of commons have a right to declare who are, and who
"are not, eligible as members of parliament," which
is the doctrine laid down at the bottom of page 12.
How far this is a proper method of vindicating the
proceedings of the houſe of commons, it is for our
author to confider. But it is clearly changing their
ground, as they have laid the incapacity upon the
expulfion. Perhaps our author thought this foun.
dation needed to be ftrengthened.
In fupport of the doctrine in the fecond pofition,
we are referred to nothing but this fingle propofition,
"that the houſe has the fole and exclufive right of de-
"termining all matters of, and incident to elections
" and
1
Y
1
7
[161]
t
" and returns." To eftablish which propofition a
number of authorities and cafes are cited, which fill
up
from the top of page 13, to the bottom of page 30.
But with theſe authorities and cafes we have very little
to do, as we do not difpute the propoſition itſelf. What
we have to obferve is, that our author has placed the
effence of the propofition in the exclufiveness of the
jurifdiction, whereas the moft effential part of it is the
object of juriſdiction; namely the qualifications and
difqualifications of the electors and elected: And the
point is, whether the right to judge of theſe reaches to,
or includes a power to incapacitate or diſable; or what
is meant by declaring who are, or are not eligible.
The authorities which prove the exclufive jurifdic-
tion of the houſe of commons to judge of the qualifi-
cations of the electors, conclude nothing to the power
of incapacitating the elected. Thus at once, we get
rid of all the cafes from p. 13, to p. 26. As to the
qualifications of the elected, it is faid (p. 26, med.)
"the right of the houſe to decide with reſpect to them
was not in any of the cafes difputed.” But then it
remains to be fettled, what is implied in deciding upon
the qualification and difqualification of the elected.
And this muſt depend upon the fenfe in which the
words qualification and difqualification are taken.
<<
If qualification and difqualification of the elected
are quite fynonymous terms with a capacity and incapa
city to be choſen; and deciding upon the qualification
and diſqualification of the elected, is a convertible
term with declaring, or by declaration, making one
eligible, or not eligible; then it may be enough to fay,
the houfe of commons are admitted to have the fole
right of deciding with regard to the qualifications of the
elected.
Such an expofition, or converfion of terms however,
not being felf evident, it is not unreasonable to demand
fome
}
[ 162 ]
fome authorities; and without authorities, no one is
at liberty, in argument, to ufe the different terms indif-
ferently. Which compels me for a
Sixth obfervation, to put our Author in mind, that
this is one inftance more, in which he has egregioufly
trefpaffed in the article of confufion of terms; and
that his argument muft neceffarily, from that very cir
cumſtance, be looſe, deficient and inconclufive. '
It has already appeared in the different places which
have been occafionally cited, that our Author's general
propofition is this;." That the houſe of commons
"have the exclufive power of examining and deter-
mining the rights and qualifications of electors and
"elected."-page 13th. Which is formally ftated,
as convertible with the right of the houſe to declare
who are, and who are not eligible; becauſe in fupport
of the latter, the former is undertaken in the fame
page 13, to be proved, and is the only proof of it.
Again, in page 26, It is the " right of deciding
"with reſpect to the qualifications of the elected."
which is faid not to have been difputed. But inftantly,
in the very next page 27, we find the terms capacity
and incapacity fubftituted in room of qualification
and diſqualification, and ufed exactly as of the fame
import. Thus, fays our author, (page 27, at the top)
"When the body which expelled him is diffolved,
"his capacity of being elected revives. The incapa-
"pacity is not perpctual." And but two lines lower,
the term difqualify is refumed as equipollent.-" the
"houſe of themſelves can difqualify any member."
-And again in the next paragraph, the term difqualify
is repeated, and applied with the fame indifcrimina-
tion, in theſe words." By their refolutions only
"perfons of various claffes are difqualified.”
It is nevertheleſs evident, that thofe terms are 'of
the utmoſt importance in the argument. They enter
the
}
كم
[163]
1
كم
the very effence of the queſtion. Yet our author con-
founds, changes, and alternately uſes them, without
offering, or having to offer, one fingle authority to
warrant it. The reafons will hereafter appear, why
this promiscuous application of the terms cannot be
admitted of. At preſent we ſhall only fay, that where
terms are promifcuouſly uſed, without fettling or affix-
ing their precife fignification, it is impoffible the ar-
gument can proceed with real force, or conclude to
fair demonſtration. In farther confirmation whereof,
we may obferve,
56
Seventhly, That our author alfo introduces forfei-
ture, as another equivalent term, mixed up in the
jumble, with difqualification and incapacity. He
confounds a judgment or fentence of the houſe of com-
mons, applying or giving effect to a forfeiture in-
curred by law, as the fame thing, and of the fame
import, with their making an incapacity to be choſen
by their own declaration or refolution. Thus in
page 27, after afferting, as before mentioned, that
"the houfe of themſelves can difqualify any member
during that parliament," he adds, as the reaſon
or proof of that affertion, "That whatever fort of
a right, the right of being elected is, it may, like
"other rights, be forfeited by crimes and miſde-
"meanours," and (fays our author) "Who fhould
"judge of thoſe cauſes of forfeiture, but the body
"of which he is a member?"—As if judging of
a caufe of forfeiture incurred by law, was nothing
different from making the cauſe of forfeiture without
any other law, but the fentence or refolution which
inflicts it; than which nothing can be more abfurd.
<<
It ſeems therefore to be totally befide the purpoſe,
what our author proceeds in the very next line to ſay,
that "indeed the right of jurifdiction in the houſe
"of commons, in this reſpect, is ſo fully eſtabliſhed
VOL. III,
I
" by
[164]
by inmemorial ufage, that it cannot be difputed
"without controverting the fundamental principles
"on which the law of the land depends."From
this the only thing to be collected, is irrefiftible evi-
dence, that our author means by the " right of
judging of a cauſe of forfeiture, the fame thing with
the "right of deciding with reſpect to the qualifica-
tions of the elected; which in the preceeding page 26,
he informs us, "had not been in any of the cafes
"difputed." Accordingly upon that principle, and
in confirmation or illuftration of what he fays in page
27, as above-cited, "that the right of jurifdiction
"in the houſe" of judging of cauſes of forfeiture,
"was fo fully eſtabliſhed by ufage," he proceeds to
mention that "the houſe, as appears from their jour-
"nals, have determined with reſpect to the quali
"fications of the elected, from time to time, down
"from the year 1553, to the prefent period: And
"it is (he adds) by their refolutions only, that
"perfons of various claffes are at this day difquali-
"fied." Which leads to this
Eight obfervation, that whereas our author's general
pofition is," that the houſe of commons has the fole
" right of deciding upon the qualification and difqua-
lification of the elected,"-upon which alone he reſts
the proof of this other propofition," that the houſe
"have a right to declare who are, and who are not
eligible as members of Parliament:" when he gives
us a lift as he here proceeds to do in page 27, and
down to page 32 of the various claffes of perfons, who
by the refolutions of the houfe of commons only, are
at this day diſqualified; or, as he immediately expounds
the term, are by their refolutions not eligible, fuch as
clergymen, judges, &c. or when, as he expreffes him-
felf in page 29, he gives us "various other inftances
"in which, befides theſe permanent difqualifications,
the
[165]
"the houſe have determined and adjudged with refpect
"C
to the qualifications of the elected, adjudging per-
"fons not to be eligible:" I fay, when our author
does this, it will be neceſſary, in conſidering his lift and
inftances, carefully to attend and diſtinguiſh to which
particular ſpecies of non-eligibility, (which is a term
that comprehends every thing) ranked under the genus
of decifions upon the diſqualifications of the elected,
the inftance produced refers and belongs. For as our
author has, by a juggle of words, confounded under
one generick deſcription of decifions upon the difqua-
lifications of the elected, every particular fpecies of
diſqualification, properly fo called, and every ſpecies
of incapacity, and alfo forfeiture, and that fort of dif
qualification, which I ſhould term diſability, and non-
egibility by mere declaration or refolution of the houſe
of commons: It is plain, that in an accurate difcuffion
of this fubject upon the precife and diftinct terms, no
inftance or clafs of inftances can have the leaſt perti-
nence to the real queftion, but fuch as fpecially belong
to that fort of diſqualification or non-eligibility, which
ought to be termed difability by the mere refolution
or declaration of the houſe of commons. It is evi-
dent that every inftance of difqualification, incapacity,
forfeiture, difability, or non-eligibility, arifing from
any cauſe external to the refolution or declaration of
the houſe of commons; or fpringing out of any law
or conftitution antecedent to, and independent of fuch
refolution is totally foreign to the prefent difpute.
Whether, or how far, the inftances given by our
author in his lift do, or do not belong to the one or the
other of thoſe deſcriptions, will be examined hereafter.
We are at preſent only ſpeaking of the general con
ftruction, ſcope, and tendency of our author's reaſon.
ing and it is fufficient to have given this hint of the
caution neceffary to a juft confideration thereof. That
we do it not without reafon, will be ſtill more manifeft,
when we farther obſerve, in the
L 2
Ninth
[ 166 ]
a
}
Ninth place, that nothing can be more vague, looſe
and confuſed, than our author's expreffions as to the
declaration or decifion of the houfe of commons, by
which this incapacity is made, or, in his language, is
declared; although upon this very thing, his whole
argument hinges, and it's force entirely depends.
<<
Our author has given it no leſs than three or four
different turns, and all of fuch different import, as moft
materially to affect the queftion. In page 10. §. pe-
nult. he fays," the houſe may declare who by law are
not to be chofen;" fecondly, at the bottom of page
12, he fays, (leaving out the words, by law)" the houſe
"have a right to declare who are, and who are not eli-
gible, as members of parliament."-Thirdly, in page
27, at top it is faid, "the houſe of themſelves can
"diſqualify any member;" 'tis indeed added, " dur-
"ing that parliament,' but the length of time is
not of the effence of the queftion. Here too, alſo,
may be obſerved, fourthly, what is faid page 30, §. pe-
nult. That this houſe " have excerciſed the right of
"adjudging and declaring the incapacity of being
+
Y
GC
પ
elected, not only as expofitors of the written, or
"ſtatute law, but even where the law has been filent-
they have adjuded perfons incapable of being elect-
ed, from the particular circumftances of the cafe,
and upon general principles of conftitutional poli-
cy.”.
And lastly, what is mentioned, page 27,
That" it is by the refolutions of the houfe only, that
" perſons of various claffes, are this day diſqualį-
"fied."
The judicious reader will carefully ponder thefe va-
rious modifications of this declaration of difqualifica
*ion, the houſe of themſelves can make; for the feve-
ral fhades differ exceedingly, and the variety of expref-
fion is not a little perplexing, in an argument which
requires the nicest precision, and the force whereof de-
pends
[ 167 *]
pends entirely on the terms of the queftion. Light-
and darkhefs do not more difagree, than thoſe different
kinds of declaration, or adjudication, which our author
has heaped together. Nor can latitude or indiftinct-
nefs of expreffion, be more induftriouſly uſed to dar-
ken and confound a ferious and interefting difquifition.
As a
..
Tenth obfervation, I cannot help taking notice of
one particular part of our author's reaſoning, though
very unwilling to lengthen out this part of the work
with trifles below obfervation. Page 27, at the top,
our author is pleaſed to expreſs himſelf thus: None
can ſay that, in the prefent inſtance, the right of
"being elected is taken away; for in truth it is only
"ſuſpended, during the exiſtence of this Parliament."
Now this is clearly making the term or endurance of
diſability, the fole foundation of the power from
which it is derived; which is an origin of jurifdiction,
I am not acquainted with, and muſt, I think, be fin-
gular in the houſe of commons. In other courts, it
is the jurifdiction, which warrants the act, and not
the act, which founds the jurifdiction
But, waving this, it appears to me that our author
is rather too ludicrous here for the ſubject he is upon.
He ftrangles the conftitution, only it is with a filken
cord; as if the found of the word fufpend could di-
minish the effect of a real deprivation, or fweetening
the potion deaden the poiſon. With the fame-breath
that our author tells us the right is only fufpended, he
gives the act its true denomination, when he fays in
the next line," the capacity will revive-and the inca-
"pacity is but temporary"-adding at the fame time
the harſheft of all names, when he calls it a " forfei
ture." I know not what comfort it would be to a per-
fon unfortunate enough to be ſhut up in a dungeon, ta
tell him his liberty was not taken away, but only ſuſ-
pended,
*
L3.
[ 168 ]
1
C
1
pended, becauſe he was adjudged to be imprisoned for
no more than ſeven years; or to alleviate the lofs of an
eftate, by informing the fufferer the enjoyment of it
was only fufpended, becauſe it was forfeited no longer
than during the exiſtence of feveral generations. It is
not in words to alter the nature of things. The right
in queſtion is taken away effectually, though not for
ever. And if to make the incapacity perpetual, is,
what our author fays, in the better opinion, perhaps (for
he is very cautious in his expreffion) an act of parlia-
ment only is fufficient, it may merit the enquiry we
fhall hereafter beſtow upon it, how any thing but an
act of Parliament, or fome other law of equal force,
can take it away for any fpace of time; fince as the
logicians ſay, majus aut minus non varient ſpeciem.
I am glad to conclude this firft and moſt diſagreea-
ble part, by only farther taking notice in the laſt place,
that our author has, I think, unfucceſsfully endeavour-
ed to avail himſelf of inaccuracy at beſt, which he im-
putes to the advocates on the other fide of the quef-
tion, when he tells us, p. 26, "they contend that the
" right of being elected is a common law right, of
"which no man çan be deprived but by act of par-
liament." Who is alluded to I know not.
The right
in queftion, is derived from the constitution, in which
the people of England have an inheritance, as they have
in the ordinary courfe of juftice, which the commons
of England have called the common birth right of the
fubject. An act of parliament itſelf to take away the
common birth right of the fubject, would be an act to
take away parliament and the conftitution wholeſale.
But common right may be limited or taken away by
operation of law and change of circumftances in the
perſon of any individual.
Our author's anfwer
for, is but a poor one.
to what he fays is contended
He fays,
He fays," in the first place,
it is affuming a propofition for granted, which may
fafely
[169]
"fafely be denied, becauſe the right, as was ſaid in
"the cafes here cited, is à parliamentary right, to be
"excerciſed only in parliament, and therefore cogniz-
"able there only, where the duty is to be executed."
That is but jargon. The right of being elected is a
common law right in its origin and foundation, and a
parliamentary right in the uſe and excercife of the ca-
pacity conferred by the election; that is, the right of
fitting and voting in parliament. The right of being
elected can be excerciſed no otherwife than by enjoy-
ment, and it is not enjoyed in parliament, but in the
community,—as a right of citizenſhip. It exists be-
fore, and together with, the right of memberſhip when
chofen, and fubfifts after that ceafes. It is the common
right of the ſubject, and it is fo defcribed by Lord Coke
and Dr. Blackiftone, both of whom affert, that every
fubject of the real (not difqualified by law) is eligible
of common right.
The author's other anfwer, that the right is not tak-
en away but fufpended, merits no more attention than
has already been paid to it.
The remaining part of our author's performance
from p. 31, to the end, being only to prove that the
fole right of judicature in matters of election, ought
to be veſted in the houſe of commons, and that the late
determination was agreeable to adjudications in Weft-
minſter hall; it is unneceffary to make any obſervations
thereupon: becauſe the jurifdiction itſelf is admitted and
the property of it affented to.
of it affented to. Nor would I wish it to
be taken away, even becauſe of errors that have been
committed in the exercife of it. On the contrary, I
ſubſcribe moſt heartily to all the authorities cited by
our author in fupport of the exclufive right of judica.
ture in the houſe of commons: And I honour as high-
ly as he can, the firmneſs with which they have reſiſted
L 4
every
[170]
every attempt to invade their jurifdiction in matters of
election, and have alſo affèrted their fole right to order
writs for filling up vacancies during the fubfiftence
of Parliament. Thefe I confider to be fundamental
rights of the houſe of commons, and effential to that
great right of the people the freedom of elections.
With regard to the other matter of compariſon
with the adjudications in weſtminſter hall, I am rea-
dy to admit, that where there is a clear legal incapa-
city, votes given to the perfons incapacitated, may be
confidered as no votes at all, if they are knowingly ſo
given, becauſe fuch is the fummun jus of the caſe:
and therefore the queftion here, is, as to the inca-
pacity itſelf, which brings us, as was propofed, in
the
Second place, more directly and precifely to show
what is not the queſtion, which as I faid) will in effect
only be to give that which our author erroneoufly fub-
ftitutes in place of the true queftion, or by which he
diverts from it. And
Firſt, it is not a fair, at leaſt it is not a diftinct ftate
of the queſtion, which is included in the propofition
with which our author fets out, as the thing he is to
prove as decifive, namely, " that the houſe of com-
"mons is legally invefted with the power they have.
"exerciſed, with refpect to the late determination of
"the election for Middiefex, and that they ought to
"have fuch a power; and, in the inftance in queftion,
"have exerciſed their power in a juft and conftitutio-
"nal manner." The ambiguity lies in the term,
power of determination. And we refer to the general
obfervations which have been made.
Secondly, The queftion it not, nor is it any queſtion,
or of the leaft influence upon the prefent debate, whet-
her there be fuch a thing as the law of parliament,
or
171) J
1
Both are ad-
this queſtion
or if it be part of the law of the land.
mitted. And fo far as it is of uſe in
to know what the law of parliament is, or in what
fenſe it is the law of the land, our author has given
fo very, imperfect an account of either, that it cannot
be learned to any purpoſe from all he has faid.
Neither
Thirdly, is it the queftion, whether the houfe of
commons has the fole and exclufive power of puniſh-
ing its own members as fuch; which is the first clear
and direct propoſition our author needleſsly employs
himſelf in proving. For this power is not denied to
be inherent in the conftitution of the houfe; as indeed
fome internal power of correction feems to be incident
to every fociety. Nor is it of any confequence, to
difpute in this cafe about the modes of puniſhment
ſpecified by our author, viz. commitment, fufpenfion
and expulfion. What the "otherwife" he adds may
be, I know not. The power of expulfion is the only
thing we have to do with at prefent. And, I take for
granted, it is generally conceded, or at leaſt not diſput-
ed, as ſtanding on the most antient, conftant, and con-
tinued practice, which does, I think, eſtabliſh it as the
law and ufage of parliament *:
Fourthly,
*As to commitment, there is no doubt, fufpenfion ſo far as it
means a féqueftring till trial, and which muſt always be the effect
of commitment; or if it means, excluding from fitting while the
very externals of the return, or right to fit, are queftioned,
which was antiently done by a recommendation to a perfon to for-
bear to come into the houſe; and at this day is done in the caſe
of double returns, by declaring both members to withdraw:
fuch a fort of fufpenfion I can understand, Nor will I deny but
the houſe has gone farther than this under the idea of ſuſpenſion
as a puniſhment: as indeed what have they not done! but from
our author's own lift, the word fufpend has not been uſed in
this century, and but once for an hundred years back: and it has
been uſed ofteneft at leaſt, in the other fenfe I have above men--
tioned, merely to fequefter. If the question were now uſed to
occur,
[ 172 ]
Fourthly, the queftion is not whether the houſe of
commons has the fole and exclufive power of examin-
ing
occur, I am apt to think fufpenfion, as a punishment, would be
found not to be a conſtitutional proceeding, or authorized by the
law of uſage of parliament, but rather as an anomalous and un-
neceffary mode of correction, affecting the conſtituents and the
whole kingdom, who are not to be puniſhed by the want or mu-
tilation of parliamentary repreſentation for the fault of an un-
worthy member.
With regard to expulfion, I fhall fay a few words more, be.
cauſe I know there has been an inclination with fome to fhades
of a particular opinion about it. It does to me appear to be too
late now to call in queftion the power of expulfion, fuppofing
there might have lain objections to it at firſt. It is fo rivitted in
practice without contradiction or controul, as to have become
in my opinion, fairly the law and ufage of parliament. For my
own part, I have no objection at all to it; and I fhall have occa.
fion by and by, in explaining the nature and end of expulfion,
to ſay what may probably juſtify the expediency, and neceffity of
the power. I know it has been faid, and not without fome ap-
pearance of plaufibility, that expulfion is a power the houſe of
lords has never excercifed upon any of its members, except in
the caſe of Lord Bacon; though the purity of peerage, being
the higher orb, and of a yet brighter tint, ought at leaſt to be as
refined as that of the commons, feeing it gives not an elective,
but a perpetual voice, not only in the legislature, but in the laſt
refort of all judicature both civil and criminal; where the
peers judge not even upon their oath, but upon their honour,
which is fo facred and delicate, that 'tis ſaid a peer may,
in a caſe of property vote even in his own caufe. The
houfe of lords certainly did by their fentence againſt Lord Chan-
cellor Bacon, deprive him of his feat in the houſe, declaring him
not only unworthy of his office, and of having a place in the
houſe of lords, but alfo incapable of holding any other office or
place, and impriſoning him during the king's pleaſure, which
was of itſelf one way of fequeftring him from parliament. It is
alſo true, that in the cafe of the Earl of Danby in the reign of
Charles II. when the peers, for favouring the kings particular
views, wanted to stop the profecution of the earl by impeach-
ment, they made an offer that he ſhould, among other things, be
made for ever incapable of all offices and employments, and of
fitting in the houfe of peers: But they propofed to do it by bill,
a draught
[ 173 ]
ing and determining the rights and qualifications of
electors and elected, together with the returns of writs
for
a draught of which they produced in a conference with the
commons. The commons however were not fatisfied with fuch
a bill, for which they had their own reaſons. And afterwards,
when the lords fent down to the commons a bill they had paſſed
for the banishment of the earl, it was again offered, to appeaſo
the wrath of the. commons, that Lord Danby fhould be degrad▾
ed from his peerage, as well as baniſhed: but the commous re-
jected the bill and not liſtening to the offer, ordered in a bill of
attainder, the earl having by that time withdrawn himſelf.
This cafe therefore may feem to prove rather the greater pro-
perty, if not the neceffity, of an act of parliament, inſtead of
a judicial fentence of the houſe of lords, for depriving a peer of
a feat in the houfe. But it would alſo ſeem to prove the ſame as
to the other pains and penalties propoſed to be inflicted on the
Earl of Danby: which runs quite counter to the ſentence of
the houſe of lords againſt Lord Bacon, the legality of which is
hardly to be given up; efpecially confidering that the lords.
have pronounced the like fentences upon commoners; particu
larly in the cafe of Sir Giles Monpeffon, whom the houſe of
commons expelled, and referred to the lords for farther puniſh-
ment upon their complaint. In the lateſt cafe of the kind that
has occured, the houſe of peers upon the trial of a noble earl,
who held the fame high office with Lord Bacon, for offences fome.
what of the fame complexion, did not chooſe to follow the exam-
ple of Lord Bacon's fentence as to exclufion of incapacity. For
which no doubt, the houſe had its particular reaſons; but they
might be, and, from the circumſtances, probably were fuch as
bore no relation to any queſtion as to the power excercifed in
Lord Bacon's cafe. The judgment therefore in that laſt caſe is.
no authority either way: And the point muſt remain in its pre-
ſent ſtate of uncertainty till farther cleared up: Which for the
honour of the peerage, it is to be hoped, there never may be an
occafion for. If, having one clear example, we might prefume
to venture an opinion, I must confefs, I think the jurifdiction of
the honfe of Lords implies fo much of the higheſt power that the
rule, majus includit minus, muſt have place. Nor can I fee any
good reaſon why the houſe of peers fhould not have this po-
wer over their own body. There feems en the contrary to be
cogent motives of public juftice, why they fhould have it for this
moſt effential purpoſe, of preferving the fountain of judgment,
in which the ſtate, and all the ſubjects of the kingdom are deeply
intereſted, pure and untainted. At the fame time it may not
be
[ 174 ]
等
​for the election of members, and, in fhort, all matters in-
cidental to fuch elections: the proof of which, as our
author's fecond direct, and indeed his chief pofition,
confumes above half of his performance. For this
propofition alfo is admitted. What the nature and ex-
tent of the jurifdiction and authority.exerciſed by the
houſe of commons in this matter: and what is to be
underſtood by the qualifications of electors and elected,
or is fairly and legally implied in the power of examin-
ing and determining them, will be hereafter more ful-
ly confidered, and has already been, in fome degree,
ſpoken to in the general obfervations permifed.
Fifthly, We do not apprehend it to be any part of
the prefent queftion, whether Mr. Wilkes was juftly or
unjustly, or for what offence he was expelled in the
late feffion of parliament: or, whether for fuch of
fences as Mr. Wilkes has been convicted of, and now
is in execution for, infamous punishments might, or.
as our author ſays, frequently have been inflicted. Nor
whether fuffering an infamous puniſhment, inflicted in
be fo clear that the argument, as to the right or power would
proceed from the houſe of lords to the houſe of commons
becauſe, in whatever fenfe the houſe of commons may be cal-
led or confidered to be a court, they differ widely in this
reſpect from the houfe of Lords; which in the higheſt notion of
the term, is the univerſal ſovereign, and fupreme judicature of
the nation whofe juriſdiction is not confined to its own members
or founded in the particular relation to their body, but extends
over all crders of fubjects, and acts in the regular courfe of le
gal trial. On the other hand the congenialness of the powers of
the two houſes over their own members, merely as a parliamenta.
ry jurifdiction, and the intereft which the conftituents have in
their own reprefentation, that it be pure as well as perfect and
complete might be thought (if we were reduced to reafon upon
principles) to argue for the power of expulfion in the commons
as an original inherent right. But, as things ftand, it must,' I
think, appear that the power of the houſe of commons, in regard
to expulfion, is too firmly fixed by ufage and excercife, now to
need any other fupport, or to be liable to be fhaken: At leaſt it
is fo, if there can be, as doubtlefs there can a jurifdiction acquired
by uſage and preſcription.
}
a courſe
>
A
}
I 175 1
a courfe of law, does infer an incapacity to be elected
a member of parliament. For, on the one hand, Mr.
Wilkes was de facto expelled, and on the other, he has
not, in fact, fuffered, or been condemned to any pun-
iſhment underſtood by the law of this country to infer
infamy. By the bye, I imagine it is the caufe of, and
not the puniſhment itſelf, which infers the infamy.
>
Sixthly, it does not appear to us in the leaft to con-
cern the merits of the real queftion in debate, how and
in what manner, whether with unanimity or divifion,
the vote of the houſe of commons paffed, refolving or
adjudging Mr. Wilkes to be incapable of being elected
a member to ſerve in this prefent parliament, which is
flung out by the writer of the ſerious confiderations,
as a kind of argumentum ad hominem. Of the fame in-
fignificancy is it alſo, that, fuppofing Mr. Wilkes to
have been actually under a legal incapacity or difa-
bility to be choſen, when he was re-elected after the
expulfion,; ſuch re-election might, on that fuppofi-
tion, have legally been adjudged to be void: and up-
on his being a fecond time re-chofen, when another
candidate appeared upon the poll, the votes given to
the perfon ſuppoſed to be diſabled, might be confider-
ed as thrown away, and the candidate having the mi-
nority of votes, adjudged to be duly elected.
પ.
Ach
+
All we have to fay on either of theſe points, is, that
a vote of the houſe of commons, however paffed,
is the act of the houfe, in legal conftruction. And
if the houſe itſelf was thereby concluded as to confe-
quences, ftill more were thoſe who concurred in the
vote adjudging Mr. Wilkes to be incapable, crippled,
as to the after proceedings, upon the fubfequent elec-
tions of the county of Middlefex, as, upon that vote,
what followed effentially and folely depended *. But
fuppofing
* It muſt, however, appear fomewhat odd, that when, under
thefe circumstances, and for thofe reafons, it was determined,
that
[ 176 ]
fuppofing any good objection to lie againſt the adju
dication of incapacity, made by fuch a vote, the dilem-
ma into which the houſe was thereby brought, can
have no real influence upon the adjudication itſelf;
for that muft ftand or fall upon it's own merits.
Seventhly, it is nothing lefs than decifive of the
prefent queftion, that, in fact the houſe of commons
have, by refolutions of theirs, declared particalar per-
fons, or various claffes of men, not eligible as mem-
bers of parliament. For fuch a queftion may arife in
determining the merits of an election; and the houſe,
in exercifing it's legal judicature upon an election, may
have determined a perfon or claſs of perſons, not to
be eligible, ſtrictly according to the known and fub-
fifting law of the land: which is the true criterion by
which to judge of all ſuch determinations, when cited
as authorities and precedents in the queftion now de-
bating. And farther, if there have been determina-
tions in this reſpect not according to the law, or con-
trary to the conſtitution; it will not follow that ſuch
determinations have, of themſelves, made or altered
the law or conftitution, fo as to authorize repetitions of
the like.
Lastly,
that the candidate who had the minority of votes, was duly elect-
ed, and ought to have been returned, becauſe of the incapacity
of the other, duly notified by the very writ of election, iſſued by
order, and in terms preſcribed for the purpoſe by the houſe,—
the returning officer fhould not only not have been cenfured for
making a falſe return, aggravated with an immediate and moſt
manifeft contempt of the houſe itſelf; but that it ſhould have
been allowed, as it cannot be denied it was, by ſome of the war-
meſt ſticklers for altering the return, that the returning officer
had acted according to his duty and his oath. That to a plain
underſtanding would feem to be tantamount to allowing that he
acted according to law; the confequence of which would be,
that the law is at war with the incapacity adjudged by the houfe
of Commons.
1
[ 177 ]
Laftly, The fair difcuffion of the prefent queſtion
is not to be embarraffed with this confequence, that
fuppofing the houſe of commons to do wrong, and to
involve themſelves in a dilemma, or to reject any ex-
pedient within their own power, for extricating them-
felves out of ſuch a dilemma, there is not in any of
thoſe cafes any remedy; becauſe the matter not being
cognizable any where elſe, the determination of the
houſe takes effect by its own force, and is fubject to
no appeal or review. For fuppofing all that to be true,
the fubftantial merits of the cafe do not vary; the con-
ſtitution, tho' ininfringed, is not, ipfo facto, over-
turned. But in reality, the conftitution does know the
remedy, for an improper unconftitutional exercife or
exceſs of a legal conſtitutional power, or for an illegal
affumption of a power unknown to the conftitution, or
deftructive of it, if ſuch inftances do ariſe, vindice digni,
were it otherwiſe the conftitution would not be the
finiſhed thing it is, or fo well deferve, as it really does,
the character beftowed upon the law of England, of
being the perfection of human reaſon.
Having thus ftated what the queſtion is not, and en-
deavoured to deliver it from what might darken or di-
vert from it; let us now try to set up a true guide
poft; when in the
Third place, we ftate what the real queſtion is:
and for preventing all ambiguity explain the terms në-
ceffary to be underſtood for exactly comprehend-
ing it. And
The ſhort and comprehenfive ftate of the queftion
feems to be no other than this-was or was not
Mr. Wilkes, he having been in that feffion of parlia-
ment expelled the houſe, incapable of being elected
a member to ſerve in this preſent parliament? the
words of the refolution are," that Mr. Wilkes was,
and is incapable," and the refolution is, by the order
following
[ 178 ]
รี
following hard at it's heels for a new writ, thus
paraphraſed, "that Mr. Wilkes was adjudged inca-
pable of being elected a member to ferve in this
parliament."
But as our author has chofen to confound incapacity
with difqualification, forfeiture and ineligibility, I in-
cline, before going farther, to fix our terms as clearly
as I can.
An incapacity of being elected, in a latitude of
fignification, or in common parlance, may comprehend
whatever hinders or obftructs from being legally, or
with effect, chofen But to fpeak with precifion, we
ought to diftinguish between want of capacity, and
incapacity, properly fo called, juft as we do between
never having had a thing, and it's being taking from
us. Or in other words, I fhould fay, there are inca-
pacities of defect, and incapacities by privation.
incapacities defective, and incapacities privative.
Thus, as there are natural, fo there are civil capacities,
of which that of being elected a member of parlia-
ment, is one: And we fhall beft underſtand what it is
by inftances of the defect, or want of it. The capa-
city is either ſtrictly radical, and original, or adven
titious and fuperinduced. For example; a woman
wants the original radical capacity of being elected a
a member of parliament; being incapable by fex, of
every ſtate office I know of, except being fovereign
or regent of the realm. A peer, or lord of parlia-
ment, is by his civil capacity, utterly, and in the na-
ture of the thing, incapable of being elected a mem-
ber in the houſe of commons; the one term being ab
folutely exclufive of the other. An infant on the
breaſt, or an ideot, I prefume, are by nature incapa-
ble of being elected; becauſe it is morally, or indeed
rather naturally, impoffible they can be members of
parliament. So in 23 Eliz. a lunatic having been re-
return
· { 179 ]
turned a Burgeſs for Hull, another was chofen on a
fecond writ, and the firſt having claimed his place, or
it having been claimed for him, the commons examin-
ed the caufe, and finding the return of lunacy to be
true, they refuſed him. Theſe are all original and ra-
dical incapacities by defect, or for want of that ſtate
upon which, alone, every other quality or ingredient
neceffary, to a perfect capacity muft operate, and to
which it must adhere, as the natural ground work and
foundation. So we fay, one is deftitute of the capaci-
ty, or he has not a capacity in him.
1
Pofitive law has fuperinduced certain qualifications,
which, by conftitution, are as effential to the capacity
of being elected, with effect, as the original capacity
itſelf. The proteſtant religion is one. A Popiſh recu-
fant is incapable of being chofen. One cannot be
put up as a candidate, who, if preſent, refuſes to ſwear
to the neceffary qualification in land; which in ordi-
nary ſpeech is diftinguiſhed by the appropriated name
of qualification. The oaths to government create
another adventitious qualification: And we fay, the
perfon qualifies himſelf by taking the oaths. But this
goes more properly to the capacity of fitting, than of
being elected: as the oaths are not neceffary to be taken
before election. However, if refuſed in the houſe,
the feat is void as if no return had been made. So a
quaker having been returned a member, he was called
in to the table, and declining, upon being afked, to
take the oaths, though he offered to affirm in terms
thereof, he removed, and the feat was declared void,
perfons alfo having fat without taking the requifite
oaths, have been held to be incapable of being mem-
bers, as if they had not been returned, and confidered
as objects of punishment, as if they had come into the
houfe without being chofen. It was fo adjudged in the
caſe of Sir John Leeds.
VOL. III.
M
An
f
[ 180 ]
An incapacity by privation is nothing elfe, as the
term itſelf plainly enough intimates, than a perfon's
being deprived of the capacity which he had radically
or inherently, and that was rendered perfect by every
other fuper-added requifite qualification. So we fay,
one is incapacitated as by a ftroke of force, or act of
power, whether by himſelf, or by a power external to
him: And this fuppofes the perfon before to have had
the capacity, as one being ftripped or divefted of any
thing, implies the anterior poffeffion of it.
This fort of incapacity is alfo very properly termed a
difability; becauſe the perfon is difabled, i. e. he is
deprived of his natural and former capacity, or right to
be elected: Which can only be done by ſome act of, or
upon the perſon who had the capacity, or upon the ca-
pacity itſelf, or upon the original and radical ſtate and
title, or the fuper-added qualifications which conftitut-
ed the antecedent capacity.
The privation may be abfolute and ridical, going to
the very foundation, being, and exiſtence of the origi-
nal incapacity, in the nature of a perfect annihilation
or extinction: As when a commoner is created a peer,
or a perſon becomes civilly dead by an attainder. Or
the privation may be fub modo qualified and limitted; as
when it does not effect the original radical capacity,
but only touches fome of the extrinfick or adventitious
qualifications. For if the privation reaches the origi-
nal radical ſtate and title, which is moſt of the effence
of the capacity, it is, in it's nature an annihilation or
extinction, whether it does or may operate for ever, or
eventually only for a limited time; in which laft cafe,
the revival is a refurrection, or new beginning of ex-
iftence. Therefore it was, that in one of the general
obfervations, we objected to our author's cobweb dif-
tinction, when he ſays, the right of election is not ta-
ken away, but fufpended, becauſe the incapacity is not
perpetual,
[181]
perpetual, but only temporary, being limited to the
exiſtence of the fubfifting parliament. An attainder
itſelf may operate but a temporary privation. A fuf-
penfion more properly refers to the ceafing of the
adventitious qualifications, which may rife and fall
by accident.
Nothing more is neceffary at prefent for applying
the diftinctions we have made, but to mention that
the incapacity Mr. Wilkes is fuppofed to be under,
is an incapacity by privation inflicted either medi-
ately or immediately, or in both ways, by the act
of the houſe of commons.
}
The general queftion, as ftated before, does there-
fore, if we follow the author of the Caſe, divide it-
felf into theſe two fubordinate branches.
Firſt, Whether Mr. Wilkes was incapacitated by
the expulfion; which feems to be the fenfe of the ad-
judication of the houſe of commons.
Secondly, Whether admitted (as our author ſpeaks)
that expulfion "does not create an incapacity of being"
“ re-elected ;” yet Mr. Wilkes was incapacitated by the
pofterior refolution of the houfe, by virtue of the
power afcribed to the houfe, as expofitors of the law
of the land, to declare who are, and who are not eligi-
ble as members of parliament: Or (as the author elfe-
where expreffes himfelf) to difqualify by their own
refolution.
We proceed therefore, in the
Fourth place, to lay down what we apprehend to be
the principles and grounds upon which the queſtion as
above ſtated, explained and divided, ought to be
tried. And
Firſt. The queftion fo far as it depends upon the
virtue or effect of the expulfion only, which is the firſt
M 2
branch
[ 182 ]
branch of the fub-divifion, muft, I think, be tried on
one or other of theſe grounds.
1
ift. The natural and neceffary import of the term
expulfion; including, as our author fays, by neceffary
confequence, or ex vi termini, fuch an incapacity as is
contended for: To which our author confines the
whole of what he fays upon the point. Or,
2dly. The acquired or adopted fignification, if there
any is, of the term expulfion; fixed by fuch a conftant
practical ufe of the word, in the houſe of commons,
which is the only competent authority, as is fufficient,
by conftruction or exprefs declaration, to expound the
term expulfion, as neceffarily including or referring
incapacity: To which must be referred the precedents,
and authorities, alledged to be of that import by ex-
preſs determinations.
3dly. The conftitution of the houſe of commons,
and the nature and extent of the authority and power
by which the houſe inflicts the puniſhment of expulſi-
on: By which we fhall fee, (if it can thence be
fhewn) either that the power and authority is not
of that fort or ftrength, that fuch an effect as in-
capacity is within its reach: Or, on the other hand,
it may appear, that the power and authority is fuch,
that expulfion not only may, but muft carry that con-
fequence with it, as neceffarily, as a caufe produces
it's effect; unlefs we admit an unnatural maiming of
the expulfive power, or alledge an actual reftraint and
limitation in the act of expulfion, on purpoſe to dimi-
nifh it's effect.
Or laftly, the end and defign, the uſe and purpoſe
of expulfion, from which it will appear, if it can be
made appear, that expulfion does not anſwer it's mani.
feft end, unleſs it includes incapacity: And confe-
quently, the neceffity of it's implying fuch an effect,
will
[183]
will be demonftrated; or it will be fhewn on the other
hand, that it would be as uſeleſs, as unfit and im-
proper that it fhould go fo far.
Again, confidering the queftion as in it's fecond
branch, upon our author's doctrine, that the refo-
lution of the houſe of commons, adjudging a per-
fon incapable, is fufficient of itſelf to diſable or
diſqualify any man from being a member of par-
liament: This muft infaliibly be tried upon the fol-
lowing grounds and principles.
First, The character or capacity in which the houſe
of commons act, when they do and only can make
refolutions or adjudications with regard to incapa-
city: And the nature of the power competent to them
in that character,
Secondly, The fubject matter upon which the
power competent to the houſe in that character
and capacity, operates or is exercifed: And the
bounds within which it is, in this refpect, legally
circumfcribed.
$
Thirdly, The law that governs, and ought to
govern the houſe in the exercife of the power be-
longing to that capacity in which they then act:
Which will involve the confideration of the law of
parliament; what it is, and how far that alone, or
any other ſpecies of law is the rule of their pro-
ceeding in fuch cafes. And,
Fourthly, Which is properly a branch of the laft;
but I chooſe to mention it by itſelf, becauſe of the
importance it will be thought to be of. The prece-
dents of general refolutions and determinations of the
houfe of commons, which have been cited as fufficient
to eſtabliſh a power or authority in the houſe, by their
own refolution fingly, to adjudge perfons to be ineligi
ble, or to diſqualify them to ferve as members of
liament,
M 3
K
par-
The
>
[184]
The method we propofed brings us now in the
Fifth place, to examine the question in both its
branches upon the foregoing grounds and principles,
upon which only, as we have prefumed to fay, it can
be fairly tried. And
ift. Does expulfion, ipfo jure, create an incapacity
of being re-elect in the fame parliament ?
Let us, with our author, try it firft upon the
meaning of the word expulfion. Here it may be
obferved, that our author is miſtaken, when he fays
the word expelled has for more than a century been
conftantly uſed. The inftances quoted by the writer
of the Confiderations prove the mistake.
And as
fince the revolution, about the time of which the
term expel began to be regularly uſed, expulfions have
been lefs frequent than before, and very rare fince
the acceffion; it is not to be much wondered, if
there has not been, in that latter period, much dif.
cuffion on that fubject, fo as to have made a fettled
ſtandard for the fignification of the word, by the autho-
rity of cafes in parliament.
Another obfervation to be premiſed is, that though
our author has given us a variety of fynonymous
expreffions uſed in older times, fuch as, fevered, cut
off, removed, difcharged, put out; he has over-
looked others full as frequently made uſe of, viz, diſ-
abled, incapable, unworthy, and unfit to be a mem-
ber, or of the like import. Qur author had a reaſon
for omitting theſe phrafes: And the reafon will
hereafter appear. I only mention this now, becauſe
the writer of the Confiderations has endeavoured
to raiſe a particular argument upon the word difable,
ufed in antient expulfions; infufing into it an em-
phatical fignification, which, I fhall preſently ſhow,
the inaccuracy of old faſhionable clerks and journal-
writers,
[185]
A
writers, knew nothing of, when they and the parlia-
ment men of thoſe times uſed the word.
The poſition afferted by the author of the cafe, is,
that," however various the cauſes of expulfion may
"have been, the effect of it is conftantly the fame.
"For the neceffary confequence of expulfion, (he ſays,)
"is,
is, that the perfon expelled, fhall be incapable of
being elected again to ferve in the fame houſe of
commons that expelled him. This incapacity
"is implied in the very meaning of the word itſelf."
His argument or proof, is no other than this:
"Should (fays he,) any man of plain fenfe, nay,
"ſhould any young academician, or fchool-boy, even,
"be aſked what was understood by expelling a man
"from any fociety, they would certainly anſwer, the
"meaning is, that he fhall never be a member of
"that club, or of that college, or of that fchool,
66 any more."
This is literally a childish argument, and a ſchool-
boy is too good to anſwer it. Would not any child
almoſt wonder, if upon being put out of a room by
his parent for miſbehaviour, it was told by another
perfon, that it could never be fuffered to go into the
fame room again, as long as its parent lived? Is
any ſchool-boy fo ignorant as not to know, that though
a fcholar expelled cannot belong to the fchool till
he is again admitted, yet he may be restored? Or
was one never re-admitted into a club, a college, or
a ſchool, from which he had been expelled?
A member of parliament expelled, is cut off and
fevered from the parliament. His relation to it is
diffolved. But why may it not revive in the fame
way it was created at firft? The inafter of a ſchool,
governors of a college, or a club, have the power
of admiffion, and thereby of conftituting the relation
of the members. The houfe of commons have not
M 4
the
[ 186 ].
}
the
I
power of creating a member. That the electors
only have; and by their election the relation is created
at first, or revived after it has ceafed or been dif-
folved.
But fays our author, "expulfion clearly, ex vi ter-
mini, fignifies a total, and not a partial exclufion
" from the ſociety, or parliament, from whence hẹ
" is removed."-Moft certainly. The expulfion
diffolves the relation as much as if it never had ex-
ifted. But it is not like the diffolution of marriage
by death or divorce: For the relation may be re-
ftored in the regular way of conftituting it, whatever
that is.
It is true what our author adds, That "when a
" member is expelled, he is not excluded from the
"meeting of that day, or of that feffion, but from
"that parliament: that is, from that body of which
"he is a member." And he cannot be excluded
from any parliament, but that of which he is a mem-
ber, because from no other can he be expelled, hav-
ing a relation to none elfe. But he may again be-
come a member, and return to have the fame rela-
tion: For one turned out upon a void election, or a
falfe return, inftantly ceafes to be a member as much -
as if he never had been returned, being fubftantially,
though not by the fame form of expreffion, ejected:
Yet he may be re-chofen and will then be a member as
before.
It is not therefore the being put out or excluded,
which is the real vis termini of expulfion, that hinders
one from being brought back again and entering a
freſh by the fame door at which he came out. The
natural meaning of the word is too weak a bar for
ever to fhut it againſt him.
The next enquiry therefore is,
Secondly,
+
[ 187 }
Secondly, If there be an acquired or adopted fig-
nification of the term expulfion, fixed by a conftant
practical uſe of the word in the houſe of commons,
or any expreſs precedents by judgments of the houſe,
of fufficient authority to afcertain that in the fenfe
and ufage of parliament, expulfion neceffarily includes
and infers incapacity.
(6
The author of the cafe has left this upon the nega.
tive evidence of the fact, "of there never having
"been any attempt made to re-elect one in the fame
"parliament, out of the very many who have been
expelled, except in the fingle inftance of Robert
"Walpole, Efq. when the houſe declared the effect
"of their vote of expulfion" and, (fays our au
thor,)" there cannot be a ftronger inftance, that,
"in the general fenfe of mankind, fuch incapacity
"is the neceffary effect of expulfion."
But fuppofing the fact ſtood precifely as ftated by
our author, which it does not, as will hereafter ap-
pear: And ſuppoſing that Sir Robert Walpole's cafe
had alſo been a filent one, added to the negative num-
ber, the propoſition is by no means proved by ſuch
fort of evidence. For till the queftion occurs, which
it can only do upon a re-election, it cannot be tried;
and until it is tried and determined, it remains at beft
a moot point. The negative evidence arifing from
no re-election, after expulfion, does not prove that
incapacity was the cauſe of there not being a re-elec-
tion, no more that fifty decrees not appealed from,
will prove that an appeal does not lie from the court
which pronounced them. Nay, it does not prove
that the expulfion was the reafon of the perfon's not
being re-elected; becauſe elections depend fo entirely
upon the will of the electors, and the means and mo-
tives thereof are fo various, that any election proves
nothing but the predilection of the electors in favour
of
[ 188 ]
#
of the perfon actually chofen. If a perſon whofe feat
is vacated by accepting of an office which does not
difqualify him, is not re-elected, it does not prove
that it was becauſe of his accepting the place, and not
on account of his own inclination to retire, that ano-
ther is chofen in his ſtead.
But granting it were certain that the expulfion was
the cauſe why the electors did not again chooſe the
perfon expelled, it could only prove that the electors
agreed in opinion with the houſe of commons, that
he was not fit to fit in parliament. And it might ne-
vertheleſs be true, that if they had differed in opinion
with the houſe upon that point, they would again have
elected their old member, notwithſtanding the ex-
pulfion. For electors may fo far difagree with the
houſe, as even to think the very caufe of expulfion a
meritorious ground for re-electing the perfon ex-
pelled.
On the other hand one fingle inftance of a re-elec-
tion after expulfion, is better proof that it has not
been the general ſenſe of mankind that incapacity is
the neceffary effect of expulfion, than an hundred in-
ſtances of perfons expelled and not re-elected, are
that it is. For fuch a fingle inftance neceffarily brings
the queſtion into judgment, being an expreſs declara-
tion of the fenfe of the electors, and their appeal to
the houſe itſelf for a decifion. If therefore it can be
fhown that a perfon re-elected after expulfion did fit,
it is inconteftible evidence, and of decifive authority,
that it was not the fenfe of parliament, that expul-
fion created an incapacity. It is a pofitive proof of
the negative, and the only one the nature of the thing
admits of.
Now upon this head ſeveral inftances have been re-
ferred to of perfons expelled, and re-elected, and fitt
ing in the fame parliament.
Sir
[189]
Sir Robert Sayer, expelled 20th Jan. 1689, has
been mentioned as one that was re-elected. But as it
appears the parliament was immediately diffolved, ſo
that no queſtion would be tried upon his re-election,
this caſe does not come up to a full authority. It is
no proof however, as has been faid, that he was not
re-elected, that the return is not found in the crown-
office, where more of the old returns are miffing al-
moſt than are extant.
But the anſwer that has been made in the Confidera-
tions, p. 25, to the cafes of Mr. Holborne, and Sir
William Pennyman, who were both expelled on the
11th Auguſt 1642, by no means takes off the force
of thofe cafes. It is admitted that both the names
appear again upon the Journals in the fame parlia-
ment, one in 1643, the other in 1645. But, fays
the writer of the Confiderations, "though the names
66 are the fame, it is far from being clear, that theſe
"latter were the fame gentlemen that were expelled
" in 1642; and as a proof of this (ſays he,) it appears
" from the Journal of the 11th Auguft, that they
were not only expelled, but at the fame time de-
"clared difable to fit any longer as members during
"that parliament."
<c
This will not do. No better proof can, in the
nature of the thing, be produced, of an identity of
perfons at fuch a diftance of time, than the fame
names appearing recently in the fame place, and in
the fame ſtation. And fuch a bare poffibility as that,
of two inftances, of two names, applying of two dif-
ferent perfons, under fuch circumftances, amounts
almoſt to an abfolute impoffibility.
As to the argument from thofe gentlemen being,
by the act of expulfion, diſabled to fit any longer
as members during that parliament, it only makes
the cafes the ſtronger in point; becaufe their fitting
in
[190].
*
in ſpite of fuch a declaration of difability, is the
ſtrongeſt judgment of its inefficacy. It fhall however
be fhown by and by, that thefe words difabled
to fit any longer as members during that parliament,
were the very periphrafis often uſed for expel, as appears
from many inftances quoted by the writer of the Con-
fiderations himſelf: And that they were not always
intended as an exprefs difability fuperadded to the fen-
tence of expulfion.
?
The fecond entry cited from the journal of 22d
Jan. 1643, relating to Mr. Holborne," that he be
diſcharged and difabled for fitting any longer as
"a member of this houfe during this parliament;"
only farther and ſtill more directly proves, that not-
withſtanding a former expulfion inflicted by. fentence
in the fame words, he actually had been re-elected
and did fit in the fame parliament.
As to the other anfwer made by the writer of the
Confiderations, that thefe two gentlemen "had been
"perhaps re-capacitated by ſubſequent vote, as it
<6
appears the houſe exerciſed this power at this time
"in ſeveral other inftances;" it is fufficient to reply
that there can be no arguing where a perhaps is the
only evidence founded upon. It is true, the houſe
did affume at that time a power of re-capacitating,
as well as of diſabling. But that power was ſtill more
abfurd then the other, if paffible, ſeeing as judges they
had no power over their own fentence after it was
paffed: And their affuming it, is but an additinal proof
how little regard was paid to law in their proceedings.
And if it poves any thing more it is, that the houfe
would not ſtand a trial upon an incapacity, inflicted
only by their rofolutions, when actually called in
queftion by a re-election in the teeth thereof. Befides
it is unconceivable how a vote of a houſe of commons.
re-capacitating a perfon whom they before had expel-
led
7
[191]
led and diſabled, could again make him a member,
unless he was re-elected.
The cafe of Mr. Woolafton, expelled 20th Feb.
1698, is unanſwerable; and is only ftrengthened by
the diftinctions and evafions with which it is attemp-
ted to be anſwered both by the author of the cafe
and the writer of the Confiderations. The facts are
undeniable. Mr. Woolafton was expelled. That is
the expreſs word of the fentence. He was immedi-
ately re-elected, and fat. The author of the cafe
would fain blunt the edge of this authority, by ſub-
ftituting for expulfion, the Weſtminſter-hall term of
amotion; and by telling us, the houſe ſomewhat inac-
curately uſed the word expel: And both he and the
writer of the Confiderations dwell upon the cauſe of
the expulfion; that it was not for a crime, but for
being concerned as a collector of duties, contrary to
an act of parliament: Which being but a temporary
diſqualification, and removed before his re-election,
the houſe could never mean, that the effect of their
vote fhould be permanent. He was only (fay they)
removed to carry the law into execution.
66
But with theſe gentlemen's favour, neither they nor
I have a right to argue away a clear fact by a fuppofed
intention; Or (to uſe the words of the writer of the
Confiderations, when anfwering the argument of ano-
ther on Sir Robert Walpole's cafe, he heedlefsly re-
plies to himſelf in this) "there is a fallacy in that
argument which draws confequences from the act
"of any court, which are directly oppofite to, and
"contradict the words of that court, in pronouncing
"the judgment." The exprefs word of the judg-
ment in Mr. Woolafton's cafe is expel: And that
word, according to the gentleman's argument, ei-
ther implies incapacity in every inftance, or it does
not in any Becaufe being a neceffary effect, it muſt
always
[192]
}
always and uniformly be the fame. But that it does
not imply it in Mr. Woolaftan's cafe, thefe writers
themſelves labour to prove: And one inftance to the
contrary is as good as a thouſand, to ſhow it is not
neceffarily included in any other: Which at once
makes an end of their neceffary implication.
At the fame time when the writer of the Confidera-
tions argues from the temporary nature of the cauſe
of Mr. Woolafton's expulfion, to exclude the effect
of imcapacity, as neceffarily belonging to it, he ſhould
alſo recollect, that he himſelf produces as one of the in-
ftances for proving that expulfion implies incapacity,
the cafe of Sir John Leeds expelled 10, Feb. 1620,
for having fat without taking the oaths required; and
expelled for that reafon, although he was, as the
journals fhow, willing then to take the oaths. From
which it is evident, that if the cauſe of expulfion,
and not the expulfion itſelf, is the ground for inca-
picity, the inftance of Sir John Leeds, was as impro-
per an inftance for proving that expulfion implied
incapacity, as argument on Mr. Woolafton's cafe is
unfit to prove that his expulfion was not attended with
incapacity. It is therefore a general principle, and
not pretended fpecialties in a cafe, that muft decide
upon the effect of expulfion as neceffarily implying
incapacity.
Parliamentary authorities have alſo been referred
to on the other fide, for proving that a perfon ex-
pelled is not eligible to come into the fame houſe of
commons. The author of the caſe has no incumbered
his argument for incapacity as implied in expulfi-
on, with authorities of this fort. But his co-adju-
tor, the writer of the Confiderations, has given us
from his dog ear'd journals, a long lift of what he
calls the precedents and the exprefs declarations of the
law on this head, by the houſe of commons, from
time to time.
Theſe
ན
[ 193 ]
Theſe writers, however as before hinted, do not
feem to have been perfectly agreed in their ideas
upon this part of the ſubject. The author of the
cafe, in giving us the "various terms in which the
" fentence of expulfion was expreffed before the par-
"liamentary ftile had acquired that accuracy, which
<< it has fince attained"-confines himſelf to thofe
before mentioned of-fervered and cut off-removed-
diſcharged-put out-Which, he fays, are only fo
many fynonymous expreffions fignifying expulfion:
And as his argument is, that incapacity is neceffa-
rily implied in expulfion, however expreffed, he
avoids mentioning inftances where particular words
were uſed more directly expreffive of an incapacity,
or feeming to fuperadd it to expulfion.
The writer of the Confiderations, on the other
hand, fpeaking in his own ſtyle, applies the term
expel to all the cafes he cites, whatever particular
words were uſed in them; although the word ex-
pel hardly began to come in ufe till about the time
when his lift, exclufive of Sir Robert Walpole's
cafe, ends. And he, nevertheleſs, chooſes inftances
in which terms not expreffive of incapacity or difa-
bility have been uſed; fuch as incapable-diſabled,
&c. becauſe his purpoſe is to fhow from precedents
and expreís declarations of the houſe, that perfons
expelled were not eligible.
To this end, he has taken hold particulaly of the
word difable, which came very often in his way in
the precedents he refers to; and has given the term
a new coat, cut out of the precifion of modern lan-
guage. Difable, as we have diftinctly ſhown, con-
ftantly in correct ſpeech, fignifies the fame as inca-
pacitate: And therefore, this writer, in fhaping his
Confiderations, has impreffed into the fervice the
word as found in old inaccurate journals; and will
have
[ 194 ]
1
have it to exprefs fuch an incapacity as he is con
tending for; or to an active term inflicting diſability
by a ſentence.
It may, however, be firft obferved, that theſe two
different plans of the argument in the cafe, and in
the Confiderations, cut one another. For if, accor-
ding to the author of the cafe, all the different terms,
in which expulfion has been variouſly expreffed, are
fynonymous, and incapacity always the neceffary effect
of it, however expreffed, then thofe cafes cited by the
writer of the Confiderations, in which words more
directly expreffive of incapacity and diſability are uſed,
being interpreted by this general rule, fall to have no
particular import or energy afcribed to them.
On the other hand, the writer of the Cofiderations,
we underſtand a particular effect to lie in the terms
ufed in the cafes cited by him, it muſt follow, that
where terms of that import are not uſed, the proof of
the doctrine, that incapacity is neceffarily implied in
all expulfions, fails, or is Confiderably weakened. Per-
haps too, from comparing the inftances in which the
more fimple words, cut off, remove, difcharge, &c.
mentioned by the author of the cafe, are uſed, with
thoſe inſtances cited in the Confiderations, in which the
terms more emphatical of diſability are found, it may
appear, that the whole are only one continued proof
of the antient inaccuracy in the parliamentary ftyle;
and that the deverfity of expreffions is too weak a
foundation to build upon it precedents of authority,
or not ſtrong enough to be conftrued into expreſs de-
clarations of the law, by the houſe of commons.
It ought alfo to be attended to, that the writer of
the Confiderations, has not given the exact words of
the journals, in citing the cafes founded upon by him;
although it would feem from the manner of the refe-
rences, that he had done fo. And 'tis apprehended
nothing
[ 195 ]
nothing more than fairly tranfcribing the words of the
journals, will be neceffary to anſwer fome part of the
arguments he has grounded on the cafes, of which he
has given an account.
But, more particularly to confider the lift of cafes
cited by the writer of the Confiderations; there are
fourteen, beſides Sir Robert Walpole's: And in two
of them, (I now fpeak from the journals themſelves,
not from the account given in the Confiderations) viz.
No. 13, Mr. Sackville, and No. 14, Sir Robert Cann,
the word uſed is expel. Theſe cafes, therefore, ex-
plain nothing, but must be expounded by fome others.
The manner, however, in which thefe two cafes are
reported in the Confiderations, makes it neceffary to
give the true ſtate of them.
FC
In Mr. Sackville's cafe, expelled March 25, 1679,
this writer has added to the journals from another
book, and inſtead of tranfcribing them, he tells us
"it appears from Grey's debates, on the queſtion, to
"addrefs the king to remove Sackville from all his
" employments; that no man had an idea that he
"could by law be returned back upon them again.
Serjeant Maynard fays, put him into fuch a condi-
tion, that Oates and Bedlow my have remedy againſt
"him, and that is by expelling him the houſe.
"Short time for remedy, (fays the writer of the
"Confiderations) if the borough of Eaft-Grinstead,
"for which Mr. Sackville then ferved, and which
"I believe, was pretty much at his command, could
"have returned him again a member of parliament
"in eight and forty hours."
It is enough to obſerve upon this, that the journals,
and not Mr. Gray's debates, are the authority: And
from the ſentence of the houfe, and not from Mr.
Serjeant Maynard's fpeech, is the fenfe of parliament
to be gathered. But Gray's debates mifplace any thing
VOL. III.
N
that
.
1
[ 196 ]
f
that was faid upon expulfion, or the effect of it,
when they place it in a debate upon the queftion for
an addrefs to remove from employments after the ex-
pulfion was voted. And it feems if Mr. Serjeant
Maynard thought Mr. Sackville's employments pro-
tected him from the remedy, which he wiſhed Oates
and Bedlow to have. All in the journals, is "order-
"ed, that Mr. Edward Sackville be expelled this
"houſe."
*
"Rofolved, that an humble addrefs be made to
his majefty-for removing Mr. Edward Sackville,
"from all public employments and trufts."
journals therefore are no foundation for the comment
in the Confiderations.
The
Sir Robert Cann's cafe, (expelled October 28,
1680) the writer of the Confiderations furely relates
from fome orher book than the journals; for he has
not given us one word that is there. He puts this
ſentence into the mouth of the ſpeaker, as delivered
by him in pronouncing judgment:-" That you be
"committed to the tower, and you are actually cut
"off from being a member of this houfe, and you
"
are no more to be a member of parliament." The
words in the journals, after an addrefs committing
Sir Robert to the tower, are" ordered that Sir
"Robert Cann be expelled this houſe.'
"
"And then he was brought to the bar of the
"houfe, and upon his knees received the judgment
of the houfe for his expulfion from this houſe,
and commitment to the tower." But the writer of
the Confiderations had an emphafis to lay on the
words, and you are no more tò be a member of par-
liament, therefore he makes a journal of his own to
introduce them.
In two more of the cafes, we find the words, un-
worthy, and not fit.
}
Sir
[ 197 ]
1
Sir Edmund Sawyer's cafe is one, marked No. 3,
in the Cofiderations, He was expelled June 21,
1628, and in the journals the cafe ftands thus. "Upon
<6
66
This is the fen-
queftion, Sir Edward Sawyer, for this offence to
"the houſe-to be committed to the tower, and
to be turned out of the houſe, and a new writ to
"iffue for a choice in his place."
tence of expulfion,-then follows,
"mitted to the tower during the
"houfe. 3dly, the houfe declareth him to be un-
worthy ever to fit as a member of this houſe.”
66
“
2dly, to be com-
pleaſure of the
This laft article, which is clearly no part of the
fentence of expulfion, that fuper-added thereto; fo
far as regards the word unworthy, is merely fynony-
mous with the word unfit, which is found in other
cafes, where it ſhall be confidered. In as far as the ar-
ticle imports a declaration of perpetual exclufion from
the houſe, it belongs to a particular clafs of the cafes
under which the obfervation proper to be made upon
it, will be met with.
The cafes of four monopolifts (No. 4, in the Con-
fiderations) expelled Jan. 21, 1640, are thus expref-
fed in the journals, Refolved upon the queftion,
"that Mr. William Sandys-is not fit, nor ought to fit
"as a member of the houſe this parliament, and that a
"warrant iffue forth-for a new writ, for electing of
"another to ferve-in his ftead."
"Refolved,―That Mr. Jo. Jacob,-ought not to
"fit as a member of the houſe this parliament, and
"that a warrant iffue forth for a new writ, for elect-
ing of another to ferve-in his ftead this parlia-
66
66
ment.
"Refoved, That Mr. Thomas Webb, ought not
"to fit in this houfe, and that a warrant iffue forth
"for a new writ for electing of another to ferve in
his ftead this parliament."
N 2
"Refolved,
[ 198 ]
}
"Refolved,―That Mr. Edmund Windham―ought
"not to fit as a member in this houfe this parlia-
"ment, and that a warrant iffue forth for a new writ,
"for electing another burgefs to ferve in his ftead
"this parliament.”
The words uſed in theſe four inftances amount, at
the higheſt, to no more than an expulfion or exclu-
fion from the then prefent parliament, which pro-
nounced the judgment; and for the true meaning and
import of that, we must refer to a general obfervation
to be preſently fubmitted.
There remains then ten of the fourteen cafes, in
all of which, the words, incapable or difabled, or
both, are introduced in one manner or another: And
it is material to have the caſes before us, in their own
words, as they ftand in the journals; for a good deal
depends upon an accurate attention to the precife form
of expreffion.
In Mr. Hall's cafe, (No. 1, in the Confiderations)
expelled Feb. 14, 1580; after different refolutions
for fine, impriſonment, &c. the fentence of expulfion
is in the journals thus-" Refolved, That the faid
"Mr. Hall fhould preſently be fevered and cut off
"from being a member of this houfe any more,
"during the continuance of this preſent parliament,
"and that Mr. Speaker-fhould direct his warrant——
"for a writ-for a new burgefs, in the lieu and ſtead
"of the faid Aurthur Hall, ſo as before diſabled to
"be any longer a member of this houfe."
The cafe of Sir John Leeds, (in No. 2, of the
Confiderations) expelled Feb. 10, 1620, cannot at
all be underſtood from the Confiderations. In the
journals it is not very intelligible, but it is as follows.
-"Refolved, Sir John Leeds, incapable of being
Member of this houſe, as if never returned.”
Upon
[ 199 ]
Upon theſe words, and thefe only, refts the expul-
fion. Then proceeds the journals.
"Mr. Crew, for Sir John Leeds-No queſtion
"but he is incapable." "2. He is to be puniſhed."
"Mr. Hackwyll-to have him removed; a writ
for a new choice, and to punish him by fending
"him to the tower.
"Sir John Moore-to have no queftion made
"but where it is queftioned."
"Mr. Secretary-The fault great, efpecially becauſe
"of laft parliament. To order he fhall be diſcharged
"now, and to ferve no more this parliament.
"Sir John Leeds brought to the bar, confeffed,
" he was of the houſe laſt meeting in parliament;
"and that he hath fat in this parliament in the houſe,
hath not taken the oaths.”
"Mr. Thomas Fanfhaw-that he muſt be punish-
"ed, as one that hath come into the houſe, not
"being chofen.
"Sir Edward Sandes-to pay the ferjeant his fees,
"and no farther puniſhment, becaufe but negligence,
"no prefumption; and is willing to take the oath."
"Mr. Chidliegh-to have an order to difable him
"for this parliament.' . A warrant for a new writ
❝ in his room."
Mr. Taylor's cafe (No. 5, in the Confiderations)
expelled May 27, 1641, is thus:
"Refolved-That Mr. Willam Taylor fhall be
"expelled this houfe, be made incapable of ever
"being a member of this houfe, and fhall be forth-
"with committed a prifoner to the tower, &c."
"He was called to the bar, and there kneeling,
"Mr. fpeaker pronounced fentence against him
"accordingly."
N 3
"Ordered
£ 200 1
'
"Ordered that Mr. fpeaker fhall iffue forth his
"warrant for electing of a burgefs to ferve in the
"ſtead of Mr. William Taylor, formerly returned
"to ferve-and fince by fentence of the houfe,
"expelled the houſe."
Mr. Benfom's cafe (No. 6, in the Confiderations)
expelled, Nov. 2, 1641, is thus entered on the
journals.
"Rofolved, that Mr. H. Benſon, is unworthy and
"unfit to be a member of this houfe; and fhall fit
"no longer as a member of this houfe."
"Refolved, Mr. Benſon fhall be forthwith fent
"for as a delinquent."
"Refolved-That Mr. fpeaker fhall iffue forth
"his warrant for electing of another burgeſs, to
"ferve in his ftead."
"Refolved-That the houfe holds Mr. Benfon unfit
" and uncapable ever to fit in parliament, or to
"be a member of this houſe hereafter."
-
Sir Edward Deering's cafe, (No. 7, in the Con-
fiderations) expelled Feb. 2, 1641.
After a refolution that the book, the writing of
which was Sir Edward's offence, being a a collec-
tion of his own fpeeches in matters of religion, was
againſt the honour and priviledge of the houfe, and
* fcandalous to the houſe; and ordering it to be burnt
by the hands of the hangman: It is
65
Refolved, That Sir Edward Deering fhall be
" diſabled to fit as a member of this houſe, during
"this parliament."-And farther,
"Rofolved, That Mr. fpeaker fhall iffue forth
his warrant-for a new writ for the election of a
"C
kight
[201]
"kinght, to ferve for the county of Kent, in the
"room of Sir Edward Deering, thus difabled."
And after a reſolution for committing him to the
tower, &c. the journals inform us, he was brought
to the bar, and Mr. fpeaker pronounced the fentence
againſt him and his book accordingly.
Mr. Trelawney's cafe, (No. g, in the Confidera-
tions) expelled March 9, 1641, is thus:
"Refolved, that Mr. Trelawney fhall be forth-
"with put out of the houſe, and diſabled for fitting
as a member of this houfe, during this parlia-
"ment."
み
​}
"Mr. Trelawney was called down to the bar, and
"Mr. ſpeaker pronounced the fentence againſt him
"accordingly."
"Refolved, That Mr. fpeaker fhall iffue his war-
"rant-for a new writ, for electing another burgefs
"to ferve-in the ftead of Mr. Robert Trelawney,
"formerly chofen a burgeſs, and fince difabled by
"the vote of this houfe."
The cafe of Mr. Long and Mr. Hook, (No. 92'
in the Confiderations) expelled May 12, 1642, is
as follows:
"Refolved, That Mr. Long and Mr. Hook are
66 not fit to fit any longer in the houſe as members of
"parliament,"
"Reſolved, That Mr. fpeaker fhall fend his war-
"rant-for the iffuing of a writ for electing of other
66
burgeffes to ferve-in the ftead of Mr. Long and
"Mr. Hook, fo difabled as aforefaid.”、
Serjeant Hyde's cafe, (No. 10, in the Confide-
rations) expelled Auguft 4, 1642, is thus:
N 4
"Reſolved,
2
[202]
}
R
"Refolved, That Serjeant Hyde fhall be difabled
"to ferve any longer in this parliament, as a mem-
σ ber of this houfe."
N. B. Vide for the warrant for a new writ after
the next cafe, as under.
Sir R. Hopton and Mr. Thomas Smith's cafe,
(No. 11, in the Confiderations) expelled Auguſt 5,
1642, is thus:
"Refolved,―That Sir Ralph Hopton fhall be
"difabled to fit as a member of this houfe during
"this parliamemt."
"Refolved, That Mr. Thomas Smith fhali be
"difabled to fit as member of this houfe during
"this parliament.
"Reſolved, That new writs fhall be fent for new
"elections of burgeffes-in the place and ftead of
"Sir Ralph Hopton, and Mr. Thomas Smith, and
"Mr. Serjeant Hyde, difabled, by judgment of this
"houſe, to fit any longer as members of this par-
"liament."
Sir Thomas Strickland's cafe, (No. 12, in the
Confiderations) expelled March 6, 1676, is parti-
cular, and is indiftinctly reported in the Confidera-
tions.
"Mr. fpeaker acquainted the houſe, that he had
"writ to Sir Thomas Strickland, informing him,
"that the record of his conviction of recufancy, had
been read in the houſe, and that the houſe had
"given him that notice, that he might offer what
"he could, why a writ fhould not iffue for elect-
"ing a member to ferve in his place-"
Sir Thomas's anfwer was produced and read,
"Upon rhe debate of which matter, Refolved, That
"whereas it doth appear to this houſe, that Sir Tho-
mas
[ 203 ]
mas Strickland, a member of this houfe is con-
"victed of Popish recufancy, that he be from hence-
"forth difabled from being any longer a member of
"this houſe."
"Ordered, That Mr. fpeaker do iffue out his
"warrant, to make out a new writ for the electing
"of a knight of the fhire, to ferve in this parliament
"-in the room of the faid Sir Thomas Strickland."
..
Upon this cafe of Sir Thomas Strickland, the
writer of the Confiderations, makes this very par-
ticular obfervation," that the difabling of him,
was not done by virtue of any act of parliament
"then in force, for the firſt law (fays he) which
"paffed difabling Papifts from fitting in either houſe
"of parliament, was not made 'till 1678, 30 Charles
"II." One could not have expected any thing fò
very unguarded from a writer of conftitutional know-
ledge. Does the gentleman not know that Popish
recufant convict, incurs a præmunire by the ſtatute of
Elizabeth; that is, he is out of the king's protection,
forfeits his lands and goods, and to be imprifoned
during the king's pleaſure. If that is not a legal
diſability, I know not what is.
in 1678, referred to, and others of that fort, which
introduce teſts of the Proteftant religon, exclude Pa-
pifts; but recufants convict, are more then diſabled,
they are puniſhable with the higheſt pains.
The act of parliament
We have given the cafes fairly and at full length,
that it may from themſelves appear how far the ob-
fervations we have to offer upon them, are well
founded or not; And we hope the words ufed in
the different cafes, will have made fuch an impref-
fion upon the careful and attentive reader, that he
may be ready to meet, or rather have anticipated
what we are to fay.
In
[ 204 ]
!
In the first place, upon reviewing the cafes, it is
impoffible not to perceive a manifeft inaccuracy of
expreffion, and an incorrectnefs in the application of
it, which runs through all, and is remarkable in al-
moſt every one of them: Much more than fuffi-
cient to justify the charge of this fort, the author
of the Cafe himſelf would not avoid making:
And, among fuch a variety of words, not only in
the immaterial parts, but where the terms might, and
are ſuppoſed to have been, of fome particularly fig-
nificant import, it cannot be but the diverſity was
in a very great degree owing to the inattention, and
probably have proceeded from the whim and caprice
of thoſe whofe diction they were.
It therefore well deferves to be premiſed, as a gene-
ral remark, that it must always be very dangerous to
build doctrine upon looſe, indigeſted, ill-conceived,
and ill-adapted expreffions; efpecially when fuch doc-
trine was not the thing in view, to be confidered efta-
bliſhed.
Now in all thoſe cafes, expulfion was the object; and
the effect of expulfion was not the thing in contempla-
tion, No queftion could arife upon incapacity as the
effect of expulfion, but on a re-election of the perfon
expelled: And of fuch cafes, Sir Robert Walpole's,
and the prefent, are the only two that have occured:
Which makes the one as a precedent, and the other as
a confirmation, of infinite importance. All the other
cafes if duly weighed, can be of no moment to the
point now in debate, which was, never once ſtirred, or
made a queſtion of in any of them.
Indeed, in the nature of things, cafes merely of ex-
pulfion (and fuch are all the old cafes) can furniſh no
precedents, nor with any propriety be produced as ex-
prefs declarations of the law, as to the neceffary or im-
plied
[ 205 ]
plied effect of expulfion. That belongs to quite ano-
ther caufe: unleſs there can be precedents by decifions
where there was no queftion or determinations with-
out a caufe, which is abfurd. Such cafes, much more
mere words of phrafeology found in them, are not even
fo good as extrajudicial opininions: And theſe are on-
ly incompetent in matters of legal trial, but of all
others are the most dangerous and deftructive method
of foreſtalling juſtice.
To refort therefore to fo unavailable authorities on
the preſent occafion, is only to prove that the point
is yet new and entire, unleſs ſo far as prejudicated by
Sir Robert Walpole's cafe, and confequently that it
ought to be judged upon its own ftrength and true
principles; Sir Robert Walpole's cafe, being allowed
its juft weight as a fingle precedent, or an ambiguous
and diſputed authority.
2dly. Although expulfion was the object of all thofe
cafes, and the thing to which, in a natural courfe of
proceeding they ought to have been confined, both in
form and in fubftance; yet, as it cannot eſcape ob-
ſervation that there are words in the cafes which on
their proper fignification exprefs or import diſabi-
lity and incapacity, the confideration of theſe muft not
be avoided: And they prefent themſelves under diffe-
rent views.
Ift. As conftituting the act of expulfion or as coup-
led with it in the fentence; which we ſhall poftpone for
a moment to join it with its proper yoke-fellow.
2dly. As fuper-additions to the expulfion; import-
ing or feeming to import a direct infliction of incapa-
city: Which we must refer to the other branch of the
queſtion; under which incapacity by refolution is to
be confidered.
3dly. Where the incapacity is by the words reftrain-
ed to that prefent parliament by which the expuifion is
rane
[ 206 ]
pronounced: Which we ſhall confider together with
the firſt mentioned. And
Lastly, incapacity by the words, made perpetual and
for ever to exclude from future parliaments.
To diſpatch this laft of perpetual incapacity firſt
forlorn and abandoned as it is, even by the advocates
for incapacity, who cannot help admitting that in the
better opinion, this is not to be effected by lefs than an
act of parliament; we have nothing to do but to con-
fign it to that perpetual oblivion and profcription to
which its own illegality has doomed it: or rather, ſhould
I fay, to point it out to public view as a proof of that
grafping incident to all power which the author of the
cafe animadverts upon in the houſe of lords for invading
the jurifdiction of the commons; and as an evidence
that the houſe of commons itſelf has, in one cafe at
leaſt, often done what it could neither lawfully do, nor
make lawful by doing it often.
Let this monument therefore of excefs, inſtead of
being blotted out of the books which is its own defert,
for ever ſtand as a monitor to hedge in the way of par-
liament itſelf, and a perpetual beacon to warn even the
wiſdom of the nation, not to commit their authority
by exceeding their power.
The only other proper ufe to be made of it upon
this occafion, is to prove, what it undeniably does,
that the cafes from the journals fo much relied upon in
this queſtion, are no better an authority to eſtabliſh it
as the law of Parliament, that any incapacity is the ef-
fect of expulfion, than they are, that a perpetual inca-
pacity follows it, or may, by the power of the houſe
of commons, be annexed to it. The cafes therefore
are in reality no authority at all upon the point, but
muft, as an argument which proves too much, be allow-
ed to prove nothing. For it is impoffible to fay, that
the fame refolutions of the houfe of commons, fhall be
a better authority for the ſhorter, than they are for the
longer incapacity; if the whole refts only upon the au-
[ 207 ]
thority of the reſolution: and if it does not, the cafes
are out of the queſtion, and principles muſt decide it.
To return, however, to the firft and third of the
views under which the cafes preſent to us words im-
porting, or leeming to import, diſability and incapacity,
namely, as conftituting the act of expulfion, or coup-
led with it in the fentence, and reſtrained by the words
themſelves to that parliament by which the expulfion
is pronounced; the following obfervations occur there-
upon.
Firſt, to recur to what was before hinted, one of
two things must be admitted. Either all expulfions
are of the fame effect, however expreffed; which is
contended indeed both by the author of the caſe, and
the writer of the confiderations: And if ſo, there can
be no ſpecific virtue in any words of diſability and in-
capacity found in the cafes. Or there is a virtue and
emphatical fignification in thoſe words; and then there
muſt be degrees in the effect of expulfions: which, if
acceeded to, we cannot ftir a ſtep in this ground with-
out impeaching the doctrine of neceffary implication of
incapacity in all expulfions.
This other corollary alfo follows; that the degree of
effect in the expulfion, muft ftand upon each particular
cafe; and the ſpecial penning of the fentence be the
meaſure of reſtraining or extending the confequences.
But leaving the gentlemen to folve this dilemma to
their own fatisfaction, we have juſtice to render to the
cafes themſelves. And
In the next place, it is obvious, that in the cafes of
moſt importance to this branch of the argument, the
very act of expulfion, and its whole effence, is confti-
tuted folely by thofe very words which are expreffive
of, or feem to import difability and incapacity. Thus
the only fentence of expulfion pronounced upon Sir
Edward
[208]
Edward Deering, Serjeant Hyde, Sir Ralph Hopton,
Mr. Thomas Smith, and Sir Thomas Strickland, is in
thefe words-fhall be difabled to ferve any longer in
this parliament as a member of this houfe; or fhall be
diſabled to fit as a member of this houſe during this par-
liament, or, that he be difabled from being any longer a
member of this houfe. And in Mr. Trelawney's cafe,
which is of an older date the fentence is the fame, on-
ly a little longer-fhall be forthwith put out of the
houſe, and diſabled from fitting as a member of this
houſe during this parliament.
The obfervation ftrikes at firft view, that in thefe
cafes the word difabled, however inaccurately, was
uſed merely as the word expel is now; only, that be-
ing itſelf not ſuch a fubftantive term, it required to
have other words added to it, to compleat the fenfe-
fuch as, to ferve any longer, or to fit-or, from being
any longer a member, &c. it does not appear to have
been fo much as defigned or intended to convey any
emphatical fignification, or to imprefs an active vir-
tue of incapacity, otherwiſe than as it may be faid,
as it now is, of the word expel, that it included inca-
pacity.
And having before us. fuch apparent proofs of the
inaccuracy of parliamentary ftile in thofe times, it
were in vain to attempt accounting for the improper
uſe of words, or to torture them into, or out of, par-
ticular fignifications. The viſible inaccuracy itſelf,
is a fair folution, and none other need be fought af-`
ter. Nor is the improper ufe of the word difable, pe- .
culiar to the antient journals in the cafe of expulfions
only. It was the term uſed to exprefs the declining
of the chair, the neceffity of which cuftom has, down
to this day, impofed as a law of modefty upon the per-
fon chofen to the office of ſpeaker. It is faid, " ftand-
ing in his place he difabled himſelf to undergo the
66
"weighty
[ 209 ]
"weighty charge-and that being denied he prayed
"leave to difable himſelf to the king-and he did
❝ diſable himſelf to the king, &c"
Multiplying words would but darken our ideas on
this head. A plain common reader comparing the
caſes, muſt at once fee, that of old, diſabled to fit
any
longer as a member of this houſe, was perfectly ſy-
nonymous with the modern expreffion, "be expelled
"this houſe;" by which the perfon effectually and
inftantly ceaſes to be a member, and becomes unable,
or has no right to fit any longer in the houſe:
What else could it mean in the caſe of Sir Thomas
Strickland, who was diſabled upon a conviction of
Popish recufancy? If the conviction, which was the
cauſe of the diſability, had been legally removed, as
undoubtedly it was capable of being; can it be faid
he could not have been again chofen a member of
parliament? Yet the words cannot have a different
fignification in his cafe, or in any one of the other
cafes, for they are perfectly the fame even to a tittle
of grammar.
This is yet more evident, if poffible, from the uſe
of the word diſabled, as introduced into fome of the
cafes, merely as a relative, to fignify what, in a for-
mer part, had been expreffed in different, but fy-
nonymous words; as the very notion of a relative
implies.
Thus the fentence againft Mr. Hall, is expreffed
by the words fevered and cut off from being a mem-
ber; and the writ is ordered to be iffued inftead of
Mr. Hall, fo as before difabled. Very probably the
origin of this word difable in the actual fentence of
expulfion in after times, was its having been uſed fo
far back as that very antient cafe of Mr. Hall's in
the way of a relative, as fynonymous with fevering
and
[ 210 ]
}
and cutting off, by which the expulfion was then ex-
preffed.
In the cafe of Mr. Long and Mr. Hook, the fen-
tence is; that they are not fit to fit any longer in the
houſe; and the writs go, (juft as in Mr. Hall's cafe,)
* inſtead of Mr. Long and Mr. Hook fo difabled as
"aforefaid;" though in the fentences of expulfion,
the word difable is not ufed. In thofe cafes the form
of words uſed in iffuing the writ, is exactly the fame
as in the cafes of Sir Edward Deering, Mr. Trelaw-
ney, Serjeant Hyde, Sir Ralph Hopton, and Mr.
Smith; where the fentence itſelf is expreffed by the
word difabled.
This fhows the fynonymy there was underſtood to
be in all the different expreffions uſed, in the fentences
of expulfion, and clearly evinces, that there was no
particular emphaſis or effect intended by the word dif-
abled; but that it was, however inaccurately accord-
ing to the modern precifion of terms, ufed merely to
exprefs expulfion or exclufion from the houſe.
Nothing more than the fame obfervation is necef-
fary upon the word incapable, ufed in fome of the
cafes. Thus Mr. Taylor's fentence is, that he fhall
be expelled this houfe, be made incapable of ever be-
ing a member of this houfe: Where, were it not for
the quality of perpetual, expreffed by the word ever,
there could be no doubt, but the word incapable was
uſed merely as an expletive, and explanatory of ex-
pelled. And that, notwithstanding the word ever,
there was no perpetuity of incapacity here meant, we
fhall fee from another obfervation to be preſently
made.
The intention of the word incapable, is farther il-
luftrated by the cafe of Sir John Leeds, which the
writer of the Confiderations has fingled out as the
ground
1
[ 211 ]
{
A
$
ground of a particular obfervation. The only fentence
of expulfion againft Sir John is in theſe words-
"Reſolved, Sir Jo. Leeds incapable of being a mem-
"ber of this houſe, as if never returned," which is
ſo very inaccurate, as not to be grammar. His fault
was, not taking the oath required: And though that
certainly rendered him incapable of fitting, and might,
notwithſtanding his offer then to take the oath, and
that as one of the members faid, his not having done
it before was negligence, not prefumption, provoke
the houſe to punish him by an expulfion for having
prefumed to fit without qualifying; yet furely the in-
capacity was not indelible: Nor could it, in its own
nature, extend to affect his future eligibility. Indeed
the ſentence itſelf reftrains the incapacity, to his be-
ing a member of the houſe; that is, one would think,
only to his continuing to fit; and not improperly
puts it on the fame footing, as if he had never been
returned.
According to the Judaical interpretation of words
now infifted upon, it having been refolved, that Sir
John was incapable of being a member, it might be
conſtrued to mean that he was incapable of ever being
a member of the houſe. But without fuch a con-
ftruction, ftill he was expelled, for he was put out of
the houſe, whatever form of words was uſed to do it:
Therefore if expulfion included incapacity, he was as
incapable for that parliament as any other expelled
member could be; although his incapacity, like Mr.
Woolafton's, was fo very temporary, and fo far from
being permanent.
If Sir John Leeds's expulfion inferred incapacity, it
will indeed demonftrate the malignant effect of any
kind of expulfion, and prove the danger of tampering
with effects by implication. But it will be impoffible
upon the fame principles, to fave Mr. Woolafton's cafe
VOL. III.
Q
from
[212]
from the effect, notwithstanding all the laboured dif
tinctions of temporary and permanent difqualifica-
tions. For the venemous word expel, was uſed in
Mr. Woolafton's cafe, however inaccurately, as is
now faid; and it is only the word incapable that is in
the fentence againſt Sir John Leeds; which, indeed,
was as efficacious as diſable in the old times.
}
The writer of the Confiderations makes a particular
ufe of fome things mentioned in the journals to have
dropt from members in the debate upon this caſe of
Sir John Leeds; the particulars of which are taken
down according to the faſhion of making up journals
in thoſe days, now happily aboliſhed, to the comfort
of all members of parliament. He quotes the words
of Mr. Secretary, "order he fhall be diſcharged now,
" and to ſerve no more." And Mr. Chidley's mo-
tion, for an order to difable him for this parlia-
"ment." Then, (fays this writer,)" the houſe did
"not come into this propofition, but only ordered a
« new writ to be iffued. But this debate (adds he)
fhows what fenfe the principal members entertained
rc
at that time of the power of the houſe, with re-
fpect to the difabling their members during the
fubfifting parliament."
It is not to anſwer this notion of the power of the
houfe to diſable by refolution, that I have given theſe
words of the Confiderations a place here. We ſhall
meet with that doctrine in its proper place to which
we have reſerved what is to be faid upon it. But I
have made the citation for the fake of an obfervation
proper to the prefent argument, and to 'fhow that the
writer of the Confiderations, miftook the caſe of Sir
John Leeds, as he has done others of thofe quoted by
him, when he laid hold of the words of the Secretary
and Mr. Chidley, as a proof of the emphatical figni-
fication of the term diſable.
In
[ 213 ]
*
In this view it was, I took the trouble to give a
full extract of Sir John Leeds's cafe with the others,
instead of the mutilated edition exhibited in the Con-
fiderations. And from this cafe particularly it does,
I think, appear, (quite in oppofition to this writer's
opinion of it,) that difabling for this parliament, was
merely a mode of expreffing, a fimple expulfion at
that time of day. In this fenfe clearly Mr. Chidley
ufed the words. For it is evident from the full ſtate
of the cafe, that the debate among the members was,
whether or not Sir John Leeds fhould be put out of
the houfe, or fhould be diſcharged then and to ferve
no more that parliament, which was Mr. Secretary's
motion-Or, as Mr. Chidley expreffed it, fhould be
diſabled for that parliament: or if he fhould be al-
lowed, on taking the oath, to continue in his feat,
and be no farther puniſhed than by paying his fees to
the ferjeant; which was what Sir Edward Sandys pro-
pofed, who mentioned as an excuſe for Sir John, that
it was negligence, and not prefumption, he had been
guilty of.
It is a mistake to fay that the houſe did not come
into the motion made by the Secretary or Mr. Chidley,
for Sir John Leeds actually fuffered all they intended.
He was put out of the houſe, which was all that dif
abling him, or diſcharging him then to ferve no more
in that parliament meant: and fo the very next words
entered in the journal, after thofe that fell from Mr.
Chidley, are "a new writ in his room;" that being
the laconic ftile of the day.
This is explained by looking back to the refolution,
that Sir John was incapable of being a member as if
never returned. And though it may appear ftrange,
that after a ſentence of expulfion, which the above
reſolution was, and the only thing there was for it,
there should be fuch a debate and fuch motions as
O 2
the
[214]
r
1
the Secretary and Mr. Chidley made. The fact how-
ever is, it is that the entries in the journals ftand fo:
neither are the motions made by Mr. Secretary and
Mr. Chidley the only ones that are miſplaced, for Mr.
Hackwell's and Mr. Crew's fpeeches to the fame pur-
pofe are entered after the refolution that Sir John was
incapable. The motion by Sir John's own friend, that
he ſhould be no farther punished than by paying his
fees, is alfo placed after the refolution of the houſe
by which Sir John was put out of it. Nay, it is after
the refolution is recorded, that Sir John Leeds, the
culprit, is introduced as brought to the bar, and mak-
ing confeffion of the fact upon which the fentence is
grounded.
:
The folution of the whole, lies in the extreme in-
accuracy of the journals. But the effence of the cafe
confifts in this, and there the journal is clear, that
there was a refolution that Sir John was incapable of
being a member, as if never returned; and that upon
that refolution only the order for a new writ pro-
ceeded juſt as in fome other of the cafes, the like
order proceeds upon a refolution, that the perfon is
unworthy and unfit to be a member of the houſe, and
fhall fit no longer, &c. If the refolution had been
in the other words, to diſcharge him, or to difable
hit, &c. the effect had been the fame and in no de- -
gree different, as we fee from the other cafes in which
fuch words were uſed.
If there is any weight in what has been faid upon
the words expreffive of incapacity or difability, little
need be added upon thofe which are urged as fignify-
ing the extent or endurance of the alledged incapacity
making it to be for the fubfifting parliament. For
thefe words are clearly neceffary, as has been obferved,
to compleat the fenfe of the terms difable, &c. fo as
altogether to compofe an expulfion or exclufion :
and
[ 215 ]
and if there is no emphafis in the main terms, the
expletive words cannot infuſe it.
There is one thing farther to be obſerved on thi
matter, and it will go far to explain the true mean-
ing of thoſe antient fentences of expulfion. The au-
thor of the Cafe has himſelf paved the way for the
obſervation we are going to make. He mentions the
diſtinction in former times between a fufpenfion and an
expulfion. This ferves to unravel all the words of
difability and endurance. For it ſeems to be pretty
plain that both forts of expreffions were ufed only to
diſtinguiſh an expulfion or abfolute amputation from a
temporary fufpenfion. So when the perfon was to be
expelled, the form ufed was-that he be fevered and
cut off-diſcharged-removed-or difabled from being
a member-or that he fhall be no longer a member of
the houſe this parliament, which really amounted to
no more, in the ftile of thofe times, than-that he is
not ſuſpended for a time, but is expelled or excluded
from being a member of the parliament.
The fame obfervation applies to thofe other words.
by which fome of the fentences of expulfion are ex-
preffed-That one is unworthy or unfit to be a mem-
ber of this houfe, or of this parliament. Perhaps it
would not be ſtretching too far to fay, that the words
ſtrictly expreffive even of a perpetuity, had no other
meaning than to diſtinguiſh from a fufpenfion. For it
is hard to conceive that any houfe of commons could
ever entertain an idea, fo confeffedly beyond their
power, as that of preſcribing to future parliaments,
or binding them by the impofition of a perpetual inca-
pacity.
This very confideration inclines me to make no
great account of the declarations of incapacity fuper-
added by ſeparate refolutions, in fome of the cafes, to
the actual fentence of expulfion; upon which an ar-
Q 3
gument
1
216]
gument is now built as to the ſenſe of parliament of
their power to diſable. Thefe fort of refolutions are
at beſt but opinions, not judicial fentences of the
houſe, but rather in the way of direction to the elec-
tors and to them may be applied the words of Sir
Edward Coke as to the objection of non refiancy to the
election of a knight of a fhire, in the cafe of Sir
Thomas. Bowman, 9th Feb. 1620.-" The law," fays
he, "diſtinguiſheth matters in ftatutes directory and
"conclufory. Direction but matter of order which
"maketh nothing void: matter of fubftance only
"doth it. Scarce any well chofen, if matter of or-
"der fhall overthrow it. Hands and feals of all
"electors fhould be put to their indentures, which
"never done." If it could be thus argued upon a
ftatute, which is law; how much more is it applicable
to a directory opinion of the houſe of commons which
is not law.
1
Thus I have offered what accurred to me as a
fair expoſition and argument upon thoſe old cafes
which have been cited as precedents for the force
of the term expulfion. Every one will judge for him-
felf upon the cafes. For my part, I am very free
to confefs, that if thoſe cafes were ten times ftronger
than I can diſcover them to be, they would not carry
away my judgment upon fuch a point as that now in
debate. My reafons are two.
ift. The whole cafes are fuch a maſs of inaccu-
racy, and not being ex profeffo upon the point now
agitated, which could only be tried in. a courſe of
judicial proceeding upon the re-election of a perſon
expelled, and pretended to be thereby difabled: That
I cannot confent to fet up fuch cafes as a ſtandard
of the conſtitution, much lefs to fet them up to pull it
down. Cafes in 1641 and 1642, which moſt of thoſe
cited are in the parliament that totally fubverted
the
[ 217 ]
<
the conftitution, to me are not cafes of great au-
thority.
The journals fhow that on the very day and date
of fome of thofe cafes, the king and parliament were
engaged in fome of their fiereceft contefts. Sir Ed-
ward Deering was expelled for publiſhing his own
ſpeeches in parliament, on the day that the houſe
petitioned the king to put the Tower of London,
the forts, and the whole militia of the kingdom
into hands recommended by parliament. The con-
ſtitution was not then entire. The very cauſe of
fome of the expulfions was the conduct of the mem-
bers in the diſputes with the king.
The writer of the Confierations himſelf ftops fhort
in his liſt becauſe he admits" it may not be thought
"fair to look into thofe times for precedents of
"the conftitutional powers of any branch of the
legiflature." And he only answers the objection
by appealing to the revered names of Pym, Hamden,
Holles, and Glyn, who were the leading members
of the houſe of commons at the time of the cafes
cited by him.
<C
I honour thoſe patriots as much as any man can
do: And for conftitutional principles I refort with
pleaſure to ſome of the parliamentary remonftrances,
in which they took fuch a fhare. But in things that
touched perfons, I am jealous of the heat of the
times; for the fame reafon that I look with a watchful
eye upon the meaſures actually purfued with regard
to the king: Some of which indifputably, though
perhaps neceffarily, invaded the acknowledged prero-
gative of the crown. That,
That, diveſting the king of
the martial power, was one.
And the petition for
it, voted that very day Sir Edward Deeering was
expelled, was prefented by Mr. Pym.
04
Theſe
[ 218 ]
}
Thefe great men were warmed; no wonder! And
the falient acts of men into which paffion and party
will enter, are not like their deliberate degeſted
works, in which they pledged themſelves to the
preſent and the future ages. Not to mention that
the 'writer of the Confiderations cannot affure us
what part Mr. Pym, Mr. Hamden and thoſe other
conſtitutional patriots, with whofe authority he would
fanctify all the difabling expulfions, did or did not
take in them: or whether it was their opinion that
prevailed, and not that of a more violent, and lefs
enlightened majority, to which they were obliged
to fubmit.
Over and above all this, there is another reafon,
which I hope will never yield to any thing. Pre-
cedents I can ſubmit to, that explain, not that de-
ftroy the law. To fuch, even I do not object, as
by force of time have made or added to the law in
matters arbitrary and indefferent, or where there is
no law. But precedents that ftrive with the fun-
damentals of the conftitution, which is the only pil-
lar that can fuftain the law itſelf; be the time or the
number of fuch precedents what they may-Thefe
I truſt ſhall never ſhake the ftately farick of this
auguft conftitution, or loofen the leaft pin of the
facred building. And in that light do I fee every
precedent that invades the common right of the ſubject;
in which all Englishmen have a natural inheritance,
the deſcent of which, I hope, no time, nor any
power, ever will be able to cut off from pofterity,
for whom, as well as for us, our anceſtors redeemed
it with their blood.
The only cafe cited that remains untouched is that
of Sir Robert Walpole, which merited a place by it-
felf. The refolution againſt Sir Robert, the author
of the cafe has quoted in a most unfair manner:
And
[ 219 ]
ช
And a worfe fign there cannot be of a writers
writers argu-
ment then his being afraid to look full in the face the
beſt authority on his own fide. He leaves out one
half of the accumulated grounds upon which the
houſe of commons refolved that Mr. Walpole was
incapable of being elected. His reafon was, that ex-
pulfion alone might appear to be the caufe: Where-
as, even that houfe of commons took to their aid,
the pretended corruption and breach of public truft,
which for ought we know, might be the ground of
incap city moſt relied upon. For there is fome reaſon
to ſay that breach of truft, by mere operation of law,
difables from holding a place of truft, as perjury,
in the nature of the thing, and by the operation of
law, neceffarily infers inteftability. The very penning
of the ſentence againſt Sir Robert gives countenance
to this conitruction of it.
The writers on the other fide labour hard to find
a reaſon why, if Mr. Walpole was, by law, inca-
pable, Mr. Taylor was not declared duly elected,
as Mr. Lutterel has been on the fame ground. They
tell us the equity of the houſe of commons would
not fuffer them to take advantage of the ftrict rule
of law, ignorantia juris non excufat.
This I both underſtand and aprove. But how
could there be an ignorance of a law, which, if we
give credit to the writer of the confiderations, and
weight to his lift of fourteen precedents, and expreſs
declarations of the law on this head by the houſe of
commons from time to time, was fo univerfally known
a hundred years before? The fingle refolution in
Mr. Walpole's cafe, or that in the Middleſex election
added, could not better notify this law of incapacity than
a train of precedents and exprefs declarations down
from 1580, where the writer of the Confiderations
begins his lift. And if theſe manifold precedents
and
I [ 220 ]
>
and exprefs declarations had not notified it, it only
could be becauſe they were confidered to be no
precedents at all. With what reafon then, are they pro-
duced as preedents at this day? If, notwithstanding
fuch a multitude of exprefs declarations, the law re-
ally was not known at the time of Sir Robert Wal-
pole's cafe, where was the law itſelf at that time?
For promulgation is effential to all law, and a law
not promulged, is the fame as a law not made.
The truth is, Sir Robert Walpole's cafe firſt pro-
duced this law of expulfion-incapacity, and like the
daughter of jupiter's brain, it was borne at full ſtature
and in compleat 'armour, fit for immediate execution,
more a goddeſs of war than of wisdom. But refemb-
ling the falfe diety in her celibacy too, not having
been married to the conftitution, it could have no
legitimate offspring, though fuch another occafion
was very fit to bring forth a fecond brat of the fame
fpurious breed.
The thing then is reduced to this, that in fpite
of all the old precedents, now fo much infifted up-
on, it was the refolution against Sir Robert Wal-
pole, which both made and promulged this law; and
upon that cafe alone, did it ftand before the late
determination.
I muſt therefore beg pardon to treat that precedent
as I think it deferves. It is a fingle precedent, and,
I believe, in point of law a fingle, precedent is of
no great authority. 'Tis the precedent of times I
am not much in fancy with; of a houſe of commons
led by a tory Miniftry, the enemies of the houſe of
Hanover, to whofe malice and wicked defigns againſt
the liberties of this country, Sir Robert Walpole was,
on account of his oppofite attachments, facrificed; that
the revolution-fettlement of the crown which thoſe
traiterous enemies of their country were meditating
to
1
[ 221 ]
to overthrow, might not have the fupport he, as an
able whig member of parliament, was capable of
giving it. Such a precedent. it is a fhame even to
mention in the days of a prince of the houſe of
Brunſwick. It were hardly more prepofterous to
produce a decifion of the ftar-chamber, as an authority
in queſtion of liberty. The votes of the houſe of
commons, by which in the days of the perverfions
of the queens' reign, the beſt friends of the Proteftant
fucceffion were procribed as enemies to their country,
might with equal reafon be held up to George the III.
as an object of admiration, or a fit pattern to imitate.
But this cafe of Sir Robert Walpole's has been
fo much under difcuffion, I will not enlarge farther
upon it. If the grounds of the cafe do not fatisfy,
the precedents will go for little. It is not one or two
precedents, even in good times, without principles,
far lefs precedents contrary to principles, that will
make law, notwithſtanding what the author of the
cafe afferts. But one determination in a very bad
time, as the end of the queen's reign, and the de-
cline of her glory was; and moft efpecially, an ad-
judication of a corrupted, difaffected majority of a
houſe of commons, devoted to a jacobite adminiftra-
toin, and poiſoned with notions of arbitrary power;
an adjudication oppoſed to first principles, and de-
ſtruſtive of our prime rights, which are to be read
and learned by the moft illiterate fubject, in the great,
though unwritten code of the conftitution;-one fuch
determination, I fay will not be fufficient to make a
law in defeazance of the firmeſt eſtabliſhments, and to
rob the ſubject of his most valuable priviledges.
Which naturally enough leads to the confideration
of the
Third ground, upon which we propoſed to try the
firſt branch of the queftion-namely, "the conftitu-
❝ tion
[222]
❝tion of the houſe of commons and the nature and
"extent of the authority and power by which the
"houfe inflicts the punishment of expulfion:" by
which we ſhall fee (if it can thence be shown) either
that the power and authority is not of that fort or
ftrength, that fuch an effect as incapacity is within
its reach: Or, on the other hand it may appear, that
the power and authority as fuch, that expulfion not
only may, but must carry that confequence with it,
as neceffarily as a caufe produces its effect; unleſs
wè admit an unnatural maiming of the expulfivé power,
or alledge an actual reſtraint and limitation in the
act of expulfion on purpoſe to diminish its effect.
Now, not to enter into idle fpeculations, or vain
enquiries as to the origin or antient ſtate of the demo-
cratical branch of the legislature; it is fully fuffici-
ent for our preſent purpoſe to ſay, the houſe of com-
mons is founded in, and owes its being to the confti-
tution: A term we all underftand, and a thing which
was not made all at once, but is the production of the
progreffive improvement of time; by which res pub-
lica, fi femel ceperit bene, progreditur tanquam circulus
femper proficiens. It is the life and foul of the, ftate,
the fpring of goverment, the meaſure of ſubjection,
the law of power and of liberty: And itſelf exiſts,
like the hidden ſubſtance of matter which is no other-
wife known than by its vifible powers and properties.
Upon this foundation ftands the houſe of com-
mons, which, at this day, may be defined to be-
the affembly of the reprefentives of the people, cho-
fen by thoſe ſeparate and diſtinct claffes or orders
of fubjects, who, by the conftitution, are indepen-
dently of each other, inveſted with the right of elec-
tion; for a limited or uncertain time to be a part
of the great council of the nation, for the purpoſe of
maintaining and defending the aggregate ftock of na-
tional
[ 223 ]
}
1
tional liberty, and to exerciſe that ſhare of the total
power
of the whole body politick, or great corpora-
tion of the kingdom, which conftitutionally belongs
to the people whom they reprefent.
From this definition it will follow, ift. That the
houſe of commons, not being felf-created, but made
by the conſtitution; and being only reprefentatives
chofen by the people, it cannot make its own power,
becauſe it did not make itfelf: Nor can it have power
to deſtroy that power from which it is derived, and
by the exiſtence of which alone, it can ſubſiſt in its
natural and conftitutional ſtate.
2dly. That its power being derivative, it muſt be
juft fo much, and no more, than is, and can, by the
conftitution, be delegated and derived from the con-
ftituents.
3dly. That being chofen by diftinct and ſeparate
claffes and orders of fubjects, who, independenty of
each other, have the right of election; each member,
when duly elected, and legally poffeffed of his feat
which he derives folely from his conftituents, is, in
ſtrictnefs, and according to his true character and pri-
mary quality, independent as to his reprefentative-
capacity, of every other reprefentative, and of the
whole together: And cannot from any original prin-
ciple or quality of his reprefentative-character be de-
prived of it by, or accountable for the exerciſe of the
powers it inveſts him with, to the body of the repre-
fentatives*
4thly. The houfe of commons being chofen only
to be a part of the great council of the nation, and
* I have worded this as cautiously and precifely as I could;
being aware of the power of expulfion, of which below: And
the legal doctrine of which, I conceive, will not in the leaſt in-
terfere with any thing here faid, if rightly underſtood.
to
[224]
to exerciſe that ſhare of the total power of the body
politic, which conftitutionally belongs to the people,
whom they reprefent; it muſt neceffarily follow that
they cannot, by themfeves, do, what it only belongs
to the whole council of the nation to do, and for
which no leſs power is adequate or competent.
5thly. Being chofen to maintain and defend the
aggregate flock of national liberty, and, particularly,
to maintain and defend the rights and privileges of
thoſe thy reprefent; it cannot but follow, that they
ought not, and, if their inftitution is the rule of
their power, they will not hurt or invade either *,
6thly. And lastly, the end of their inſtitution and
election must, in the nature of the thing, imply every
incident and collateral power neceffary to that end:
But fo always (which is a diſtinction infeparable from
the nature of collateral and incident powers in re
ſpect of the power in chief,) as fuch incident and col-
lateral power be, in its nature, and in the execiſe of
it, fubordinate to, and compatible with the inſtitution,
and with the ſecurity of the foverign and indiſpen-
fible rights thereof, and of thoſe rights on which it
depends, or to which it bears relation, as well as
with the great ends for which the inftitution itſelf
fubfifts +.
* For them to deſtroy the rights they are chofen to maintain
and defend, is murder under truft, and may not improperly be
called treafon againſt their constituents and themſelves, and high
treafon against the conftitution.
† The houſe muſt have a power to adjourn as well as to fit;
to form rules for the order of their proceedings; to compel the
members to attend and do their duty; and to preferve decency
and purity in the affembly. In short, it must have the power of
ſelf government, and all authority neceffary thereto; And, we
not only admit, but maintain as strongly as any one can, that the
houſe has, and ought to have, the fole power of trying and de-
termining who are, and who are not duly chofen according to
the law of the land to be members of the houſe.
Theſe
[225]
Theſe principles (and we think it would not be
too much to call them axioms) will, we are perfua-
ded, ſo ſpeak for themſelves, as to make the appli-
cation of them to the prefent queſtion eaſy. But the
importance of the matter will apologize for not treat-
ing it too fuperficially.
If then the reprefentative-right and capacity of a
member of the houfe of commons, is, in its proper nature
and primary quality, fo very independent of the houſe,
not only as to the origin, but the enjoyment and
exerciſe of the right; a power of expulfion in the
houſe, which is fo contrary to a right of that na-
ture and fo little homogenial with the houſe not
having any ſhare in the conftitution of itſelf, muſt
be very adventitious indeed; and muft fubfift for
a very particular purpoſe: And therefore it muft, "of
neceffity, be as limited and reftrained in its effects
as it is poffible for it to be; in order to preſerve ſome
cofiftency with the proper nature of the right on
which it operates, and with the original want of power
over it in the houſe.
This is a propofition of meridian clearnefs. If not
felf-evident, it is fo much founded on every notion
that can be entertained of the different kinds of rights;
fo confonant to plain reaſon, and indeed obvious to
common fenfe, that the mind in its natural ſtate of
aptitude to difcern and receive truth, cannot refuſe
to affent to it: For to conteſt it is nothing elſe than
to deny the natural difference of things.
The nature of the right alfo manifeftly fhows, that
the power of expulſion can be founded upon no prin-
ciple whatever but that of the felf government inci-
dent to that of the houſe commons. And if the
power of expulfion were yet in a ftate of formation,
perhaps
[226]
perhaps much might be faid upon principles in the
way of objection to it, becauſe of the nature of the
reprefentative-right. Nor are there wanting, (as we
hinted very early) thofe who are not yet perfectly
reconciled to it. But time which effects many things
above the power of principle, has, we think eſtabli-
ſhed the expulfive power: And in not a few cafes
this even is a fufficient anfwer to doubts, non omnium
quæ a majoribus ratio reddi poteft.
We must not, however, forget the fource of this
right expulfion. It grows but out of a collateral
and very fubordinate power, and at the beſt is rather
a heterogeneous limb even of that. But admiting
it to be now fully eſtabliſhed, as we do, the other
principles which exift in the abfolute perfect and
primordial nature of the repreſentative-right, and are
effential to the conftitution of the houſe itſelf, and
confequently are of the firft and higheſt confidera-
tions; theſe interpofe with their checks and limita-
tions, which as naturally fpring out of them, as
water flows from its fountain.
The inftant, therefore, that expulfion trenches upon
any of thoſe other principles, it enters a foreign ter-
ritory, and muft walk fuitably to the ground it
treads upon. For fo far as it goes there, it looſes
the likeneſs of the principle of which only it can
be begotten.
The genuine offspring of a power, ſo ſubordinate,
and fo controlled and bounded by the very nature
of the right affected by it, muft bear the image of
the father fo ftrongly as to demonftrate the family
it belongs to: And the origin for ever will be an
infallible criterion, by which to judge of the true
nature and juſt extent of whatever is afcribed to it.
Any act or effect in exertion of, or proceeding from
fuch a power, but manifeftly exceeding all natural
bounds,
- [227]
}
bounds at once baftardizes itſelf, betrays its own
pretenfions, and proclaims its fpurious birth. Simple
expulfion may, and that is all can be faid, it may
be the child of fuch a power; it does but barely
confift with it. But expulfion to incapacitate, which
not only crops the flower of the reprefentative-right,
but cuts up its very root, both in the electors and
elected, ſo tranfends that power of generation to which
its being is attributed, that it must be of a higher
extraction, and claim a different pedigree.
Juft only to ſkin the principles we have laid down;
-The conftitution of parliament is the fovereign law
of its nature, and paramount to every other thing
that can be called the law of parliament. It is a
law not made by, but, in fome degree at leaſt, be-
yond the legiſlative power. As the laws of nature
impreffed by the great author of the univerfe upon the
works of his own hand, regulate the powers and
motions of material bodies; fo the frame and make of
parliament, is the fupreme law of its being and ef-
fence, and muſt govern its power.
That fupreme law has excluded from the houſe
of commons the power of legiſlation. They are (to
uſe their own words in the vindication of their ex-
cluſive jurifdiction, as to elections prefented to the
difputatious James)-They are " but part of a body
"as to make new laws." Is, or is not then, incapacity
the creature of a law? The gentlemen admit it re-
quires an act of parliament to make a perpetual inca-
pacity. But they fay it's within the power of the
houſe of commons to make one, to laſt as long as the
fame houſe of commons* does. The houſe of com-
mons then can make a law but only of a fhort endu-
rance. Plain ſenſe cannot well comprehend fuch a
flicing either of law or of legiſlative power.
P
VQL. III.
We
[ 228 ]
}
We aſk the other fide, who drew this line? Or in
what law, code, or conftitution, written or unwritten,
is it to be ſeen or read? Does it lie in the breaft of
the houſe of commons,-an ens rationis which exifts
in fpeculation? Or is it a fort of legiſlation which
hovers in the clouds, and bolts out like lightning
for the uſe of particular occafions? The queftions
puzzle. Their juftice gets into the air; and after the
manner of an apoftolick vifion, we hear unſpeakable
words, fomething, I know not what, of a magic power
of the fubfifting parliament, of which this limited
expulfive incapacity is the efflatus.
We know that all the powers of one houfe of com-
mons must end with the parliament, becauſe a dead
parliament can have no activity: And there is but
one poffible inftance of its coming to life again. There
are too, fome of the powers of the houſe of commons
which live and die with the feffion. But there feems
to be no logic in this confequence, that becauſe the
powers of the houſe of commons muſt have an end,
therefore, while they laft, it may do any thing or do
what it was never made to do.
If our principle were, that the houſe of commons
did not make the parliament, which is a perpetual
fucceffion of independent houfes of commons, and
therefore that it cannot make an incapacity for a future
parliament, it might be the fhadow of an anfwer,
though fallacious, to fay-it may nevertheless, with
the power it has, make one for its own time. But
our principle is that the houſe of commons cannot
make its own power, becauſe it did not make itſelf,
and no fuch power is given or delegated to it, as can
create any incapacity, becauſe incapacity requires a law
to produce it.
If the houſe of commons were it's own electors;
were it αυτοχειροτονειτος, created by its own fuffrages,
they
[229]
A
they might as eafily make an incapacity as inflict
an expulfion, and needed but to infufe the one into
the other to make the effect follow by a cafual
neceffity. But the thing denied. is the exiſtence of
the power to make an incapacity; and therefore it
is no difmembring of the expulfive power, nor does
it require any limitation in the expulfive act, to ex-
clude an effect which does not, and cannot naturally
belong to it.
The right of election is in the people, and they
hold it not only under the immediate protection of the
houſe of commons, who are bound to defend it; but
they hold it abfolutely independent of the houſe,
and controuled by nothing but the law of the land.
I do not fay, they hold the exerciſe of the right inde-
pendent of them; for that is fubject to their judica-
ture in cafes of election, as the poffeffion of the right
alſo is. But I deny that the right of election is ſub-
ject in any degree to them; and I fhall prove it is
- not before I have done. Nor fhall I take for an anſwer
to bring the right itſelf within the vortex of the jurif-
diction of the houfe of commons, what has been faid
of the right of being elected, viz. that the right of
electing too, is a parliamentary right, becauſe it is to
be exerciſed for, as the other is to be in parliament.
Paffing this, however, for the preſent, I repeat it,
the people hold the right of election abſolutely inde-
pendent of the houſe of commons, and the reprefen-
tatives themfelves hold their repreſentative-right
alſo independent of the houſe, with this fingle
limitation of being liable to expulfion with its
juſt and conftitutional effects.. Do the gentlemen then
recollect what incapacity is ?-That it is laid not upon
the perfon expelled only, nor upon his own immediate
conftituents only; but upon all the electors of Eng-
land? And fhall the houſe of commons, in the perfon
of one man, disfranchiſe all the people of England?
P 2
-The
t
1
[23༠]
-The houſe of commons bound to maintain and de-
fend all the privileges of the people-The houſe of
commons which cannot make a law to deprive the
meaneſt ſubject of the loweft right.-Yet disfranchi-
fing them it is; for the unlimited freedom of election
controuled by nothing but the law of the land, is of
the effence of the franchiſe: And if reftrained but as
to one fubject who is legally capable, and whom the
law has not incapacitated; (and it must be to as
many as the houſe in their wisdom and direction thinks
fit to expel) the franchiſe is ſo far diminiſhed, it is
fo far cut off.
The author of the cafe may tell us, as he does with
great gravity, that though the houfe cannot, and
"god forbid they ever fhould, fay, whom the elec-
"tors fhall choofe; yet they may declare who by law
are not to be chofen: And by expelling a member,
"they declare without faying more, that he is capa-
"ble of being elected for that parliament."
66
But this is only after the manner of our author:
For there is all the difference in the world between
declaring who by law are not to be chofen, and
declaring without faying more, that is filently making
a perfon incapable by expulfion without any law for
it. Language long ago uſed in parliament has taught
me this plain and found doctrine, that "it being the
"great privilege with Engliſhmen, that they are not
"to be taxed but by their reprefentatives; it is a
"difinheriting them of the main part of their birth-
65
right to do any thing that fhould fhut them out
"from theif free votes in electing." This expulfion-
incapacity however, does it.
But with what part of the conftitution, or power of
the houſe of commons does this quadrate? It is total-
ly diſcordant with the origin, the nature, and end of
the
[231]
the inftitution-with the conftitution of parliament,
which is emphatically the law of parliament.
Were fuch the omnipotence of the houſe of com-
mons (for on fuch an occafion we may call it fo,
though it is a bold figure, as the author of the caſe
obferves) why could it not disfranchiſe a venal borough
that had juftly incurred their higheft indignation?
Why order in a bill to cut off the corrupt corporation
of Stockridge? Might they not by a vote have inca-
pacitated them for the fubfifting parliament at leaſt:
Qr expelled them from the parliament roll?-A
power, by the way, which, though it may be a quef-
tion in apicibus juris, how far it extends, cannot cer-
tainly be infinite or the conftitution might foon devolve.
Was an exclufion of one proſtitute borough more
than an incapacity upon the electors of England,
be it but as to one man, and for the ſubſiſting
parliament.
It ſurely is not neceffary, after what has been ſaid,
to compare the prefent cafe with other inftances of
exceſs of the conftitutional powers in the houſe of
commons. Do they want to retrieve all the power to
which they ever made pretenfions? The journal-
mongers may find in their mufty records among the
four parliament judicatures, one that was exerciſed
before the peers and commons together. They may
fend us to the folios of the placita parliamenti, to ftudy
the barbarous learning of cafes adjudged by the pre-
lates, earls, barons, and community of England, and
by the lords and commons.-They may themſelves
confult the ſentences of fine impriſonment, pillory,
and much more, pronounced by the houſe of commons,
for crimes at common law againſt Berresford and
others, who are not members of parliament; and
particularly the famous cafe which is the magazine
of the learning now raked up about the houſe of
P 3
है
commons
· [232]
}
commons being a court of record: I mean the cafe
of Lloyd, whom the commons, in the commons
houfe of parliament, did adjudge and award to fuffer
a ftrange puniſhment for flandering the king's daugh-
ter: A precedent not attempted, I believe, to be fol-
lowed fince Cromwell's houfe of commons (fanaticks
as they were themfelves of the worst kind) inflicted a
cruel doom of that fort upon a poor frantick fanatick.
They may try to revive the difpute which that cafe of
Lloyd's brought on with the houſe of peers for invad-
ing their juriſdiction, and which ended with a fort of
compromiſe adviſed by the folicitor general" that it
"would do no harm to agree that no ufe of that pre-
cedent fhould thereafter be made, for increafing the
power of the houſe of commons, or abridging that
"of the houfe of lords."
-60
Thefe, and much more of that rubbish to be
found in the journals, are all precedents: And prece-
dents, we are told, are the law of parliament, which is
fet up as a part of the law of the land, but only to
devour it, as Pharaoh's lean kine did the fat.
The conftitution is, we hope, now in a ſtate of ma-
turity, and the waves of fluctuation calmed: And as
a man naturally robuſt and prudently temperate, fel-
dom needs medicines, we truſt a conftitution fo well
moulded in its form, and fo happily preferved in its
ſhape, as ours has been, does not require daily or
much repair. Contests, like the prefent, helped to
fettle the conftitution, and to fix the bounds of parlia-
mentary juriſdiction. The prefent difpute may tend
to brighten the land marks, and, we hope, it will have
no worſe effect.
The author of the cafe has been at great pains to
give us a full hiftory of the attempts of the houſe of
lords, to invade the exclufive judicature of the com-
mons in matters of elections. Gentlemen fo conver-
fant
[233]
fant in the journals, cannot have overlooked the in-
ftances in which the houſe of commons, as the guardi-
ans of the rights of the people of England, alfo made
their ſtand againſt the lords, in fupport of the law of
the land.
It is worth while to obferve the ſpirit with which
the commons refifted the lords, when they attempted
in 1667-8, to erect themſelves into an original judica-
ture to try cauſes in the cafe of Skinner, who, upon
his petition to the lords, got a decree for 50col. da-
mages againſt the Eaft India Company. The com-
mons ordered Skinner into cuftody, for applying ori-
ginally to the lords in a common plea, which they,
with great truth, faid was not agreeable to law; and
they voted "that whoever fhould be aiding or afliſt-
"ing, in putting in execution the order, or fentence
"of the houſe of lords, in the cafe of Thomas Skin-
«ner, againſt the Eaft India Company, ſhould be
"deemed a betrayer of the rights and liberties of the
"commons of England, and an infringer of the pri-
vileges of the houſe,"
<c
The diſpute between the houſes produced a proro-
gation of the parliament. But the people of England
have reaped the benefit of the attention the houfe of
commons in that inftance gave to their rights and li-
berties for the like attempt has not fince been
made *
The
* A late proceeding in the fame place, nearly connected with
this buſineſs, was thought by fome to carry too much the aſpect
of exercising an original, and not a very competent criminal ju-
rifdiction. It is not to be wondered at, if the leaft appearance of
that fort carried an alarm with it: for the diſtinctions of juriſdic-
tion and the forms of trial, eſpecially in criminal matters, are ef
fential to the liberty of the ſubject. To ſay the truth, the houſe of
lords have been remarkably tender of affuming or extending
their juriſdiction: which makes the attempt in the cafe of Skin-
ger the more furprising. The appellate juriſdiction of the lords,
P 4
upon
[
234 ]
[
The lords not long after returned the compliment,
and ſtood forth as the protectors of the people's rights
against the commons, when they pretended, in a ſtrange
manner, to extend the privilege of their houſe to ſtop
an appeal in a caufe of a member of parliament,
The lords, as faithful to the privileges of the people,
as fteady to maintain their own jurifdiction, nobly
oppoſed that ufurpation of privilege by the houſe of
commons, becauſe, as they juſtly faid, fuch a privi-
lege would induce a total failure of juftice in the
land: And the difpute between the two houfes went
fo far, that the king was obliged to prorogue the
parliament on account of it. But the fruit of the
conteſt has been, that the commons have not fince
pretended to a privilege fo unconftitutional and def
tructive.
ނ
The comfort miniftered by fuch inftances, is, that
when incroachments of any kind are made upon the
rights of the people, in a free conftitution fo well
ballanced as this is, the people find protectors for
their rights, whoever invade them, and the evils pro-
duce their own remedy. We do not therefore think
we
upon writs of error from the courts of common law, was very
carly eſtabliſhed beyond diſpute : But it was long before appeals
from courts of equity made their way. Which is the reaſon of
the many proceedings we fee in the journals of the houſe of com
mons upon complaints againſt decrees of the court of chancery,
and acts of parliament to reverfe and confirm them, particularly
while lord Bacon held the Great Seal. About that period, the
growing jurifdiction of the court of chancery was much inveigh-
ed againſt as a grievance. At laſt, upon a perſonal complaint
to the houſe of lords againſt Lord Bacon, on account of a de-
cree of his, the foundation of appeals to parliament was laid,
which is now the regular courfe of juſtice, and of the jurifdic-
tion of the lords, as the undoubted law of parliament. But if
the lords ever were to affume an original juriſdiction, either in
civil or in criminal caufes, except upon impeachments of the
commons, who are the grand inquet of the nation]; there is an
end of liberty, and Magna Charta itſelf is laid in its grave.
7
[ 335 ]
1
we have gone out of our way, to bring up to view,
on this occafion, fuccefsful vindications that have
been made in former times, not only of parliamentary
jurifdiction, which the author of the cafe goes fo much
afide to affert for the houſe of Commons; but of
the common law of the land, and the common right of
the fubject; which is the very heart of the queftion
now actually in difpute. It is to be hoped, every
right of the people, eſpecially the great right of free
elections, will´always be ſecure under the protection
the conftitution has provided for it, whether that muft
be fought for in one branch or another of the well poi-
fed powers of the great machine of government.
Let each part of the legiflature poffefs its own fhare
of authority. No good fubject wishes at this time of
day to diſturb fettled poffeffion. We do not even for
retaliation, defire to recall the times in which the
powers of the commons were moré cramped than at
prefent ;-when they went to the lords for releaſe of
their own members, even of their ſpeaker, when im-
priſoned in breach of privilege-and went without
fuccefs; nay, were obliged to have fpecial acts of par-
liament to diſcharge out of coſtody the fervant of a
member of parliament: We want not to revive fuch
reſtraints upon the power of the houfe of commons,
as we read of in Lord Coke, who tells us," it was
"the law and cuftom of parliament, that when any
new device was moved in the king's behalf in
parliament for his aid, or the like, the commons
might anſwer that they tendered 'the king's eftate,
"and were ready to aid the fame, only in this new
"device they dare not agree without conference with
"their countries." Whereby it appeareth (as his
lordſhip adds) "that fuch conference is warrantable
"by the law and cuftom of parliament."
60
ત
This is, perhaps, not the only inftance of the law
of parliament, which the houfe of commons at this
day
[ 336 ]
}
1
day would chooſe to call obfolete. But let not the ad-
vocates for the power of the houſe of commons inju-
diciouſly uſe this fame weapon of the law of parlia-
ment, which they may fee has two edges, though
probably it is moft blunted on that fide they would
be leaft fond to whet.
On the other hand, they muſt fuffer the friends of
liberty to hold up the conftitution of Parliament, which
is its higheft law, and the true principles on which all
the power of Parliament is founded, as a defence for
the rights and previleges of the people; which has al-
ways
been uſed when they were attacked. We fhall
take the liberty to think, and we hope we are yet free
fo to do, till better arguments or authorities, than any
we have yet ſeen, are produced, that there is no war-
rant for incapacity, as the neceffary effect of expulfion,
either in the conftitution of the houfe of commons, or
in any power which to us is known to belong to it:
to prove which, we devoted this third head of the
grounds or principles on which the firſt branch of the
question ought to be tried.
<<
There remains only to conclude the difcuffion of
this firſt branch, the forth ground or principle by which
we propofed to examine it namely, "the end and de-
fign, or the ufe and purpofe if expulfion, from
“which it will appear, if it can be made appear,
"that expulfion, does not anſwer its manifeft end,
"unleſs it includes incapacity: and confequently the
neceffity of its implying ſuch an effect, will be de-
"monftrated; or it will be fhown on the other hand,
"that it would be as ufelefs, as unfit and improper
that it fhould go fo far."
There can be but theſe uſes in expulfion to punifa
the member as an example for preferving order and
preventing offences-to preferve the purity of the
houfe-and to fecure to the conftituents a proper re-
preſentation.
To
L 237 ]
To begin to the laſt, which is, out of fight, the
greateſt of the three; expulfion without incapacity fe-
cures this end becauſe it gives the conftituents a new
choice: and had it not been for this, I doubt much if
expulfion had ever been found among the powers of
the houſe of commons. The beſt ſolution of a thing
fo contrary to the origin and nature of a feat in that
houſe, may perhaps be this, that the conftituents could
not recall their own commiffion: and therefore it is in
the houſe to expel, that there may be room for a new
choice when they are of opinion a perfon formerly cho-
fen is unfit to fit.
But till I fee, what can never happen, the houſe of
commons made the judges of the fitneſs of the people's
repreſentatives, I cannot fee why expulfion, which is
the act of the houſe, ſhould infer incapacity, only to
reftrain the free choice of the conftituents. The con-
ftitution, ſo far as I have been able to diſcover, has re-
ferved to the electors themſelves, under the limitations
of law, to judge who are fit to reprefent them: and if
they ſhould differ in opinion with the houſe, they have
the beſt right to judge, becauſe they have the greateſt
intereft in the choice. For as the beſt writers on go-
vernment have obferved, nothing more requires free-
dom and indifference, than this of electing members to
ferve for us in parliament, who have put into their
hands the power of our eftates, of our liberties, of our
lives; and therefore it is but reafon that thoſe who are
fo much concerned in the determination of the perfons
to be elected, may have a free and indifferent choice of
them. The opinion of the houſe expreffed by their
expulfion, will naturally have all the weight it deferves
as an advice or direction to the electors, and the confti-
tution or law only can give them a negative. But fuch
a negative is fo contrary to the nature of reprefentation,
that it is nothing more than reaſonable to require a ve-
ry clear and pofitive law for it.
As
[ 238 ]
As to preferving the purity of the houſe, it does not
ſeem to be too much to ſuppoſe that the laws of the
land, are fufficient for that purpoſe. One whom the
law of the land has deemed unfit to be in parliament,
cannot be chofen, becauſe he is under a legal incapa-
city: And I know no other legal way of determining
I who is fit but this, that every one must be deemed fit,
in a legal fenfe, whom the law has not declared to be
unfit.
But fuppofing a particular inftance, which cannot
be fuppofed often to occur, that a perſon was in a mo-
ral ſenſe very unfit though not under an abfolute legal
exception; fuch unfitnefs muft arife from fomething,
that the law can take notice of, or it is nothing to any
legal purpoſe; and if it does ariſe from fuch a thing,
and electors fhould notwithſtanding chofe fuch a per-
fon (which is a fuppofition fo contrary to the natural
courſe of things, as hardly to be an object of legal at-
tention) ſtill there does not appear to be a defect of
remedy, even in the courfe of parliament. The houſe
of commons has the power of impeachment; and up-
on impeachment, the houſe of lords have a legal jurif-
diction over all the fubjects in the kingdom, and can
by a fentence in the courfe of a legal trial, according
to the law of the land, declare a perfon incapable of
holding any place of publick truft, which will effectu-
ally take him out of the way of mifguided electors.
This has been often practifed by the houfe of com-
mons, and it ſeems particularly to have been the old
faſhioned courſe of parliament, for the commons to
carry members of their own before the lords, for pu-
niſhments beyond the legal power of the commons to
inflict. It did fo with Sir Giles Monpeffon and Sir
John Bennet; and after Sir Giles, was expelled, he was
by judgement of the lords confifcated, degraded, ren-
dered infamous and incapable of public truft, &c.
To
[ 239 ]
✔
To fay but a word to the other object of expulfion,
as a puniſhment, for example, to preferve order and
prevent offences; no cenfure of the houſe of commons
to perfons of that rank that intitles them to fit there,
can be eſteemed a light thing: and cenfures much
lower than expulfion have, in general, been found fuffi-
cient to preſerve internal order and decency. Expul-
fion must be felt as a very high cenfure. It puniſhes
the preſent offence moft fenfibly; and if a member ex-
pelled is re-elected, and does not again offend, the
cenfure has had its effect. If he tranfgreffes afreſh,
he is liable to be again expelled, and if the expul-
fion is juft, it will, in a natural courfe of things,
have the effect of exclufion. For we cannot argue
upon a fuppofition that mankind are all madmen or
fools.
If the cauſe of the expulfion does not convince
electors that the perfon expelled is unfit to repreſent
them, it is no great fign in favour of the expulfion :
and I think it is by much the better opinion, that
the judgment of the conſtituents ought to prevail over
that of the houſe, fuppofing them both to be only
equally liable to err. Let me add this confideration
more-That if the power of expulfion is neceffary
to ſecure to the conftituents and to the kingdom a
proper repreſentation; fo the free right of election
may, in its turn, be uſeful to protect a fit reprefenta-
tive against the groundleſs fury or political frenzy of
a perverted majority of a houſe of commons, which
has had its days of havock before now, to contraſt
with any period of the peoples' folly. We have heard
of the parliament 1640, through the middle of whofe
expulfions, the writer of the Confiderations himſelf,
has been obliged to cut a line.
The author of the Cafe has indeed ſpent a para-
graph to inform us, that "to admit the right of ex-
66
pelling
[240]
CC
pelling, and argue that the member expelled may
"be re-elected, is to contend for the groffeft abfur-
"dity; that it would expofe the judicature of the
"houſe of commons to flagrant infult and contempt;
« and render their determinations nugatory, and of
lefs weight than the loweſt court now exifting."
The abfurdity I commit to the argument that has
been fubmitted. As to the reft, I am ſtrongly in-
clined to believe, if ever a fentence of expulfion, even
though admitted to imply no incapacity, expofe the
judicature of the houſe of commons to contempt;
the fault will be as often in the exercife of the judi-
cature, as in the inefficacy of the fentence: and when-
ever it is fo, there is no infult. The gentlemen them-
felves would perfuade us, that no expelled member
was ever re-elected before Sir Robert Walpole; and
they admit it was not then known to be law that ex-
pulfion inferred incapacity, for which reafon the
houſe of commons did not take the advantage of the
electors ignorance to confer the feat upon Mr. Taylor
with his minority of votes. The fact ſtated by them-
felves therefore proves, that fentences of expulfion
have met with due reverence from the people, even
when they did not know that they were tied up by an
incapacity.
The houſe of commons may truft a wife and legal
exerciſe of their judicature on the fame ground as long
as men are rational creatures. The people in all
countries are naturally inclined to pay a refpect to ſe-
nates and national affemblies; but more efpecially
where governments have any mixture of the popular.
Qui tribunis plebis nocuiffet ejus caput Jovi facrum eſſet.
And this reſpect will certainly never be loft, but where
fenates and affemblies are feen to proſtitute themſelves
to the views and deſigns of baſe and ambitious men
in power.
$
We
[241]
We might appeal to all who have ever been in par-
liament, eſpecially in thefe days of virtue, if expul-
fion, which muft at leaſt coſt a new election, is a nu-
gatory puniſhment.
The conftitution can take no notice of boroughs at
the command of particular perfons, which the writer
of the Confiderations mentions to prove that incapa-
city, not expulfion, was the puniſhment chiefly in-
tended for Mr. Sackville, who would not be eight
and forty hours out of parliament while the Borough
of Eaſt Grinstead could chooſe him. What the con-
ftitution takes no notice of, a legal argument has no-
thing to do with.
Another argument ufed by the author of the Caſe
'deſerves to be taken notice of, not for its ftrength on
his fide, but becauſe it excellently illuftrates and con-
firms our doctrine; and may make it ſtrike more for-
cibly by putting his reaſoning in the ſcale againſt our
principles. "The member," he fays, " is expelled
by the people of Great-Britain affembled by their
. repreſentatives. And fhall a part of the people,
"fhall the electors of a particular county, fay,-We
"will not be bound by the judgment of the majority;
"-ſhall they be at liberty to reſtore him who had no
"C
power to expel him?—Certainly not”—Anſwers
our author to himſelf with great facility; and he is a
fool indeed that puts a queftion to himſelf, that he
cannot eaſily anſwer.
But I happen to be fo unfortunate, as to appre-
hend that our author's reafon, is, from the nature of
the thing, an unanfwerable one, why the expulfion
ſhould not bind the electors, not to re-elect, viz.
exactly and preciſely, becauſe the member is expelled
by the repreſentatives of the reft of the people, that
is, by thoſe who did not chooſe him, and had no
right to chooſe him, and therefore ſhould not have a
power
f
[242]
-}
power to deprive the electors of their right to chooſe
him, or him of his right to fit when he is choſen by
them both which rights we have proved to be in
their nature independent of the houfe, and of all the
other reprefentatives in it, and of the whole people,
but that particular body of electors who chooſe, and
by choofing, give the right of fitting to the perfon
chofen by them.
the
If they ſhould not be at liberty to restore him who
had no power to expel him, why fhould they be at
all at liberty to expel him, who had no power to
bring him there at firft. For,our author's argument
is juſt as good for the one negative as the other; and
there is an authority for it: Nihil tam conveniens natu-
rali equitali unumquodque diffolvi, eo ligamine quo ligatum
eft. But if a better foundation could not be laid for
power of expulſion than this argument of our au-
thor's leaves it to ftand upon, we fufpect it never yet
had been found out. We have endeavoured to fhow,
how the power of expelling, though in its nature re-
pugnant to the origin of the feat, does lie in a pecu-
liarity of the conftitution, as founded in the incident
and inferior power of felf-government, fubordinate to,
but confiftent with the great end of an independent
reprefentative-right, and neceffary to preferve a pure
repreſentation.
It is more natural that the conftituerts who have
the power to make, and alſo the power to unmake
the member at every new election, ſhould be at li-
berty to exert that power freely, than that the houſe,
who cannot make, but only can expel him, ſhould
have power to reftrain the electors, as a fort of accef-
fion to the power of expulfion, which is at beſt a
very heterogeneous, and therefore a very limited
power.
The
[243]
The other argument. of fuppofition urged by our
author, will equally appear to want the fterling qua-
lity, when brought to the touch-ftone, as bad argu-
ments, always do, when affayed by principles. He
puts the. caſe," that the people inſtead of being af-
fembled by their reprefentatives, had been per-
fonally convened;" and he aſks this other queſtion,
"Will any one fay, that a perfon having a right of
"being prefent at that affembly, may not forfeit that
right by indecorum, by treachery, by immorality,
66
66
" &c.
And are not the majority of the affembly
"the fole judges of his fitnefs to continue a member?
"If they judge him incapable, may they not expel
"him? And can he ever acquire a feat in that af-
fembly again, againſt the fenfe of the majority?”
<<
Now to bring this to a very ſhort point upon a real
caſe, the neareſt to the one fuppofed that can, I be-
lieve, be figured: I afk in my turn, if the electors of
Middleſex are affembled to chooſe a member of par-
liament, where every freeholder of forty fhillings has
a right by virtue of his freehold, and under the law
of the land, to be preſent and to vote; and has that
right independent of the whole body of freeholders;
in that cafe, I fay, I afk, if the majority of the free-
holders can, for any reaſon whatever, expel one of the
body, or exclude him from his vote?To uſe our
author's fhort way of anfwering; I fay-Certainly
nor. If a freeholder is riotous and breaks the peace,
the fheriff may do what is neceffary to preferve it.
The fheriff too is judge, in the firſt inſtance, if one
who claims a right to be preſent and to vote as a
freeholder, has the legal qualification.But nobody
will fay, that the freeholders can expel a freeholder.
The reaſon is apparent. He holds his right in him-
ſelf independent of them: and nothing but the law
can deprive him of his vote. An inftance could be
mentioned of a perſon of rank adjudged to be in-
VOL. III.
famous
е
{
[244]
'
?
1
famous by the higheſt judicature in the kingdom;
who, nevertheleſs, could not be excluded from a moft
refpectable body of freeholders; becauſe the judgment
did not affect his freehold, or his right to vote. So,
it is by ſpecial ſtatute only, that perjury, with regard
to qualifications, incapacitates one to vote in an elec-
tion of a member of parliament.
Finally; it is of no importance in this argument,
that, as our author obferves, every member when
choſen ſerves for the whole nation. He muft ſerve ·
for the whole nation, becaufe he' is elected to fit in
the council of the nation; and both the council and
the nation are indivifible: but if this circumftance
proves any thing, it is only, that becauſe the whole
nation, as well as the particular electors, has a pro-
perty and intereft in the feat, and confequently in the
capacity of every member, the power of expulfion is
not only to be the more tenderly handled, but the
effects of it not to be extended beyond the natural
and due bounds of the power, fo as to hurt the inte-
reft of the nation, or rob it of its right.
3
Thus we have at a length, which it is to be feared,
may rather have appeared. tedious, difcuffed the firſt
branch of this very important queftion, viz. "whe-
"ther incapacity be implied in, and the neceffary
"effect of expulfion." If what has been faid is of
any force at all, it unavoidably anticipates, in fome
meaſure, the fecond branch, to which we now pro-
ceed-Namely, "the authority and effect of a refo-
"lution of the houſe of commons, declaring an inça-
"pacity, or ineligibility."
It will be underſtood, that we here fuppofe with
the writers on the other fide, a refolution in a parti-
cular cafe upon the trial of a return of a member to
ſerve in parliament, adjudging that the perfon return-
ed is incapable of being elected.
Here,
[245]
Here, it is extremely difficult to bring any one of
the writers, whofe performances we are confidering to
a confiftency with himſelf, and much more to make
them both agree. The pofition of the author of the
Cafe, exprefsly and repeatedly laid down as has been
feen, is, that " admitting incapacity was not a necef-
"fary confequence of the expulfion, yet the expreſs
"declaration of incapacity by the refolution was
"binding." And, in other parallel terms, the wri-
ter of the Confiderations, is yet more incomprehen-
fible; he tells us, page the 6th, it has been ſaid,
"the houſe of commons cannot by their reſolution
"make the law; they cannot, without an act of par-
"liament, incapacitate any man, or body of men,
"from having a right to be elected." And he in-
ftantly adds, "I admit it, but this power, as fo
"ſtated, was never contended for the matter in
"difpute is, whether the houſe of commons, in mat-
"ters of election, can by their refolution without an
"act of parliament declare the law; and whether if,
"by law, any man, or body of men, are excluded
"from being eligible into parliament, the houſe of
"commons is not the fole and exclufive court of
σε judicature, by which this law is to be declared,
"and this queſtion to be determined: and to this
(fays he,) which I take to be the fair ſtate of the
"queftion, I do not believe any man will give his
"negative."
CC
But, for goodnefs fake, why does the gentleman
beat the air? Or, in his own words, Why does he
combat a phantom? Is there no queftion between
us; or what would he have the queftion to be? He
admits what he fays is ftated on the other fide; I ad-
mit what he ftates as above. Are we then agreed? If
we are, to what purpoſe has he wrote fuch a treatiſe as
he has given us?
Q²
No:
[246]
No verily we are nothing lefs than agreed. For
whatever be the form of this gentleman's words, and
however ftrongly and clearly he admits, as above
quoted, "that the houſe of commons cannot inca-
"pacitate any man, becaufe," (as he elſewhere plainly
fays, page the 18th,) "the refolution of the houſe of
"commons cannot make the law." Yet, in reality,
he is contending all the while for nothing elſe: and
the fallacy, which is rather infidious, though too grofs
to deceive, lies in this, that as he advances, "the
"houſe of commons can declare the law; and they
are the fole and exclufive court of judicature, by
"which this law of incapacity is to be declared, and
"this question of eligibility to be determined".
Ergo, what? This and nothing elfe, that whatever
the houſe of commons does declare to be law,-
is law,becauſe there is no appeal from their jurif-
diction.
"
With this lurking fallacy, he proceeds again to fay,
(page the 7th, lin. ult.) the "houfe of commons de-
"clare the law of parliament to be, &c.--Is this
"making a law by their own refolution? Do they
"fay that Mr. Wilkes, having been expelled, fhall
"not hereafter be re-elected into this parliament ?"
In the name of wonder, if they have not faid this,
what is it they have faid?" No, (fays the writer of
"the Confiderations,) the refolution is, we having a
❝right to declare the law, and having confulted pre-
cedents, (and fo forth,) do adjudge, that a man
in Mr. Wilkes's fituation is, by the law of parlia-
"ment, incapacitated from being elected to be a
member of this houfe of commons."--Yet, but
the very laſt words he had wrote, he had, by putting
the queſtion as the ſtrongeſt kind of negation, denied
that the houſe has faid that Mr. Wilkes fhall not here-
after be re-elected into this parliament.
This
[247]
This is blowing hot and cold at a ftrange rate. I
muft give it up as utterly unintelligible. But the
point the writer at length comes to, is this, to fhow,
page the 8th," that the houſe of commons have at
"all times, without objection or controul, exerciſed
"this jurifdiction of declaring by their own reſolution
fingly, and without an act of parliament, what the
"law is, as to the eligibility or difqualification of
"members to ferve in parliament."
66
This, if I underſtand it, is, as I faid before, and
it cannot be any thing elſe, that the writer is to fhow,
that whatever the houſe of commons declared by their
own reſolution, fingly, to be the law, as to eligibility
or difqualification, is, and fhall be the law, and no-
thing elfe. And full, as a Trojan horfe, of enemies.
under cover, he diſcharges his maſked battery of
claffes of perfons, the houfe has at different times.
refolved not to be eligible.
If the gentleman had meant no more, than that
the houſe of commons, as the judicature for mat-
ters of election, may declare law that exifts, that is,
may apply the law in being to the cafe; I have ſaid I
admit it, and he fays nobody will give it a negative,
we fhould therefore have had no difpute. But truly
it is impoffible to chace thefe gentlemen in all their
turnings and windings. Their doctrine would not
fuffer them to keep a ftraight road. Sometimes
they walk together a while, and then they joftle one
another. But they are both fo careful to conceal,
as far as it is in their power, their real drift; and
for that purpoſe, they confound and convert terms
ſo amazingly, that we are obliged to ferret out their
defign, before we can ftate a fair queftion to argue
upon.
To return then to the queftion, I am in the judg-
ment of any intelligent perfon, who has read the Cafe
Q3
and
[248]
.!
and the Confiderations, if I have mifreprefented the
real doctrine of either of the gentlemen. And the
only queſtion I can ſtate upon it is this, Whether, or
no, (in the words of the author of the Cafe,)" ad-
"mitting incapacity not to be the neceffary confe-
"quence of expulfion, or that expulfion does not of
"itſelf create incapacity, the houſe have a right to
"declare who are, and are not eligible." Or, (as it
is expreffed in the Confiderations,) "Whether the
"houſe have a right of declaring by their own refo-
"lution fingly, what the law is, as to eligibilitv or
"difqualification." Which, I have fhewn, does,
and, in the mouths of thefe gentlemen, only can
mean, That the houſe can by a refolution upon a re-
turn incapacitate any perfon returned, by declaring
him ineligible, although there be no law in being,
other than, or antecedent to, the refolution by which
he is declared or adjudged to be incapable, i. e. is
deprived of his common right of being elected.
To meet this queſtion on fair ground, and to meet
both the author of the Cafe, and writer of the Con-
fiderations as near as poffible.--The firſt teſt I pro-
pofed for trying the point was,
"The character or capacity in which the houſe of
"commons act, when they do, and only can, make
"refolutions or adjudications with regard to incapa-
<<
city and the nature of the power competent to
"them in that character."
(6
The gentlemen have anſwered this themfelves. The
houſe of commons is acting as a "court, having a
right to examine and determine returns and elec-
"tions, and all queſtions incident thereto." It is the
power of judicature they are exercifing, and that
only. In fuch matters, "they are, (as the houſe af-
"ferted to K. James I.) a court of themſelves of
"fufficient power to difcern and determine." I enter
into
[249]
4
into no difquifitions or diftinctions as to a proper or
improper fenſe of the word, court, applied to the
houſe of commons; or whether they are a court of
record, which has been difputed between the lords
and them I fhall only fay, it is not very compre-
henfible, that there fhould be a court of record,
from which no judgment, order, or procefs can iffue,
but under the hand of the fpeaker, and not from
the record, or through a proper officer who can act
from the record: they are a part of the high court
of parliament, and they have judicature in certain
cafes, and a right judicially to determine upon certain
things.
Now it is a propofition that demonftrates itſelf,
that a court to diſcern and determine, cannot make
law they are only to apply the law that exiſts to
the cafe before them. The very idea of judicature
excludes the notion of making law and thoſe who
have ftudied the principles of government know it is
a foleciſm in policy, to confound, or blend together
legiflative and judicial powers; becauſe it can hardly
fail to produce a perverfion of juftice. In the houfe
of lords, who are a court of record in the moſt pro-
per ſenſe, were in the exerciſe of their high judica-
ture, inſtead of determining according to law, to
make a refolution of their own to be a law for one
cafe, or for all cafes of any one line or order, their
refolution would be void: for as a court of law,
they are not to make but to expound and apply the
law.
Secondly, As the next principle or ground, on
which to try this branch of the queftion, let us, en-
quire what is the "fubject matter, upon which the
power competent to the houſe of commons in their
"capacity and character, as a court to determine up-
"on elections and returns, operates or is exerciſed:
"and
<C
*
Q4
[ 250 ]
礁
​$
1
*
and what are the bounds within which it is, in this
"refpect, legally circumfcribed." And
In general, I anſwer, this power of the houſe being
judicial, it muft, as in all other judicatures, neceffa-
rily and in the nature of the thing, operate upon
every right or claim, every privilege or franchiſe,
every character or capacity, that can, in the compe-
tent exerciſe of the judicature, be brought into quef-
tion; whether in refpect of the title to the enjoy-
ment and exerciſe, or the effect and confequence of
that matter or thing, fo brought into question. To
exprefs myſelf in terms as general as I can find, I
fay this judicial power muft reach and extend to
every thing in law, or in fact, neceffary to the trial
and determination of the caufe before the houſe. But
then I add, that the power being judicial only, it
muft alfo in the nature of the thing, and from the
fame neceffity, be confined to fuch proceedings as are
ftrictly judicial: for it is but a power of judicature,
the houſe, in this inftance, is exercifing.
I could agree with the author of the Cafe, that
"the rights and qualifications of the electors and
"elected, together with returns of writs, and all
matters incidental to elections"--are the fubject
matter upon which this juriſdiction of the houſe of
commons is to be exerciſed :-Or, that "the houſe
has, (as he fays,) the fole and exclufive power of
"examining and determining thoſe;" but I know
there is a fecret equivocation in the words. Any one
may fee, that the fenfe in which the author means
that the houſe has a right to determine the rights,
and qualifications, and difqualifications of the elec-
tors and elected, is this, that they have a right by
their own authority, or by their refolution fingly, to
fay, what is, or is not a right, a qualification, or diſ-
qualification. Indeed the writer of the Confiderations
feems
*
[ 251 ]
1
feems inclinable to ftretch the power of the houſe of
commons fo far, that they may, under this idea of
determining the rights, and qualifications, and difqua-
lifications of electors, give, as well as take away the
right of election. At least I cannot fee what elſe he
means, when, for illuftrating and confirming his doc-
trine on this head, he aſks this question, "Has the
❝right claimed and exerciſed by the houſe of com-
"mons ever been doubted, to determine whether bo-
roughs have by their ancient conftitution a right to
"fend members to parliament? A power, (fays he,)
"much more extenſive than that contended for in the
"prefent queftion."
CC
To this I fhall only anfwer, that if the houſe of
commons were to order a writ for Mancheſter or
Birmingham, they would, in my apprehenfion, act as
much againſt the conftitution, and againſt law, as if
they were to reſolve that the city of London has not
a right to fend four members to parliament: becauſe
that would be, by an act of theirs, to confer the
parliamentary franchiſe, which the houſe of commons
never had, nor pretended to have the right to do;
whatever the prerogative of the crown may have been
in this refpect, which is now at an end by the pacta
conventa of the union. But in the inſtance referred to,
there is nothing of mere power, but a fair exerciſe of
the jurifdiction competent to the houſe of commons,
while the ſubject matter of it exiſted, which it does
not now in fact fince the union took place. For that
jurifdiction intitled the houfe to determine upon the
right of a borough to parliamentary repreſentation, as
much as it did to determine upon the claim of any
particular fet of voters within a borough, acknow-
ledged to have the right of repreſentation, to a fhare
in the election.
1
"
Still
[252]
}
Still in the one cafe, as well as in the other, the
houſe was to judge according to the right of the law
and the cafe, whether the claiming borough had en-
joyed the right of reprefentation, and had, or had
not loft it by diſcontinuance, or any other legal caufe
of a miffion. And fuch were the grounds of deter-
mination in all the cafes of fuch claims that occur
in the journals. To give or confer the right, where
it never had exifted, the grant of the crown was ne-
ceffary, as in the cafe of parliament, boroughs of
new creation; or an act of parliament, as in the cafe
of Wales and the counties palatine, which were joined
to the parliament of England. In thofe cafes the
houſe of commons had no jurifdiction, becauſe they
were not cafes of judicature but of legiſlation.
Therefore it is, that in all the' cafes to which the
jurifdiction of the houſe of commons is competent,
they have only a right judicially to determine, whe-
ther the parties before them have, or have not, that
which the law has made to be the right or qualifica-
tion; or whether they are, or are not difqualified by
'law. And if there were any confiftency in the con-
fuſed ſpeech of the writer of the Confiderations, this
is the only meaning of fome of his own words: but
he has no fooner faid them, than he unfays them as
faft as he can.
The gentleman dares not fay in plain terms, that
the houſe of commons have a right under colour of
examining the qualifications of the electors, to deter--
mine that a freehold of forty fhillings is not a qua-
lification of an elector in a county and confequently,
by a reſolution to deprive the freeholder of his right:
for which reaſon it was, we once before ſaid, the free-
holder enjoys his right of election independently of
the houſe of commons. Neither is it pretended that
the houſe of commons, in examining and determin-
ing
1
པ
[ 253 ]
ing the qualification or difqualification of the elected,
can adjudge that gool. a year is not a qualification for
a burgefs, and 600l. for a knight of a fhire. On
the other hand, we do not deny that the houſe has a
right to examine and determine upon the fact, whe-
ther the perfon is, or is not legally poffeft of fuch a
qualification: and whether the elector has legally,
freely, and uncorruptedly exerciſed his right by vo-
ting. We only contend, that the right itſelf is no
otherways fubject to the examination or determination
of the houſe, than that they can declare, that by the
law fuch is the right; not that they can make a right,
or declare any thing to be a right, or qualification,
which is not fo by law or that they can make an ad-
judication to deprive either elector or elected of the
enjoyment or exerciſe of the right competent to them
by law.
*
But under the general words, right and qualifica-
tion, theſe gentlemen include capacity and incapacity.
Then they mean to fay, that becauſe the houſe has a
right to examine and determine the capacity and in-
capacity of the elector and elected, they may, by the
authority of their own refolution, determine or ad-
judge an incapacity: that is, they may make what-
ever they pleaſe to be an incapacity by the mere au-
thority of their refolution.
We allow the houſe has a right to examine what is
by law an incapacity, and to try the fact, if A or B
lies under it and upon the law and the fact, to de-
termine whether A or B, is capable or incapable. But
we infift upon it, that it is the law, and not the refo-
lution or will of the houfe of commons, which makes
the incapacity; and therefore that the law muft be the
rule of this determination as to incapacity, as it is of
the determinations with regard to qualifications: and
that the houſe can only fay upon fuch a queftion
ftirred,
[ 254 ]
+
1
ftirred, that by law, this or that is, or is not an inca-
pacity, and that A or B, is, or is not under it. We
maintain that the law, and the law only, makes the
incapacity, just as it does the qualification of forty
fhillings, of 300l. or 600l. And the process of
examining and determining the incapacity is very
fhort for every man, every commoner, is capable of
common right and by law and if he has the parti-
cular qualifications required by fpecial ftatutes, and
is not, by law or by fome act of the law, incapa-
citated or deprived of his common right, or of the
poffeffion or uſe of it, he is not, and cannot, by
any refolution of the houſe of commons, be made,
declared, or adjudged to be incapable of being elect-
ed. The law, which is the birth right and inhe-
ritance of the fubject, ftands in favour of common
right; and he who alledges an incapacity againſt
any man, muft produce the law which makes it, and
prove the fact to apply it to the perfon objected to.
So the ftile of the parliament men, when debating
about the incapacity of the attorney-general in the
reign of James I. was this; " nothing against him,
"but he might be of the houſe-confiderable as he
" is a ſubject-every freeman may be chofen-the
precedents to diſable him ought to be ſhown on the
"other fide.”
ક
This the courfe of judicature, and as a court of
judicature, and that only, the houſe are acting in
the examination and determination of an election or
return, or of any of the matters incidental there-
to. If therefore the houſe of commons, by a re-
folution, adjudges or declares any man to be inca-
pable of being elected when there is no law ren-
dering him fo, no law ftatute or common; they not
only make a law instead of judging upon and ac-
cording to the law, which is their province as a court
*
of .
[ 255 ]
द्ध
of judicature, but they repeal the common right of
the fubject, which is the firft and higheft law of
England.
The houſe of commons cannot refolve merely that
A is not capable, or that he is incapable for any arbi-
trary reaſon they pleaſe to affign. They are a court
to diſcern and determine, that is, in Lord Coke's pa-
rallel phraſe, difcernere per legem quid fit juftum. They
muſt reſolve upon the law, and muſt ſhow the law
which creates the incapacity. Otherwiſe the refolution
is not a legal determination, but an act of power;
and participates more of a bill of pains and penalties
than of a judicial deciſion.
The fame rules of judicature regulate the determi-
nations of the houfe as to every other matter inci-
dental to the examining or determining a return or
an election. The houſe can refolve that a return by
a lieutenant of a county is no return: but they can-
not refolve that the sheriff is not the returning officer,
becauſe by law he is. They may punish a returning
officer for not executing the writ; but they cannot
refolve, that a perfon fhall fit without a return, be-
caufe the law requires one. When a return has been
cafually loſt in the carrying, the houfe, on proof of
the fact, have made a fubftitution for the return, as
the court of chancery in fome caſes can repair an acci-
dent to a deed: but that is not difpenfing with, but
fubftantiating a return. It is purſuing, not making or
repealing the law.
In one word, the province and the power of the
houſe of commons, acting in their capacity of judica-
ture, is, jus dicere, not jus facere: and there needs no
more than plain common fenfe to underſtand that dif-
tinction.
This
[ 256 ]
This is no diminution of the power of the houſe
of commons; it is the nature, the law of judicature.
Examples illuftrate every thing. The court of king's
bench, which has no power but that of judicature, can
determine, that an out-law cannot maintain an action,
becauſe, by law, he is out of the protection of the
law. But they cannot adjudge that a fubject under no
legal incapacity fhall not have any legal remedy he
is by law entitled to fue for. They can determine
whether A or B have a franchiſe in a particular cor-
poration, but they cannot determine that a liege ſub-
ject cannot, or fhall not enjoy any right, which by
law he may have in any community in the kingdom.
To go back to parliamentary judicature, the houſe
of lords, (with which the houfe of commons cannot
decline being compared in point of judicature ;) the
houſe of lords, I fay, have as exclufive a jurifdiction
in matters of peerage, as the houſe of commons have
in elections: But the houfe of lords, in trying a claim
of peerage, cannot refolve that the eldeft ſon of a
peer, ought not, or, without a legal reaſon, that he
fhall not fucceed to his father, becauſe by law he
is the heir of the dignity. If the claimant's perfona-
lity is queftioned, the rules of judicature require a
proof; if his legitimacy is objected to, it muſt be
tried as the law directs in the fpiritual court. But
the right of fucceffion itſelf, is beyond the reach of
any power in the houſe of lords to hurt it. For it is
not in the power of the houſe, by an arbitrary re-
folution, to exclude a peer from his feat. They can-
not refolve that a peer fhall not fit in parliament,
becauſe by the conftitution he has that right. They
can only determine whether the claimant has the right
· of peerage in him or not.
Hence in a cafe that has been quoted on the
preſent occafion, and mentioned but not anſwered
in the Cafe, the court of King's Bench juftly paid no
regard
[ 257 ]
regard to that ſtrange order of the houſe of lords, by
which, without a trial, Lord Banbury was on a fur-
mife of illegitimacy, denied the privilege of peerage.
That great man, Lord Chief Juftice Holt, like a judge
prefiding in a court of law, and with the true fpirit
of an Engliſhman, fpurned at the idea of depriving
any ſubject of his birth right, but per legem terræ, aut
judicium parium. He underſtood all the rights of the
ſubject to be ſecured by law from all incapacities, or
difinherifons, without or against law: And therefore
he would not try Lord Banbury for a capital crime as
a commoner, while he had the plea of peerage, of
the right to which the houſe of lords only could
take cognizance.
'Tis equally certain with regard to incapacities, that
the houfe of lords in their judicature as to peerages,
can only judge according to law. The houſe cannot
refolve that a fubject, under no legal incapacity, is in-
capable of being created a peer: Becauſe it is the
prerogative of the crown to call up any commoner to
the houſe of lords. On the other hand (for one in-
ftance of an incapacity) they cannot refolve that a
foreigner is capable of being created a peer, becauſe it
is againſt an act of parliament.
In the caſe of the peers of Scotland who obtained
patents fince the union, the houſe indeed determined
that ſuch patents could not give a feat in the britiſh
houſe of lords: But it was becauſe, according to the
treaty of union, the Scotch peerage fat there already by
repreſentation. This, however, was only determining
that the law flood fo: It was not making a law of peer-
age. I the rather mentioned this cafe, becauſe it has
been thought a ftrong determination, and may feem,
in its nature, to approach the neareſt to fuch an
adjudication of incapacity by the commons as that in
queftion: And we fhall meet with a fimilar incapa-
city in the precedents of the houſe of commons,
flowing
[ 258 ]
}
flowing alfo from the peerage of Scotland: Of
which we fhall take the proper notice when we
come to it.
The decifion above-mentioned only put a conſtruc-
tion upon a pofitive law, fundamental to the union,
by which the ſtate of the ſcotch peerage was unaltera-
bly fixed. It only adjudged that by that law, which
was not to be changed by parliament itſelf, no peer of
Scotland could be in the houſe of lord's both in per-
fon and by repreſentation. And in that light, the cafe
correfponds with determinations as to other attempts
by the crown, to give perfons a fear in the houſe of
lords upon titles repugnant to the law of peerage
Such as creating peers for life, and that rare and
ftrange creation, as it was called of a regular lord by
Harry VIII. who gave a patent to the Abbot of
Tavistock and his fucceffors, to be one of the lords
ſpiritual of parliament, though no baron, and with-
out a barony: Which, it was held, the crown could
no more do, than it could make deans and arch-dea-
cons, lords of parliament, as, without all queftion,
it cannot. Thefe decifions of the houſe of lords, ex-
actly agree with the determinations of the houſe of
commons, that certain claffes and orders of perfons,
legally diſqualified, are by law ineligible.
Need we farther to enlarge? Is it not ſufficient to
fay, that it is the great principle which conftitutes the
true diftinction between freedom and ſlavery, that a
free government, is a government by law, where every
man knows the law by which he is to be judged, and
the fecurity of any right does not depend npon the will
of judges, or upon a law to be arbitrarily made by
them.
With the writer of the confiderations, we are not
indeed fo much diſputing about a doctrine, as labour-
ing to diſcover a fallacy. In words, he profeffes that
the
[ 259 ]
the houſe of commons cannot make a law of incapa-
city, becauſe they are exercifing their judicature only:
but his argument abjures the principle. His decla-
ration of the law, is nothing but a making of law :
and he builds upon the fandy foundation of the fole
excluſive juriſdiction of the houſe. But of that I
can make no other interpretation than this, that it
refolves all right into power: and not being a dif-
ciple of Mr. Hobbes, I cannot fubfcribe to fo Le-
viathan a principle. Power is no privilege for vio-
lence. It may give fome fort of fecurity in the execu-
tion, but it gives no manner of right to the commit-
ting of it.
Here, however, the author of the Cafe perfectly
agrees with his fellow labourer; for to the houſe of
commons, even as a court of judicature, he directly
aſcribes the effect of legiflative power; at one ſtroke
cutting the Gordian knot which he cannot untie. He
fays, page 40, fin. "In the prefent cafe, the houſe
" of commons acted as a court of judicature, in a
"cauſe regularly before them; their declaration
"therefore was the adjudication of the court; and
"the adjudication of a court, having competent ju-
"rifdiction, more eſpecially of a court without ap-
peal, is the law of the land." He does not reſt
here, for in page 30, he conveys yet a harfher doc-
trine if poſſible, in that piece of information men-
tioned formerly, that the houſe have," from parti-
<cular circumſtances, and upon general principles of
"conftitutional policy, adjudged perfons incapable of
being elected."
68
I have before ſpoke ſomewhat of my mind how far
determinations of courts make law. That one deter-
mination, even of a fupreme judicature, does not, I
am certain for in the journals of the houſe of lords,
there can be ſhown decrees diametrically oppofite to
VOL. III.
R
one
[260]
1
one another upon the fame individual point, and in
the conftruction of one ftatute. Such decrees, fure-
ly, were not equally the law of the land, though
both were intended to be according to law: for if
the firſt of them had been the law of the land, the
fecond could never have exifted; unleſs upon this au-
thor's tenet, that one determination of a court of com-
petent juriſdiction, is as good either to make or alter
the law as an act of parliament: which is a principle,
I am confident, the houſe of lords never did adopt,
and never will avow in their judicature, though it is as
fupreme as any can be.
Our author's pofitions emancipate not the houfe of
commons only, but all fupreme judicatures from the
bonds of all law whatever. It makes the will of
judges, the law of courts; and fubftitutes policy, in-
ftead of law, to rule their decifions. But in what
country was this doctrine taught? Not in this free
land. If policy is the law or the quality of the judi-
cature of the houfe of commons, which, perhaps,
our author learned from their old journals; (we flat-
ter ourſelves not from thofe of the prefent time ;)
-We hope it is their peculiar prerogative. For if
this Pandora's box of mifchiefs is opened upon the
other courts of the kingdom, the only comfort left
will be, that hope ftays behind when the evils fly
cut.
We have heard of a fhort queftion, which a vene-
rable perfon, now no more, long the firſt commoner
of the kingdom, ufed to fpeak of in joke, as the
policy of that judicature. But it is probably the
first time it has ever been heard of in law and it
it to be wished that nobody may ever know the
lawleſs legal meaning of it. Whoever it is that
gives us fuch law, woe be to him, and woe beto
the policy of judicature: for woe will be to that
country
I
{ 261 ]
country where fuch political judges live, as are guided
by policy.
If, as our author fays, the adjudication of a court
of competent jurifdiction, fubject to no appeal, can
make the law of the land; I do not know why
even ſhip money and the difpenfing power might
not yet find an aſylum amongſt us. It certainly
might without any difficulty if Charles the IId's and
James the IId's judges could be raiſed from the
dead; and, for fanctifying their illegal judgments,
by the authority of a fupreme judicature, which is
all that is neceffary; the recipe of Queen Anne's tory
miniſtry, (under whofe bleffed government Sir Robert
Walpole was incapacitated,) were only applied to
make a houſe of lords compoſed of fuch men as
princes of that ſtamp could never in any age be at a
lofs to find for their purpoſe.
To ſay that the houſe of commons, in the exerciſe
of their jurifdiction as to election, may, merely be-
cauſe it is fole and exclufive, upon policy or any
other confideration whatever but known law, de-
clare or adjudge any perfon incapable of being elect-
ed, is to contend for a power which, by parity of
reaſon, may deſtroy the whole laws of the kingdom
that can poffibly come within the eddy of that jurif-
diction. It is indeed to make a bafiliſk of that ju-
dicature of the houſe of commons, to kill the
law, whenever it looks upon it. But fuch a power
as the law cannot live with, cannot itſelf live by the
law.
Thoſe men who can find in their heart fo to leave
the laws of the land, and the rights and privileges of
the fubject, at the mercy of any houfe of commons,
the beſt that ever did, or ever can exiſt, ſhould at
leaſt be kind enough to their country, to procure for
the houſe a perpetual fupply of the fame infallible
affiftance,
R 2
[262]
affiftance, that the church of Rome, which attributes
it to the Pope, to have all the laws of the church in
his breaft, has, for their own fafety, provided his
Holiness with, by giving him the Holy Ghoft for his
council.
Such doctrine as thefe gentlemens' may prove very
convenient, as, if it is eſtabliſhed, there will be a
ſpeedy end of all controverfy about incapacities and
fuch fort of things: and, indeed, there can be no
fuch thing as any right to remain, however fundamen-
tal it may heretofore have been thought, which an
incapacity can breathe upon. For if none but the
houfe of commons can judge what is an incapacity,
and they may judge as they pleaſe, it is no matter
how much they judge againſt right: they have the
authority, and their power is good, however ill their
act be.
It may not be foon that good or wife men, even
accuſtomed to a fenfe of the value of their rights,
will be brought outwardly to refift fuch a power:
but it will be as late before any, except very bad or
very fooliſh men, will inwardly approve many of the
acts which are likely to proceed from it. To fay
the truth, it goes very near to reducing all funda-
mentals to the ludicrous definition of them long
ago, given by a writer of great wit," that what-
ever a man hath a defire to do, if he hath uncon-
"tefted and irrefiftible power to effect it, he will
"certainly do it: and if he thinketh he hath the
power, though he hath it not, he will certainly go
" above it."
σε
But we hope better things of our ineftimable con-
ftitution, and things that accompany the prefervation
of our most valuable rights. We truft it is, and that
it is not yet too late to maintain it to be found con-
ftitutional doctrine,-that the houſe of commons in
it's
[263]
1
it's jurifdiction, and judicature as to elections, is
bound, and ever muft be ruled, by law. Which
leads to enquire, as another ground, by which to try
this branch of the queftion.
CL
Thirdly, "What is the law that governs, and
ought to govern the houſe of commons, in the
"exerciſe of the power, belonging to that capacity,
"of which we have been ſpeaking; that is, in their
"judicature when determining upon elections and re-
turns, and conſequently when judging of incapaci-
"ties: which involves the confideration of the law
"of parliament; what it is, and how far that alone,
66 or any
other fpecies of the law, is the rule of their
. proceeding in ſuch caſes."
To prove that the houſe of commons muft, in the
exerciſe of this judicature be bound by fome law,
were vain for it is, as we have feen, implied in the
very nature of judicature. And if there were no ex-
ternal or antecedent law which judges are only to ap-
ply, the office of a judge would ceaſe, and all judges
become legiſlators.
When it is afked, what law governs this judicature
of the houfe of commons, it might, in all reafon be
fufficient for anſwer, to repeat what has already been
faid, that whenever a particular cafe came into judg-
ment, the law which is proper to it, muſt rule the de-
termination of that cafe; it being their office as judges
to decide according to law. And it has not only been
obſerved, but is in itſelf very easy to be conceived,
how great a concern both the common and ſtatute
law of the land must have, in determining upon
the variety of rights and qualifications which come
into question in cafes of elections and returns, and
ftand partly upon common right and common law,
and partly spring out of, or are founded in acts of
parliaments.
R 3
To
}
[264]
To enter therefore into a farther detail of argu-
ment upon that head, would be both fuperfluous and
naufeous. I fhall only mention, of the many parlia-
mentary authorities that might be cited in confirma-
tion of what has been faid, as to the fenfe parliament
has had of the binding force of the common law upon
the houſe of commons, what Sir Edward Coke is
mentioned in the journals to have faid, in reporting
a conference with the chancellor about a petition to
James I. in the 18th of his reign, That he had an-
fwered the chancellor, that the houfe had refolved,
not to alter the articles which were grounded upon
the law of the realm-That they had not poteftatem
addendi or minuendi. And when it was propofed, in
the cafe of Sir John Bennett, after his expulfion, not
only to fecure his perfon, but alſo to ſecure his eſtate
that he might not difpofe of it, Sir Edward Montague
anſwered in thefe words, as entered in the journals;
"Not to meddle with his eftate-no precedent:
"not this warrantable by the common law."
The anſwer, ſhort as it was, had it's effect; it made
an end of the propofition. Such is the power of the
law. And fo true was that ancient faying, plebs eo
libere agitabat quia nullius potentia fuper leges erat. In
that country only can the people be free, where the
law is above every other power.
So far however am I from fetting up the authority
of the common law, in fuch a manner as if I wiſh'd
to fhun battle as to the law of parliament, that fonorous
term which has been echoed and re-echoed with fuch
force upon this occafion, that to it, principally, here
I dedicated this particular head, on purpoſe to examine
the weight of this great authority, this decifive argu-
ment for the power and right arrogated to the houſe
of commons.
>
The
[ 265 ]
The gentlemen on the other fide have, indeed,
made a fort of ſpell of the law of parliament, an
enchanted wand, which caufes the moſt facred and
inviolable rights of the ſubject to jump out of their
focket, as joints that fuffer a diflocation. We have
not fo learned the conftitution. To us the law of
parliament is a very high authority, a great and re-
fpectable branch of the law of the land. But as the
parliament fubfifts by it's own proper laws and cuftoms;
fo we apprehend thefe, as all the other laws of the king-
dom, exift for the prefervation of the rights and li-
berties of the people, which the parliament itſelf was
inftituted to ſupport and defend. And whatever be
the authority or uſe of the law of parliament, we
conceive, it will be found that the actual exerciſe of
the judicature of the houſe of commons, or the de-
termination of particular caufes competent to their
juriſdiction, reſpecting elections, are the things it has
but leaſt to do with.
That we may not (to ufe a vulgar phrafe) feem to
ſpeak without book, we will venture it as the doc-
trine to be collected from the writings of thoſe learned
authors, who have profeffedly treated of the lex & con-
fuetudo parliamenti before or fince Lord Coke, down
to Dr. Blakiſton's able and uſeful commentary upon
the laws of England; that thereby, (at least in the
higheſt and moſt proper, if not the only juft fenfe,)
nothing elſe is meant or underſtood, than thoſe great
principles which grow out of the conftitution, the
make and frame of parliament; thofe eſtabliſhed
uſages and cuſtoms of parliament, which fettle the
mode of it's fubfiftence, and the form of its proceed-
ings: I will add too, that aſcertain and mark out the
extent and limits of its power. For omnipotent as
parliament is, (by a figure of fpeech, not wholly un-
exceptionable even in refpect to itſelf,) fometimes
faid to be, it ought never be forgotten, that the con-
ftitution
R 4
[266]
}
ftitution is above it, and bridles it: And if that
curb ever lofes its power, the conftitution itſelf is
no longer in being.
The law of parliament (but a little to diverfify the
idea expreffed under a former head,) is that which
moulds its form, bounds its jurifdiction, and regu-
lates and reſtrains its agency; either in the whole
branches jointly, or in any of the three eftates fepa-
rately. It is not however ſo eaſy, by any general
characteriſticks, rules, definitions, or defcriptions, to
convey a diſtinct idea of what is underſtood by the
law of parliament. A few indifputable examples of
it will have a better effect to fet the matter in a clear
light, than much abftract reaſoning.
It is the law of parliament, that though parlia-
ments cannot be abrogated, but must be frequent,
yet they cannot meet without being called by the
ſovereign; nor be opened but by the king in perfon,
or his commiffion under the great feal.
It is now the undisputed law of parliament, that
the power of judicature, properly fo called, refides
in the houſe of lords. "The proceeding on the writ
"of error (fays Lord Coke) is only before the lords
"in the upper houfe, fecundum legem & confuetudinem
"parliamenti."
The commons will not deny it to be the law of
parliament, that aids to the crown and grants of
money muſt begin in their houſe. And when the
commons, in the great conteft with the lords infifted
upon this as their peculiar privilege, and one of their
fundamental rights; they explained that to mean a con-
ftant ufage or custom according to the principles of
parliament. On this occafion it was, they told the
lords, that when they found the contract or record
for their exclufive judicature, they would ſhow them
indorfed
1
[ 267 ]
indorſed on the fame roll, that for the commons ex-
clufive right to grant money.
Lord Coke, ſpeaking of the act of parliament for
fecuring the freedom of elections, occafioned by the
foolish commandment foifted into the writs, not to
chooſe lawyers, fays, that act was but declaratory of
the antient law and cuftom of parliament.
The fame author, when he mentions the antient
anfwer to be given by the commons, as to new de-
vices for aids to the king, that they dare not agree
without conference with their countries, adds, where-
by it appeareth, that fuch conference is warrantable
by the law and cuftom of parliament.
Other inftances of the law of parliament, refpe&t
the mode of its ſubſiſting.
Of this fort are theſe that the lords and commons
muſt now fit in feparate houfes-that the commons
have the choice of their own fpeaker, fubject to the
approbation of the king-and that the great officer
of the crown who holds the great feal, when it is not
in commiffion, has a right by office, to be ſpeaker
of the houſe of lords though he ſhould not be a peer
-That neither houſe can exercife their own powers,
unleſs the other is being at the time, becauſe each is
but a part of the parliament.
The following are inftances as to the form of
elections.
Lord Coke fays, " after the precept for election,
"there ought, fecundum legem & confuetudinem par-
"liamenti, to be given a convenient time for the day
"of election. And any election or voices given before
"the the precept be read and publifhed, are void.
"and of no force: For the fame electors after the
precept read and publiſhed, may make a new elec-
«C
❝tion,
م
[268]
1
tion, and alter their voices fecundum legem & confue-
«tudinem parliamenti."
Under the law of parliament alfo, in fomewhat of
an inferior fenfe, is comprehended what is ufually
ftiled the courſe of parliament, or the method of pro-
ceeding in accufations, petitions, bills, committees and
the like; the forms as to all which are fettled by
the eſtabliſhed ufage and cuftom of parliament.
Therefore Lord Coke, fpeaking of fome antiquated
forms fays,
"It was the antient law and cuſtom of par-
"liament, that when any man was to be charged in
"parliament with a crime, the king's writ was di-
"rected to the ſheriff, to fummon the party to appear
"before the king in the next parliament." And
"for petitions to be preferred into the lords houſe
"in parliament for the countries aforefaid, this was
"the antient conftant law and cuftom of the parliament,
"continued until this day." And petitions being
timely preferred, have been anſwered by the law
and cuſtom of parliament, before the end of the
parliament.
To ſpecify no more particulars; it is the law of
parliament, that there fhall be freedom of fpeech, and
the king's name never mentioned, left it ſhould
reſtrain debate; and
and that nothing that paffes in
parliament ſhall be taken notice of in any other court.
And it is the great and fundamental law of parliament,
that the commons may impeach any ſubject for crimes
againſt the ſtate and bring him to his trial before
the lords.
To all theſe muſt be added, what, in my own
apprehenfion, has the chief, or rather, the only im-
mediate relation to the prefent queftion, viz. That
it is the unquestionable law of parliament, that the
houſe of commons are the fole exclufive judges in all
*tters concerning their own elections.
But
f
Y
}
[269]
But if this laſt mentioned be the only part of the
law of parliament, which has any immediate con-
nection with this buſineſs, it may not unreaſonably
be aſked, to what purpoſe we have loaded ourſelves,
and incumbred our reader, with fo many other ex-
amples. We confefs it requires an apology; and
the anſwer to the queftion is this.-That we have
not done it for the fake of readers of any learning,
of whom, we rather beg pardon for the interrup-
tion. Such readers know what the law of parliament
really is, and are in no hazard of being mifled by
a mere found. But the term has been fo bandied
about, as a kind of myftical expreffion, and the gen-
tlemen who build their whole argument upon it, in-
ftead of taking any pains to explain what it means,
have fo veiled it under a facred obfcurity, that it
was really neceffary to let it be ſeen, that it might ap-
pear from itfelf, that there is no myftery in it.
The law of parliament has been held out as a
ſpecifick, to cure every objection to all proceedings
of the houſe of commons, in regard to declaring
or inflicting of incapacities, only with a round af
ſertion, that by the law of parliament, the houſe of
of commons has the right and power to declare an
incapacity by their own refolution fingly; meaning
always, that whatever they do declare to be an in-
capacity, is, and muſt be ſo, be it never fo much
without, or contrary to the law of the land, and to
common right. This has been fo much the cafe,
that it became abfolutely neceffary, for the fake of
thoſe who wish to fee the great point in queftion
ſettled upon it's true foundations, but are not them-
felves fo converfant with conftitutional learning, to
give a juft account of this fame law of parliament:
And we thought it could be done in no way with
fuch fatisfaction, as by pointing out from acknow-
ledged
[270]
}
ledged authorities, fome of the principal, and moſt
material examples of it, in it's different orders and
degrees; by which any reader may fee with his own
eyes, and judge for himſelf, upon the authority and
analogy of the law of parliament, what influence it is
of in the prefent queftion.
Now, that this has been done, it may be refer-
red to any one, the fimpleft we can, conceive to be
our reader, what there is in this law of parliament,
or that can, by any engine, be fqueezed out of it,
to authorize, or warrant this doctrine, "That the
" houſe of commons can, by it's own reſolution
❝fingly, make or declare any thing to be an incapa-
"city, or adjudge any man to be ineligible, upon an-
"other ground or foundation, befide the law of the land.”
P
Admitting, and we do not deny it, that by the
law of parliament, the houſe of commons has the
exclufive right to judge and determine in all matters
of elections; we only afk, if it would not be as good
logick, and as good fenfe, to argue, that becauſe
the houſe of lords have alfo their exclufive right of
judicature in matters of peerage, they might not,
by a reſolution of theirs, adjudge a peer, or the heir of
a peerage, incapable of fitting in their houfe, becauſe
they were pleaſed to think he was not fit, company
for them.
Such a perverfion of the law of parliament, is not
more abfurd, than it would be to fay, that becauſe
there is what is called the crown-law, (fignifying
fome ſpecial prerogatives or priviledges, which, for the
intereft of the publick,, the king has in certain legal
proceedings) which crown-law, is as truly a part of
the law of the land, as the the law of parliament,
or any part of the common law is: 1 fay, that
becauſe there is fuch a thing, therefore the king's
judges might, in any fuit where the crown is con-
,cerned
[ 271 ]+
象
​❤
cerned, make any thing they pleaſed to be law for
the king, and decide contrary to all law, and to every
right of the ſubject, in favour of the crown; which
would be a tyranny unknown, even under the defpo-
tiſm of the French monarchy.
To demonftrate that the houſe of commons have
not the right or power contended for, we join iffue
upon that very article of the law of parliament, upon
which alone it is attempted to be fupported. For
we ſay, the only power that law of parliament gives
them, is a power of judicature, which muſt proceed
judicially, determining according to law, and necef-
farily excludes the power of making law. We appeal
to the very elements of juriſprudence, to teftify that
judges can only interpret and apply the law. We
call in every known example of the law of parlia-
ment, to prove that by it, the power of the houſe of
commons, in the inftance in queftion, is bounded
by the law of the land, and the common right of the
fubject, and not left to their own will, or to any ar-
bitrary diſcretion of theirs. We fummon up the firſt
and fundamental principles of the conftitution, which
proclaim with a loud voice, that the houſe of com-
mons cannot have the power arttributed to them:
And that the moſt effential ideas of the being of par-
liament, the wideft notions of the unalterable law
of parliament, exclude it from the whole fcope of
their moſt extended juriſdiction and authority.
•
If to borrow the words of the lords in their conteft
with the commons about another power, the gentle-
men will ſhow us any contract, and record, which this
héteroclite power, is, contrary to all principles, refted
in the houſe of commons by force of fome pofitive
conſtitution; or, to adopt the language of the com-
mons themſelves, if they will fhow us that eſtabliſhed
custom and uſage of parliament which warrants it;
- if
1
272 1
*
if our opponents will ut point out a fingle book
upon the law or conftitution, in which it has ever
been faid, that the power now claimed, is founded in
the law of parliament, or in any law of the land, they
may fay fomething that will deferve an anfwer. But
the first pretenfions to power, to power apparently
contradictory to principles; pretenfions no fooner pro-
pofed, than difputed; and pretenfions vifibly thwarted
by the plaineſt ideas of the conſtitution ;-Theſe re-
quire fomething more than a mere claim or affump-
tion, fomething more than one attempt to put them
in ure, to procure acquiefcence or fubmiffion.
The law of parliament is not the property of par-
liament, or made for them only; it is the eſtate of
the ſubject, and all the people have an intereſt în it.
Therefore it was well faid by the commons in their
proteftation to Charles I." That the liberties, fran-
"chiſes, priviledges, and jurifdiction of parliament
are the antient and undoubted birth-right and in-
"heritance of the fubjects of England." And Lord
Coke in his ftile, not improperly fays, "the laws,
66
1
cuſtoms, liberties, and privileges of the court of
"parliament, are very heart-ftrings of the common-
"wealth." We are all therefore bound, for our own
fakes, to fupport and defend the juft rights of parlia-
ment as we would preferve and fecure our liberties,
which have alſo been called the life and blood of the
common-wealth, and are the great inheritance of the
people, whereof the other is but a part, and a part va-
luable no farther, than as it tends to maintain the
whole. But we muſt take care that the two go hand
in hand, and the one never incroach upon the other.
With regard to the point in debate, the power of
the houſe of commons as to elections and returns, we
have Lord Coke's authority in the place already cited,
that the act of parliament for fecuring the unrestrained
freedom
[ 273 ]
(C
66
freedom of elections, was but declaratory of the law of
parliament. His words are worthy to be obſerved.
He tells us that ſtrange innovation in the writs pro-
hibiting to choofe lawyers, was wrought by the
king's letters, by pretext of an ordinance in the
"lord's houfe. But that at the next parliament, at the
grievous complaints of the commons being inter-
"upted of their free election by thofe letters, which
were (that is in their own nature were) letters of
juftice and right, it was enacted that elections fhould
"be freely and indifferently made without command-
66
"C
·66
ment of the king, by writ, or otherwiſe, or of any
"other, which, fays Lord Coke, was cloſe and prudent
"falve, not only for that fore, but for all others in like
« caſe."
I fhall leave this quotation to apply itſelf in fome
particular parts. Suffice it here to fay, I do not find
the houſe of commons excepted from among thoſe by
whofe commandment the freedom of election was not
to be reſtrained. Lord Coke fays exprefsly, that “he
which was eligible of common right, could not be dif-
abled by the ordinance in parliament in the lord's
houfe." And an ordinance of the houſe of lords was
more prepofterous than an ordinance of the houſe of
commons to the fame purpoſe would be, only in this,
that elections of members of the houſe of commons
ſeem to be a matter quite out of the road of the peers.
But if we would preferve the virtue of Lord Coke's
Catholicon; if we would have a fure falve for every
fore in a like cafe, we muft maintain this fundamental
law of parliament, that was only declared, as he tells
us, and confirmed by the ancient ftatute that all elec-
tions muſt be free, notwithſtanding any commandment
of incapacity contrary to law by any power what-
ever.
A re-
[ 274 ]
1
A refolution of the houſe of commons making inca-
pacities which the law has not made, is but an ordi-
nance of that houfe; at leaft if Lord Coke underſtood
any thing of the matter it can get no other name, för
his definition of an ordinance is, " that it wanteth the
"threefold confent, and is ordained by one or two of
"the branches of the legflature." By the law of par-
liament, fuch an ordinance is not of force to bind the
people and it is a good caution which Lord Coke
gives, as to the truft and confidence proper to be had
in the different branches of the parliament, "always
provided, (fays he,) that both lords and commons
keep them within the circle of the law and cuſtom
"of the parliament." Thefe indeed are the repugula
juris, and if either houfe of parliament break down
thoſe barriers, they overleap the mounds of the con-
ftitution; they do not fimply act without power, but
they invade the right of the fubject, and commence
hoftilities againſt the conftitution itſelf.
If the law of parliament is adhered to as the mea-
fure of the power of parliament, every right of the
fübject will be fafe. But if every thing is to be
fanctified under the name of the law of parliament,
which fhall at any time be claimed as a power by
either houſe of parliament, the whole rights of the
nation may be fet a-float. That houſe of commons
which fubverted the conftitution, and from whoſe in-
numerable difabling expulfions, the writer of the
Confiderations has drawn his authorities for expulfion-
incapacity-They pretended, in defence, of their or-
dinance about the militia, by which the crown was
ftript of one of its moft indifputable prerogatives,
"that they were thereunto warranted by the funda-
"mental laws of the land." Had things been in
their natural ſtate, it was a direct attack upon the
conftitution; and by not defending the meaſure upon
the receffity of the Cafe, in an unnatural ſtate of
things,
}
}
2
t
[275]
things, they expofed an act neceffary for the defence
of the people, to the reproach of being a wanton
ufurpation, and a dangerous example of pretenfion to
illegal power.
い
​I am not fond of appealing to any thing faid by
the unhappy king with whom that houfe of commons
had to do; being fatisfied that his own, and his wife
father's arbitrary maxims of government, which firſt
led them to break in upon the facred law of parlia-
ment, were the fource of thofe national misfortunes,
`which ended in the fubverfion of the conftitution: yet
many a true word did Charles the Ift, taught by
counſellors more fettled than himſelf, fay in his dif
putes with his parliament, if he had been fincere
enough to mean what others put in his mouth to pro-
nounce, or fo well adviſed, as to act as they made
him ſpeak and I cannot help citing the words of one
of his memorials, which exprefs fuch found conftitu-
tional doctrine, as to the rights of the houſe of com-
mons, that affent, I think, cannot be refufed to it.
"Whatever privileges, (faid he,) or liberties they
<<
had by any law, or ftatute, the fame fhould be in-
"violably preferved to them, and whatever privi-
leges they enjoyed by cuftom, or uncontrouled and
"lawful precedents, his majefty would be careful to
preferve."
66
Law, ftatute, cuftom, or uncontrouled and lawful
precedent, are the conftitutional pillars of the juſt
power of the houſe of commons. But to votes, or-
dinances, or reſolutions in deftruction of the law, and
fubverfive of the fundamental rights of the fubject,
this language must be applied, though it be the lan-
guage of an unhappy prince who died a martyr only
to his violations of the conſtitution. "Votes"
(faid he, on occafion of the militia ordinance,}
"which we muft declare and appeal to all the world
VOL. III.
- S
in
1
[ 276 ]
L
}
"in the point, to be the greateſt violation of our
privilege, the law of the land, the liberty of the
"fubject, and the right of parliament, that can be
imagined.”
<6
All votes, which may in any degree incur fuch a
cenfure, are not alike dangerous in their effects; but
the leaſt hurtful of them, is of evil example. Every
vote of a houfe of commons, that is contrary to the
known law of the land, is against the law of parlia-
ment, for it is the firft law of parliament, that the
laws of the land are facred: and parliament is either
directy or indirectly the fountain of them all. Every
vote that attempts to make law, or that deprives the
fubject of his common right, which is undoing the
law, is contrary to the law of parliament, becauſe it
is the higheſt law of parliament, that one branch of
the legiſlature can neither make nor repeal law.
Indeed, were it otherwife, how could the houfe of
commons, as the great confervator of the liberties of
their country, thunder out their anathemas againſt
judges who betray the laws of England, and bring to.
condign puniſhment (as they often have done) the
greatest offenders, who have dared to fubvert the
rights of the people.
No votes of the fort we have mentioned, can pre-
tend to a better father (and it is enough to damn
them) than the infernal refolutions of that execrable
rump of a garbled houſe of commons, (by that time-
thoroughly purged of all virtue, through means of
the grand ſpecific of expulfions and diſabilities,)
which ſteeped their hands in the blood of a king,
whofe tragical cataſtrophe, though he did deferve to
loſe his crown, almoft turns all refentment from him,
to the men who murdered the conftitution under pre-
tence of refifting his attempt to overthrow it. To
the refolutions of thoſe men, however, we must do the
juſtice
[ 277 ]
A
juſtice to acknowledge, they were regular and fyfte
matical; for they refolved firſt, "that the commons
"of England affembled in parliament, had the fu-
preme authority of the nation;" after which it
was very eaſy to refolve, as the next did, "that
"whatſoever was enacted and declared law by the
"commons of England affembled in parliament,"
(which by declaring what they did, they manfeſted
themſelves not to be)" had the force of law, and all
"the people of this nation were concluded thereby,
although the confent and concurrence of the houſe
"of peers be not had thereunto."
A juſter notion of the power of the houſe of com-
mons, I will borrow from the words of that very Sir
Edward Deering, whofe early expulfion by the ſame
houſe of commons, the writer of the Confiderations
has celebrated, and from one of thoſe ſpeeches of his,
for publiſhing of which he was expelled, and diſabled
according to their faſhion from which, by the bye,
wẹ may judge if the fpirit and temper of fome of
thoſe diſabling expulfions, which are quoted from
that parliament, as authorities and precedents to us at
this day. In the debate on the declaration for refor-
mation in certain articles of religion, in which the
lords refuſed to concur, he thus expreffed himſelf.-
"The intent of your order to me feems doubtful,
" and therefore I am bold, for my own inftruction to
propound two queries. Ift, How far an order of
"this houſe is binding ?"-
ર
66
out of doubt) are powerful,
66 upon the laws of the land.
56
}
"Your orders (I am
if they be grounded
Upon that warrant we
may by an order inforce any thing that is undoubt-
"edly fo grounded; and by the fame rule, we may
"abrogate whatfoever is introduced contrary to the
" undoubted foundation of our laws. But, Sir, this
"order is of another nature, another temper, eſpecially
"in one part of it, of which in particular at fome
"other
S &
[278]
"other time. Sir, there want not ſome abroad, men
"of birth, quality and fortune, fuch as know the
<c
sc
ftrength of our votes here, as well as fome of us (I
ſpeak my own infirmities) men of the beſt worth,
"and of good affiftance in us, and no way obħoxious
"to us. They know they fent us hither as their
"truſtees to make and unmake laws: they know they
"did not fend us hither to rule and govern them
.
by arbitrary, revocable and difputable orders, ef
"pecially in religion. No time is fit for that, and
"this time as unfit as any. I defire to be inftructed
" herein."
I am happy ſuch a ſpeech has been preferved-
the ſpeech of a member of parliament, expelled and
difabled by a houfe of commons, but fuch a houſe
as never was before nor fince, and I truft will never
be again; without father, without mother, without
deſcent. I love to fpeak in the language of paft
times, and am much better pleaſed to uſe the words
of good men, who have borne teftimony for the con-
ftitution in bad times, than to call in kings, who have
wounded and oppreffed it: though that character ren-
ders their witneſs unexceptionable when it is in favour
of law and liberty. For which réafon I fcruple not,
once more upon this head, to avail myſelf of a royal
fpeech found in the mouth of Charles the IId. whom
I fhould wrong much, or rather fhould injure the
conſtitution more, if I cited him as a patron or friend
of it. That prince who, as a king, did not deſerve
better, and as a man deferved much worfe than his
beheaded father, from whom he was more diftinguiſh-
ed by his levity, lewdneſs and better fortune; than
by the virtue of fincerity; he too, was fometimes ad-
viſed, whatever he meant, to ſpeak a little of the
truth to his parliament, and with the fpeech in which
he opened that held in Oxford in 1680-1, he gives
them a piece of council, in doing which, I make no
doubt,
| 279 ]
i
5
}
doubt, he ſpoke more for his own fake, than either
for his parliament's or his people's. "I conclude,
"(faid he,) with one advice to you, that the rules
"and meaſures of all your votes, may be the known
"eftabliſhed laws of the land, which neither can,
"nor ought to be departed from, nor changed, but
"by act of parliament: and I may, (added he,) the
"more reaſonably require that you make the laws of
"the land your rule, becauſe I am refolved they fhall
"be mine."
In what has been faid, I hope I fhall not be ac-
cuſed of fetting the law of parliament and the law of
the land to loggerheads; or of exalting the one in
order to deprefs the other. I intended nothing
lefs; and if I miſtake not, neither my argument, nor
my authorities required that theſe two fhould be at
ſtrife with one, another. It is my opinion I found
them, and I imagine I have left them in perfect har-
mony together, mutually fuftaining and fupporting
each other. And from the view that has been given
of their natural relation and connection, the reader
may, I flatter myſelf, diſcover whether the law of
parliament, as it has been explained and illuftrated
by examples, either alone, (which is the way it is
ftated on the other fide,) or conjointly with the law
of the land, (in which view I have chofen, and the
conftitution, I think, warrants us to conſider it,) does
authorize the power contended for in the houſe of
commons.
The gentlemen have told us, the law of parliament
is part of the law of the land. But for that very rea-
fon, it muſt be confiftent with, and not deftructive
of it for the fymmetry of this beautiful conſtitution
does not admit of parts fo ill matched, or fo ill put
together, as to have them cutting one another's throats.
The truth is, the gentlemen themfelves feparate and
S 3
fet
[ 280]
fet at odds the two, which cannot be a true reprefen-
tation of either, though they were neceffitated by their
argument, to give it as the beſt they had to offer.
They raiſe up the law of parliament to depreſs the
law of the land. They make of it, a thing that
overtops and tramples upon the other; very ſuitable
to that ftile of myftery into which they have meta-
morphofed it. The law of parliament overfhadows
the law of the land, and like one of the arbores gra-
vis umbra, with an unbenign umbrage, enervates and
cauſes it to languiſh. But while we are preſent with
the law of parliament, we are not abfent from the
law of the land. Both theſe luminaries adorn the he-
miſphere of liberty, and unleſs the ſyſtem is con-
vulfed by the violence of domination, they will not
eclipſe one another. If they do, darkneſs and con-
fufion must reign where their kindly rays, each mov-
ing in its own proper orbit, fhould enlighten and
chear, guide and direct.
:
After all, I am aware it will be faid, I have forgot
one part of the law of parliament, the determinations
of the houſe of commons, which, as our authors
argue, being the decifions of a court of competent
jurifdiction fubject to no appeal, make law, and con-
ftitute, or at leaſt fix and aſcertain what is the law of
parliament, and the powers appertaining to the houſe
of commons by that law and I fhall be told I have
recognized as part of the law of parliament, the
conftant uſage and cuftom of parliament, upon which
the commons grounded the claim to one fundamental
right which I have acknowledged to be juft, and I
have alfo cited for conftitutional doctrine the words
of King Charles I. wherein he acknowledges, that
whatsoever privileges the houfe of commons enjoyed
by cuſtom, or uncontrouled, or lawful precedent,
ought to be carefully preferved. Upon which
ground, I have alſo ventured to give it as my own
opinion,
}
[281]
opinion, that the power of expulfion is fo eſtabliſhed
by uſage, cuſtom and uncontrouled precedents, as to
have become a part of the law of parliament.
It is all true, and I retreat nothing I have faid.
Here, alfo, I am ready to join iffue with the gentle-
men on the other fide, and therefore, ſhall now pro-
ceed, to the
Fourth, and laft ground, upon which it was pro-
poſed to try the fecond branch of the queftion, and
which, as I faid, is properly a branch of the laft
ground, but, as I intimated, I choſe to mention it
by itſelf, becaufe of the importance it would be
thought to be of, namely, "the precedents of general
"refolutions and determinations of the houfe of
CC
་
commons, which have been acted, as fufficient to
" eſtabliſh a power or authority in the houſe, by their
"own refolution fingly, to adjudge perfons to be in-
"eligible, or to difqualify them to ferve as members
"of parliament."
}
This brings directly to the confideration of the dif
ferent claffes, (of which both the author of the Cafe
and the writer of the Confiderations have given us
each a lift,) of perſons whom the houſe of commons
have reſolved and adjudicated to be not eligible or
difqualified.
The poſition of the author of the Cafe, is, " that
"it is by their refolutions only, that perfons of va-
"rious claffes are at this day difqualified;" in proof
of which he offers his lift and the propofition is
plain and explicit enough to mean, that there is no
law, other than that made by the reſolution by which
the perfons of thoſe claffes are difqualified. The
writer of the Confiderations, is fomewhat more am-
biguous in this article. He is to fhow, (as he ex-
preſſes himſelf in his 8th page,)" that the houſe of
S 4
6C com-
[ 282 ]
*
-
"commons have at all times, without objection or
<<<controul, exerciſed this jurifdiétion of declaring
"by their own refolution fingly, and without an
"act of parliament, what the law is as to the eligi-
r bility or diſqualification of members to ferve in
"parliament."
:
But, notwithſtanding the ambiguity of thefe words,
there is, in reality, no difference betwixt this writer
and the author of the Cafe. And I muft beg it
may be remembered, that, (as has been made
abundantly evident,) however, the writer of the Con-
fiderations in ſome places expreffes himſelf, he in the
whole ſcope and tenour of his argument, means by
the houſe of commons declaring what the law is,
their making the law themſelves and if he did not
mean this, there would be no fenfe at all in his rea-
foning. As to his words juft now quoted, they are,
whether defignedly or not, inaccurate in the higheſt
degree. For it muft indeed be a very confuſed
head, that would think of calling for an act of par-
liament to enable the houfe of commons, or any
other court of competent jurifdiction, to declare
what the law is; in a cafe legally brought before
them. It is inherent in the very jurifdiction fup-
pofed, that they can do this without an act of par-
liament,
But then, (and it is here this writer and we part ;)
the houſe can only declare that to be law, which is
to by force of an act of parliament, or of ſome
other equal authority, fuch as the common law is.
In order therefore not to be miſled by this Aurora
Borealis, inſtead of minding the writer's loofe and de-
fultory manner of expreffion, by which he puzzles his
reader, and I am apt to think confounded himſelf,
we muſt nicely attend to the point he has undertaken
to prove, which will appear perfectly to agree with
the
I 283 1
<
A
the poſition of the author of the Cafe. That is laid
down ſomewhat more clearly and explicitly in the 5th
page of the Confiderations, as the fecond head of
enquiry, viz. in theſe words, "If they, (the houſe
"of commons,) had a competent and exclufiue' ju-
"riſdiction to determine the queſtion, (meaning the
"queftion lately decided upon,) yet, whether they
are authorized by the law and uſage of parlia-
"ment, to declare by their own refolution, any per- .
"fon incapable of being elected who is not incapaci-
"tated by act of parliament ?" Where, if the wri-
ter had, inſtead of the words by act of parliament
faid in general, by law; or if he had added to his
own words theſe others" or is not incapacitated by
"the law of the land;" the real queftion he had to
confider would have been fairly and compleatly ſtated.
And I beg leave to fay, without fuch an alteration,
it neither is fairly ſtated, nor can be juftly argued
upon: for an act of parliament is not the only law of
the land, and therefore not the only thing by which
a perſon can be incapacitated to ferve as a member of
parliament.
}
The reaſon why the writer of the Confiderations
would not compleat the queftion, by the addition
with which I have fupplied his imperfect ftate of it,
will be very obvious, when we come to the claffes
themſelves; becauſe upon this little trivial circum-
ſtance of the authority of the law of the land, all the
claffes that either he or the author of the Cafe have
cited, moft clearly hinge, and the determinations
thereupon are fully fupported and juftified, as we fhall
preſently go on to ſhow.
}
Two general obfervations, however, I muſt pre-
miſe, before entering upon the caſes; and it is only
to recall the attention to the ftate of the gentlemen's
argument. Both of them for ever confound the au-
thority
[ 284 ]
thority upon which the houſe of commons act as
judges, or, in other words, the fource and foundation
of their exclufive jurifdiction, with the rule by which
they are bound to determine. The law of parliament
may be faid to be the former, but law in general, or
the law of the land is the latter. So the gentlemen,
and particularly the writer of the Confiderations, in
ſpeaking of their difqualified claffes, adopt this fort
of expreffion. "The houfe determined what is the
"law of parliament, or determined that this was fo
"by the law of parliament." But whoever takes
the trouble to look into the Journals, will find no
ſuch terms uſed there. In the debates upon cafes of
incapacity, the phrafe ufed by the parliament men is,
"This is, or is not warranted by law, or by the
common law :" Of which, inftances have been
mentioned as we went along. An attention to this
real diftinction, but obvious confufion in the rea-
foning of both theſe authors, will be neceffary in the
fequel.
3
The other preliminary obfervation is this: Though
I am myſelf ſatisfied all the claffes of difqualifications
cited by theſe authors, are capable of being reduced
to the law of the land, and will be found to be
grounded upon it; yet the gentlemen muft not under-
ftand it to be neceffary to our argument, or a thing
we are bound to undertake to juftify by fufficient
grounds in law, all the determinations in the houſe
of commons with regard to diſqualifications, or any
other ſubject whatever. The laſt indeed were a taſk
not to be undertaken by any body. But what we
affert, and are warranted to maintain, is this, That
whether the houfe determined juftly and according to
law or not, the law was the only ground they pretended
to go upon in their determinations: we mean the law
in general, and not what theſe authors are pleaſed to
call
[ 285 ]
1
call the law of parliament, to which they confine
every thing. We affirm, the rule of determination
always was ſuppoſed to be a law in being, antecedent,
and external to the houſe of commons, and to their
own fingle authority; and that they did not pretend
merely to refolve incapacities, or to make or declare
them fingly, by force of their refolutions, without,
and independent of law.
Theſe obſervations premiſed, we ſhall take the claffes
in the order in which they are mentioned by the wri-
ter of the Confiderations. And his firft clafs is,
Aliens, which the author of the Cafe alſo cites, but
fays no more of it than this, That it was refolved,
the election of Mr. Walter Stewart, being no natural
born fubject, was void.
To ſpeak properly, and according to the diftinc-
tions we took in a preceding part of theſe papers,
this is a caſe of want of capacity, rather than of in-
capacity. For an alien, is by ftate and condition, ci-
villy incapable of any fhare in the peculiar privileges
of the community, not having a civil relation to it.
An alien, if I may be pardoned fuch an expreffion,
has no conftitutional blood in him.
The writer of the Confiderations first mentions the
queftion which arofe after the acceffion of King James
the Ift. Whether aliens were eligible, and a doubt
then made, if even Scotchmen naturalized, could be
admitted to fit in parliament? But making a leap
from that fubject, he proceeds to tell us, "That in
"the debate on the queftion, whether a Scotch Peer
"could fit in the Engliſh houfe of commons, in one
"of the moſt able and moft conftitutional parlia-
"ments that ever fat, no man ever doubted the right
"of the houſe of commons, to determine what the
"law was, though no act of parliament exifted on
"the ſubject."
It
[ 286 ]
1
It muft, indeed, have been a very unable patlia-
ment, and very ignorant of the conftitution, which
could have dreamed of an act of the parliament of
England, exifting with regard to Scotchmen, whọ
were not fubjects of the crown of England, their
fitting in the English houfe of commons, before the
union of the two crowns. 1 fhould fufpect, when
the writer of the Confiderations compofed this pa-
ragraph, he was looking upon an act of parlià-
ment, alluded to in his work, make in the end
of Charles the IId's reign, for excluding Papiſts,
which, by what blunder, I know not, very abfurdly
binds the peers of Scotland, to take the oaths thereby
enacted.
After the union of the crowns, when any queſtion
occurred about the capacity of Scotchmen to fit in
the Engliſh houfe of commons, none but a very un-
learned man could doubt of the right of the houſe
of commons, to determine what the law was.
was. But
ftill, they could then, as well as now, only determine
what the law in being was, they could not legally
make a law by their reſolution; and though no act of
parliament exifted on the fubject, the whole parlia-
ment could never have been fo unread, as not to know,
that by the law of England, and indeed by the law
of nations, one that was not the liege fubject of the
crown of England, was incapable of the higheſt truſt
and privilege a fubject could hold or enjoy in the
kingdom.
The writer of the Confiderations, on mentioning
the particular determination cited by the author of
the Cafe, by which a Scotchman, ante natus, was ex-
cluded from the houfe of commons, reafons thus;
"It is not, fays he, a fufficient anſwer,, to ſay, that
is the law of the land: aliens are difabled by the
"law of the land." And with fome air of exulta-
tation,
[ 287 ]
1
T
tation, rather too hafty, he "begs to know from
"whence they collect this to be the law, but from
"the refolutions of the houſe of commons ?" Add-
ing, "it will appear from the the next head, that dif
"abilities created by the common law, and by law
"of parliament, are not always co extenfive." To
which he fubjoins theſe other unanfwerable queſtions,
"What entitled Scotchmen poſt nati, to be eligible
"into the houſe of commons before the union ?" (I
fuppoſe he means the union of the crowns, though
the fingle word is now generally uſed to expreſs the
union of the kingdoms,) "Was it by act of parlia-
"ment? if not, by whom, and on what foundation
"was the law fo declared ?"
If I may number myſelf among the they alluded
to in the first of thoſe queſtions, I fhall freely anſwer,
it would never have entered into my mind to collect
any thing whatever to be law, from mere refolutions
of the houſe of commons as fuch; and, at prefent, I
am ſatisfied, and hope I have faid enough to fhow,
that all diſabilities are created by law, and therefore,
that there can be no difference as to their co-exten-
fivenefs.
But with regard to the other puzzling queftions.
propoſed by this writer, I will anfwer them only by
aſking him fome. Did the gentleman never hear of
the famous judgment as to the post nati in Calvin's
cafe, as it is called, by which it was, upon the opi-
nion of the judges of England, in the exchequer-
chamber, refolved to be law, that a Scotchman, born
after the union of the two crowns, being born within
the allegiance of the King of England, was, by his
birth, naturalized? I am not now going to diſcuſs
the merits of that judgment, or the part King James
took in it, upon which I have fomewhere read this
fatyr, "That fuch power is in the breath of kings,
" and
}
[ 288 1
1
1
"and fuch foft ftuff judges made off, and that Lord
"Chief Juſtice Coke, by whom the judgment was
"reported, was fit metal for any ftamp-royal." It
is fufficient for me to ſay, this was a judgment of the
competent jurifdiction, (which thefe gentlemen fay
makes law, and I only argue is the proper way of
trying what the law is, and applying it,) and therefore
the law was to be collected elſewhere, than from the
refolutions of the houfe of commons.
I might alſo aſk the writer of the Confiderations,
if, fuppofing him to be a ftranger to the courts of
common-law, his parliamentary knowledge has not
yet reached to two great cafes, adjudged in parliament
within theſe very few years, in which it was decided
upon the common-law, that perfons born without the
allegiance of the crown, not the children of natural
born fubjects, (who are excepted by act of parlia-
ment,) are, in reſpect of their ftate, and by the fun-
damental principles of law, as having no natural al-
legiance to the country, incapable to take, by pur-
chafe or inheritance, lands in England; yet there
never exiſted an act of parliament upon the ſubject?
But furely he does know the act of fucceffion, which
excludes foreigners even naturalized, from fitting in
parliament, which fuppofed that before that law, a
perfon naturalized could fit, as in fact they did; and
one noble earl yet remains in poffeffion of a feat in
parliament, by the capacity derived from, and en-
joyed under the former ftate of the law. He like-
wife must know from the ftatute-book, as well as
the journals, that acts of parliament have been made
to remedy difficulties in fucceffion, to which natural
born fubjects were liable from defect of inheritable
blood in their anceſtors and relations, who were fo-
reigners.
་
If
1
a
[ 289 ]
If the writer were a learned man, he would know
from the books upon the public law, that the law of
England, in this refpect, is but conformable to the
laws of all other civilized nations, which have no par-
ticular conſtitutions to the contrary. And, upon the
whole, I think it may be concluded, that the incapa-
⚫city of aliens to fit in parliament, is an incapacity by
the known law of the land; and that when the houſe
of commons adjudged aliens to be incapable, they
only determined according to law, and did not, by
their refolution fingly without a law, make a law
of incapacity by their own authority, or adjudge
a perſon to be ineligible who was not incapable by
law.
The next claſs is that of minors, which the author
of the Cafe is wife enough not to mention, and had
probably too much law to meddle with: and indeed
to enlarge upon this cafe, unleſs to prevent this wri-
ter from faying he is not anſwered, would really, me-
thinks, be to infult the loweſt underſtanding; for this
is a natural incapacity, founded in nature. If a mi-
nor, and a major, or one of full age, are, as they
certainly are, contradictory terms; it is a contradic-
tion in terms, to fay that a minor may be, or may do
what a major only is capable of being or doing. In
what country under the fun, where there is any law
at all, is not minority an incapacity in civil life?
The laws of particular countries only fix the term
of minority and fcripture itſelf, fpeaking accord-
ing to the law of reafon, tells us, the heir, while a
child, is under tutors and governors until the time
appointed.
The gentleman ſays, "We all know that 'till the
"act of the 7th and 8th of William IIId, the prac-
"tice of minors fitting in parliament univerfally
" took place." I wonder how many minors this
writer
[290]
**
拿
​writer knows, or thinks every body knows, to have
ever fat in parliament; for he fpeaks of a cafe that
muſt have been very uncommon, as if it had always
exiſted, and every day occurred. Yet he has pro-
duced but one precife decifión on the point; and
however often it may have happened, and been over-
looked, the law was not thereby hurt or altered.
The incapacity of minority does not ſtand only
upon the opinion of fome great lawyers, as this writer
would feem to infinuate. Every lawyer has faid it:
every law-book contains it; and there never was a
minor who did not know it to be the law. Let our
author but look to Lord Coke's treatiſe on parliament,
he will there ſee, it is numbered among the tranfcen-
dent powers of it's juriſdiction, that it can, by an act
of parliament, adjudge an infant or minor to be of
full age, as he alfo fays it is to make a mere alien a
fubject born.
The reaſon of ever propofing or paffing a clauſe in
an act of parliament on this head, fuch as is in the
ftatute of the 7th and 8th of King William, could
only be, as is often done, to confirm and render ef-
fectual the common law, by inflicting fevere penalties,
which the claufe does; and alfo to make an end of
that abuſe of the houſe of commons, by determina-
tions of theirs, in particular cafes, granting in effect,
to minors, the veniam ætatis, as to fitting in parlia-
ment, which was flagrantly-againſt law. But to argue
as this writer doe's, from fuch a clauſe in a ſtatute,
that, before that act, minors were not incapable by
law, is no better reaſoning, than if the author wrote
to `endeavour to perfuade us, that polygamy was the
law of this country, when the bill was paffed in James
It's reign, to reftrain perfons from marrying again,
while their huſbands or wives were alive.
When
+
( 291 )
When the gentleman cites the fingle determination,
by which a perfon, acknowledged to be a minor, was
declared duly elected, let him compare that with
other cafes, alfo quoted, for a different purpoſe, ad-
judging that a perfon voted for by a minority was duly
elected, when the majority gave their votes to one
under a legal incapacity. Does he think a determi
nation allowing a perfon attainted to be duly elected
would be good law, or law of parliament? But I
ſhall only ask him, if the decifion he cites for the
minor, is the only arbitrary, abfurd determination,
any houſe of commons ever made? We have all
heard, fince our author will ſpeak in the name of
all, of their voting a church out of a town at one
time, and voting it into the town the next, for election
purpofe's.
As to all fuch determinations, the lines applied by
Lord Coke to an act of parliament paffed to attaint, a
fubject of high treafon, without regard to that effen-
tial law of natural justice to hear him, are the only
proper anſwer,auferat oblivio fi poteft; fi non utcun-
que filentium tegat!
Inftead therefore of "its appearing, (as our author
"fays,) from this fingle determination, that difabili-
"ties by the common law, do not always operate as
"fuch by the law of parliament, and that of this
<<
"C
difference, the houfe of commons are the fole
judges, and that in cafes, however unfit and in-
"convenient, the law, as they have declared it, can-
"not be altered but by act of parliament." Inftead
of this, I fay, it in truth only appears, which is no
new diſcovery, that in fome paft times, the houſe of
commons has arbitrarily fhaked itſelf loofe of the
incumbrance of all law whatever, and perhaps fome-
times of all reafon with it. But the difference fug-
gefted by our author, between the operation of dif
VOL. III.
abilities
T
A
[ 292 ]
+
1
abilities by the common law, and the law of parlia-
ment exifls no where but in his imagination: and
this doctrine that the law, as declared by the houſe
of commons, cannot be altered but by act of parlia-
ment, is fo far from being true, that the houſe itſelf,
by the variation of their decifions, till reftrained in
that article by act of parliament, has contradicted it in
hundreds of inftances. In itſelf the doctrine is too
grofs to be ſwallowed by any one who knows the leaft
of the conftitution, or of the law, or the powers of the
houſe of commons.
The writer of the Confiderations, for his third clafs,
fays, "The next defcription of perfons difabled to fit
"in parliament by law, are the clergy." And this
claſs is barely mentioned by the author of the Cafe,
with a reference to the refolutions of the houſe. But
if the clergy are, as the writer of the Confiderations
ftates it himſelf, diſabled by law, the cafe has no-
thing to do with the argument and it is clear the
houſe did not, in excluding the clergy, make a law
fingly by their own refolution: they only declared
what the law was, and determined according to law.
There is no doubt of it, that this alfo is an incapa-
city by the common law; or we cannot from books
or authorities, or ufage and cuftom, know any thing
to be the common law, no not that an eldeſt fon is
an heir.
The fact is, the clergy had their own parliament
or convocation which was part of the conftitution of
the kingdom, called by the king's writ, in which the
clergy were all preſent in perfon or by reprefentation,
and taxed themſelves, and the members enjoyed the
like perfonal privileges as the members of parlia-
ment: they could not be members of the houſe of
commons, the great foundation of whofe conftitution
and power, is the right of taxing the people, which
did
}
[298]
did not extend to the clergy. And though the right
of taxing by the convocation was given up in Charles
the IId's reign, which has made convocations of leſs
confequence fince; yet the convocation itſelf ſtill
fubfifts and no inftance is alledged of an election of
a clergyman as a member of parliament, fince the
change was made as to the power of taxing in the
convocation. The laft refolution cited on a claim of
that fort is in 1661, and it was not till 1665, that the
clergy gave up their right of taxing themſelves:
before which it was manifeftly abfurd and againſt the
conftitution, for clergy to pretend to fit in the houſe
of commons.
So Lord Coke gives as the reafon of the incapacity
of clergymen, (of which he ſpeaks as he does of that
of minors and aliens,) without the ſurmiſe of a doubt,
thus; becauſe they are of another body, viz. of
"the convocation." And he only takes it from the
refolutions of the houſe of commons. The words, as
quoted in the Cafe are," that Alexander Newale,
"being a Prebendary of Weftminster, and thereby
"having a voice in the convocation, cannot be a
"member of this houfe."--Which evidently imply
the cauſe of excluſion to be founded in the common
law and conftitution of the kingdom: and ſhew it was
not an incapacity merely by an arbitrary refolution of
the houſe of commons.
Our author might have ſpared himſelf the trouble
of his remark," that under theſe deciſions of the law
"of parliament," (as he calls the refolutions in
particular cafes as to clergymen,) "without an act of
"parliament, the clergy have acquiefced." In truth
they have acquiefced only in the law of the land:
and our author ſpoke more properly than he does in
this fentence, when he fet out with faying, as above
obferved, that the clergy were difabled by law, in-
T 2
ftead
·
1
[294]
}
ftead of being difabled by, what he here calls, deci
fions of the law of parliament; a term. I do not well
underſtand.
+
1
}
3
If it were neceffary on this head to add to clear
authority, one affecting to reduce things to their firſt
principles might, without extravagance, fay, there
feems to lie fomething very like, or near a-kin tó a
natural incapacity upon the inferior clergy, who, by
their temporal poffeffions bear no fuch immediate re-
lation to the crown, or to the conftitution of parlia-
ment, as the lords fpiritual have their antient baro-
nies, which is understood to be the foundatoin of
their feat in the houſe of lords. It is an incapacity
founded in the nature and reafon of things, which is
the firft and higheft of all legal incapacities. The
fubordinate clergy, by the indelible character with
which they are cloathed, are fuppofed to be neceffarily
and perpetually employed in another vocation, in fuch
à manner, that they cannot do the duty of a member
of parliament. They are by office, and by oath en-
gaged in the fervice of another mafter, whofe claims
are paramount to all others, in virtue of the unalter
able vow, by which they have lawfully devoted them-
felves to his work. They live at the altar, and ought
to ferve there; that being the duty even of their ci-
vil relation to the ftate, in the fphere in which they
have inrolled themfelves of free confent, and from
which they cannot, by an act of their own, be dif
charged. It is to fuch a natural incapacity or repug-
nancy, that the allufion, I apprehend is, when it is
faid in the courfe of the debate as to the attorney-ge-
neral in 12mo. Jac. ft-" that never any maſter of
"the rolls was of the houfe 'till 26 H. 8th, be-
"cauſe, before, all mafters of the rolls, 'till then,
"were in holy orders, and fo could not be of the
*houſe.
The
+
í
[ 295 ]
The fourth claſs mentioned in the Confiderations,
but not taken any notice of in the Cafe, is that of
ambaffadors. But the flighteft attention will fatisfy
any one, that this cafe is totally foreign to the writer's
own purpoſe, not fingly, becaufe the houfe of com-
mons have never reſolved perſons of this character to
be diſabled, which makes the reſolution upon the head,
no authority to the point in hand; but becauſe there
never could be a colour for pretending it to be an
incapacity or diſability and as, for its being, as the
writer of the Confiderations fays, a precedent for the
right of the houſe of commons to judge and determine
upon all diſqualifications and incapacities, we require
no authority to this purpoſe, becauſe we agree it to
be of their competent, inherent, and exclufive jurif
diction.
In the first place, with regard to ambaffadors choſen
or fitting in parliament, they are neceffarily ſuppoſed
to be poffeffed of the legal capacity of elegibility;
and that they are not by any law, or any act of the
law, diſabled or incapacitated. The utmoſt that can
be faid, is, that from their prefent fituation it is im-
poffible they can attend their fervice in parliament.
And on the other fide, the impoffibility is at beft but
temporary and uncertain, as their employments may
laft for a month, a feffion, or a year; or not fo long
as either. There could, therefore, be no pretence for
declaring them incapable of fitting even in a prefent
parliament. And if the houſe of commons had ever
refolved, that the office of ambaffador, deprived a
member of his feat, it muſt have been by fome form
or mode of fentence not yet known, as expulfion
would have been a moft incongruous one; and the
method of iffuing a new writ, as in the cafe of ac-
cepting an office, which now by ſpecial ftatute vacates
}
I 3.
a mem-
[296]
{
a member's feat, is founded on the ftatute, and appli-
cable only where it operates.
But the argument may be very fhort on this, point.
As there is nothing in the common law that infinuates
this to be an incapacity; fo the reafon of the thing
manifefts, it never could be conftrued as fuch. And
this fufficiently appears from the old general refo-
lution of the houſe of commons, in 1585, againſt
amoving, (as it is called,) ambaffadors; for it is not
confined to their cafe, but with them are joined in
the refolution, perfons in execution, or vifited by
fickneſs; as to whom we fee, anciently, queftions
had been ſtirred, which, to make an end of all
doubt, produced at length that general refolution,
moſt confonantly to reafon, declaring that perfons in
any of theſe fituations, fhould not in any wife be´re-
moved from their places, nor any other elected in
their ftead; the reafon of which tells itfelf, that
the fituations of ambaffadors, and theſe other perfons,
was but a temporary interruption to the duty of par-
liament.
At the fame time, I apprehend there can be no
doubt but the houſe of commons has, by the law of
its conftitution, an inherent power, (which therefore
is, and muſt be according to the laws of parliament ;)
to enforce and fecure the attendance of its own mem-
bers for the fake of the public, as well as for the in-
tereft of the particular conftituents: and confequent-
ly, if any member were unreafonably, and without juft
excuſe, to abfent himſelf from parliament, it would
be a good ground of expulfion, in order to let the
electors into a new choice.
Nay the pretence of the King's fervice might not,
under all circumftances, be deemed a fufficient reafon
to preferve a non-attending member in poffeffion of a
feat
[ 297 ]
feat, for a length of time inconfiftent with the ends of
repreſentation, and the duty every member owes to
his conftituents, and to the whole community. So,
upon the 23d of March, 1623, " Mr. Chub, burgefs
"for Dorcheſter, having written a letter to the Speaker,
"defiring to be excufed his attendance at the Parlia-
"liament, for that he was employed in his Majeſty's
fpecial fervice, Mr. Speaker moved to underftand
"the opinion of rhe Houfe; which was clear that he
ought not to be excufed: yet the cafe was further
"referred to the examination of the general committee
"for returns and privileges.”
Upon fuch a ground as this, however, only could
the thought of turning ambaſſadors out of the houſe
ever have been entertained. And, on the other hand,
it muft occur without being fuggefted, that as ambaſ-
fadors are abfent, and only occafionally fo, on the
public fervice, the cauſe of their abſence, if not of
fuch continuance as to be abfolutely incompatible with
the truſt of their conftituents, muſt be a good excuſe,
as they are doing the duty of their allegiance in that
character and ſtation, which, for a time, fufpends their
attendance on Parliament. It is fuperfluous, there-
fore, to add, what any one, who has dipped into the
public law, knows from the municipal conſtitutions of
ancient ſtates, the moſt famed for their civil policy,
that thoſe who were abſent reipublicæ caufa, inſtead of
lofing any right or privilege they had, were favoured,
on account of the fervice they were engaged in abroad,
with extraordinary immunities at home.
The conclufion is, that this wife and conftitutional
determination, (as the writer of the Confiderations
properly enough calls it) by which the houſe of com-
mons declared ambaffadors not to be incapacitated,
was as much a decifion within the bounds of law, and
agreeable to the law of the land, as any one by which
&
I 4
they
[ 298 ]
A
they ever adjudged perfons of any particular clafs to
be ineligible. It is founded on the principles of the
conftitution, and the rules of the public law. Nor
have the grounds of the determination any particular,
relation to, or dependance upon the law of Parlia-
ment; to which the writer of the Confiderations would
obliquely refer it, when he cloſes this article with
ſaying, "It appears from the ancient debates among
men of the greateft parliamentary abilities, that, at
"that time, no man ever dreamed that the houſe of
"commons had not a right to determine what the law
"of parliament was, though no act of parliament had
"ever been made on the ſubject."
This is only one of the ufual deflections in the rea-
foning of this writer; for, in the preceding article,
and in other places, he ſpeaks of determining what
the law, in general, was. But by oppofing the law of
parliament to an act of parliament, as he does in this
place, he means (and it is his conftant aim) to hide
all other law but theſe two, thereby to reduce every
ncapacity, not created by ftatute, to the law of par-
lament, of which the only idea he is willing we ſhould
entertain, is that of a refolution of the houſe of com-
mons.
The fifth claſs, and which is alfo mentioned by
both the authors, is that of ſheriffs and returning offi-
cers. All that the writer of the Confiderations pretends
to obferve upon it, in the way of argument, is, that
whenever the queftion," as to the eligibility of the
"the perfons of this clafs has occurred, the houſe of
commons have been confidered as the only court
having a right to determine the law." In anſwer to
which, we can only repeat what has been fo often ne-
ceffary to be faid, that this makes no fort of applica-
tion of the authority alledged to the queftion really in
debate; which is not, Whether the houſe of commons
ss
८८
?
"has
[ 299 1
« has the right to determine the law; but if, under
colour of determining, they can by their refolution
make the law inſtead of purfuing it?
/
We apprehend the determinations, as to this clafs,
do, as little as any other that is cited, prove that it is
the refolution of the houſe which makes the law, or
conftitutes the incapacity. On the contrary, it ap-
pears to us, that the law of the land is the ground of
the determination. One thing is certain, that in all
the debates on the fubject, the law, and not the power
or authority of the houſe of commons, is on all hands
appealed to, as the teft for trying the objection; and
the power of the houſe to exclude by a mere refo-
lution, is never once mentioned, though that would
always have been the ſhorteſt road to an end of the
debate. It is remarkable even, that in the debates
upon other queſtions of incapacity, particularly with
regard to the attorney general; fheriffs, and perſons in
holy orders, are fet up for illuftration and proof of the
law, as analogous and parallel examples of exclufions
by law. The language in the houſe on that occaſion
was this, "None to be excepted by law, but theriffs
in orders, and judges."
摹
​The cafe of fheriffs, and other returning officers,
differs from any of the foregoing; it is neither a caſe
of incapacity, nor want of capacity, but rather a de-
fect of the means of a legal return, or a want of the
means of a legal election, arifing from a cafual fitua-
tion by office, which renders it impoffible for perfons
of that character and defcription to be duly elected;
becauſe they are the judges of the election; or to be
duly returned, becauſe they are themſelves the return-
ing officers, and according to the notions of law,
which in this very inſtance are alfo founded in natural
reafon, cannot return themſelves.
That
[ 300 ]
That it is not an ineligibility, which is the groună
of the objection, and the foundation of the determi-
nation upon it, is clear from this, that Mayors, and
other returning officers in boroughs, might be elected,
returned, and fit for any other place, except that of
which they actually were the returning officers, at the.
time of the election; and it is an adjudged cafe, that
the feat of a member of parliament was not vacated
either by his being chofen a mayor, or appointed fhe-
"20th January, 1628, a motion was
"made, that Mr. Lynn being chofen mayor of Exe-
"ter, might be difcharged, and a new chofen; but
"ruled, that being a member of the houfe before he
"was elected mayor, he ought to ferve." The fame
was refolved 25th January 1605, as to Sir Jo. Peyton
returned for Cambridgeſhire, and afterwards appointed
a fheriff; which fhews, that neither a fheriff, nor a
mayor, is ineligible, or incapable of fitting in parlia-
ment, on account of being actually in office.
riff of a county.
It is acknowledged, that ſheriffs are now legally
chofen, even when they are in office, for any other
place but the county of which they are ſheriffs; though
that was anciently made a queftion, becauſe of the
clauſe in the writ prohibiting the ſheriff to return him-
felf, or any other fheriff. This, it is admitted, has
become obſolete, and loft its force, like the objection
of non-refiancy, and other things, which Lord Coke
calls merely directory. But this laft was not fo clearly
fettled to be the law at the time of Sir Edward Çoke's
cafe, in 1625, mentioned in the Confiderations; when,
however, the houſe would not turn out Sir Edward,
though they avoided an exprefs determination on the
point, it having been determined the contrary way not
many years before. Such a fort of thing would the
law of parliament be, if the contradictory decifions of
the houſe of commons conftituted it.
{
The
[301]
"
The objection, therefore, as has been faid, is mere-
ly to the election itſelf, and to the return. Or, to
vary the expreffion once more, it is to the poffibility in
this cafe, of particular perfons being duly elected, and
to the power of particular perfons to make a legal re-
turn. Which is plain from the terms of the refolu-
tions upon the head. "Refolved, (June 2d, 1685,)
"that no mayor can duly return himſelf to ferve in
parliament for the fame borough of which he is
66 mayor, at the time of the election."
6.6
Refolved, that no mayor, bailiff, or other officer of
a borough, who is the proper officer to whom the pre-
cept ought to be directed, is capable of being elected
to ferve in parliament, for "the fame borough of
which he is mayor, bailiff, or officer, at the time of
"the election."
<s
And, in the cafes adjudged upon the ground of
theſe general refolutions in the fame year, 1685, the
writs are ordered to be iſſued "in the room of (ſuch
"a one) who was mayor of the faid town, and was the
proper officer to whom the precept was directed,
" and who returned himſelf." From all which it
is evident, the objection is, in reality, not to the
member chofen, or to his capacity, but to the ca-
pacity of the returning officer; which is as effectual to
vitiate or void the return, as an incapacity in the per-
fon elected and returned, rendering him ftrictly ineli- .
gible.
Thus much being faid to bring the objection to its
true level, I apprehend it is not very difficult to make
it appear, that this is an objection, call it incapacity
or by what name you pleaſe, of the law. I fay, it is
an objection of the law; and it is here the argument
ought to meet the cafe. It is an objection which owes
its origin and force to the law of the land, and not to
the authority of refolutions of the houfe of commons :
}
}
which
[ 302 ]
*
which laft is the point the gentlemen have to prove,
and in proof whereof they have alledged this clafs as
an authority. The houſe of commons have only in
this, as in other cafes, by their refolutions and deter-
minations, applied and given effect to the objection
which is built upon law, independent of the houſe
of commons, and a binding rule for their decifions.
When I fay the objection, and confequently the de-
terminations upon it, are founded upon the law of the
land, I lay out of the cafe altogether the old and an-
tiquated act of parliament, or ordinance, as Lord Coke
calls it, diſabling fheriffs in 46 Edward 3d, mentioned
in the Confiderations, which would, if admitted as
ftatute authority for the incapacity, leave no room for
the queſtion in debate, fo far as it relates to fheriffs,
By thus putting them, and mayors or other returning
officers on the fame footing, we at once anſwer this
queſtion of the writer of the Confiderations, "What
"do you ſay to the fituation of the mayors, bailiffs,
"and other returning officers, againſt whofe eligi-
"bility there is no pretence of an act of parlia-
"ment ?".
It might, as to fheriffs, be fufficient to ſay, that the
prohibition in the writ of election is part of the com-
mon law, becauſe the writ itſelf is fo, and cannot
therefore be altered but by act of parliament. This
is Lord Coke's doctrine, and he is a better authority'
than Pryn, who has difputed the point with him, as
he has done many others,. in which his political opi-
nions, made him to differ with Coke. If the writ is
allowed to have the force of a writ of the common
law, it is indifputable, that it cannot be altered but
by ſtatute, or by fuch a prefcription as has rendered
obfolete part of the writ, in the form in which it now
ftands. For this we need no other authority than the
ſtatute book, by which we fee, that an act of parlia
ment
t
[ 303 ]
་
ment was neceffarý to deftroy fuch a monfter as the
writ, de hæretico comburendo. And as that part of the
writ of election, containing the prohibition of ſheriffs
to return themſelves, continued after the ancient act
of parliament made to fecure the freedom of elections,
in oppofition to the innovation made in the writ, by
inferting the abfurd prohibition to chufe lawyers, it is
thereby the more ftrongly confirmed, as a part of the
common law. This article having alfo retained its
force, when the other part of the writ, commanding
not to return any other fheriff, has confeffedly be.
come obfolete and of no effect, the confirmation is
Atill farther ſtrengthened.
With regard to mayors, and other returning officers
of boroughs, though the writ is not immediately di-
rected to them, yet as the fheriff's precept, which is
their warrant, is only a mediate communication or
tranfmiffion of the command of the writ, it may
be thought to carry with it the quality of the
writ itſelf, it being confidered as an incongruity that
the writ ſhould, in its conveyance, lofe any of its
virtue, or that the precept founded upon it, ſhould
be broader than itſelf. In this way the reſtraint affect-
ing the fheriff as a returning officer, may be thought
to go along to the mayors, and other proper officers
of the boroughs, acting in the fame capacity. So the
law, and the refolutions of the houſe of commons,
uniformly confider mayors, &c. as the returning of-
ficers; and in the refolutions, they are defcribed as the
perfons to whom the execution of the precept belongs,
and they are on all occafions treated and dealt with as
the returning officers, in ftatutes, and by the houſe of
commons, and the courts of law. Upon this ground,
the law is the fame, as to the ſheriff, and all mayors,
and other returning officers of boroughs, though theſe
act only in fome refpects fubordinately under him.
But
Ĉ 304 ]
But if there were no authority in the writ of election,
às a part of the common law, the objection is founded
upon the principles of reafon and natural justice, which
are acknowledged grounds of the law of England.—
Returning officers are not merely minifterial, but have
a judicial part of the act in all elections. They judge
of the votes, and, in the firſt inſtance, adjudicate the
merits of the election, and by their return as a verdict,
the feat is conferred. Now, if it be law, that no man
can judge in his own caufe, how can a returning offi-
cer return himſelf, that is, judge for himſelf. How
can he judge between himſelf and other candidates, or
between himſelf and the electors. That is common
law, it is the law of nature. An act of parliament to
make a man judge in his own caufe would be void.
The lord high chancellor of England, rather than
judge in his own caufe, muft devolve the juriſdiction
of the great feal even upon the houfe of lords.
No other anfwer is neceffary to what the writer of
the Confiderations fays, that by the act of Henry the
6th, a returning officer muft return himſelf, if he has
the majority of votes. That ſuppoſes an ordinary
courfe of things, and for further reply, vide the adju-
dication as to Colonel Lutterel's élection.
Mr. Serjeant Harris, like a lawyer who gives the
colour of his profeffion to every thing, upon one of
theſe occafions, put the ground of the objection upon
the form of the very indenture of return, "We know,
“faid he,) a man cannot make an indenture to himſelf,
"no more can he here between himſelf and the county,
"for there are required two perfons."
But before difmiffing this article, I will make one
obfervation, and chiefly becauſe it leads to a point of
general doctrine. Returning officers are the fervants
of the houſe of commons: and the houſe, as having
elections under their particular care, may make regu-
1
lations
[ 305 ]
A
lations that do not affect the effence of the election,
but in the nature of bye-laws, with refpect to the man-
ner of proceeding in an election. Of this fort was the
interpofition of the houſe pending the late election of
Middlefex.
Nobody could find fault if the houſe were to reſolve,
that the ferjeant at arms, attending the houſe as their
fervant, was incapable of being elected a member, or
that a clerk of the houfe of lords, or the gentleman
ufher of the black-rod, could not fit as a member of
the houſe of commons. Compatibility and incompa-
tibility, the law will take notice of, as well as of
city and incapacity.
capa-
So in the 7th of James I. Mr. Bowyer, a member,
having been appointed clerk of the parliaments, he was
removed; and the reafon affigned in the Journals is,
that by his oath he was bound to attend in the upper
houſe, and was not to underſtand the ſecrets of the
honfe. An honourable gentleman, who now makes a
great figure in parliament, fat long at the clerks table
in the houſe of commons, and, I dare fay, neither
himſelf nor any body elfe, ever thought he could have
procured himſelf to be returned a member, and have
continued in his office as clerk, fo as to rife from the
table when he thought fit, and take a fhare in the
debates, and then fit down again to write his minutes.
Yet he had all the while the ftrict capacity of being
eligible, as much as any other man in the kingdom.-
He changed his fituation, and now fits as a member,
fo much to his own credit, and the advantage of the
public. That is the difference between incompatibility
and incapacity.
The houſe has a peculiar jurifdiction, even over its
own members. I do not fay it can deprive its members
of their common right, but it may reftrain them as to
rights, which interfere with their fituation and duty as
members,
[306]
3
+
f
-
members, either in point of attendance, or indepen-
dence. Thus I apprehend it was a very legal refolu-
tion, which a virtuous houſe of commons came to,
penetrated with a ſenſe of the evils of the long pen-
fioned parliament. After ordering the papers to be
laid before the houfe, which related to the members
thereof, who had received allowances out of the ſecret
fervice money, they refolved, 30th December, 1620,
nemine contradicente, "That no member of this houſe
"fhall accept of any office, or place of profit from
"the crown, without the leave of this houfe, nor
any promife of any fuch office or place, during his
"being or continuing a member of this houfe."-
And,
66
کر
"That all offenders herein be expelled this houſe.”
In proof of Lord Coke's obfervation, that no good
motion was ever made in parliament, but it it took
effect fome time or other, this very refolution was after-
wards enacted, firft, by the ftatute of the 4th and
5th, and afterwards by that of the 6th of Queen
Anne, which provides, that if any member of the
houfe of cominons fhall accept of an office from the
crown, his election fhall be void, and a writ ſhall iffue
for a new election: whereby the falutary object of the
refolution of 1680 no longer depended upon the diſ-
cretion of the houſe of commons, either for renewing
the reſolution, or for granting, or refuſing leave to
accept of offices. What a refolution of the houſe
of commons could not do, in that it was weak
through the want of legiflative powers, a ftatute
did, by making what they intended by their refolution
a perpetual law: with this other advantage at the fame
time, that it made an eafier exit for a placed member,
without avoiding his feat by the difagreeable circum-
ftance of an expulfion.
Such
1
[ 307 1.
1
F
Such a refolution, however, was the only remedy
for the evil, while there was no act of parliament';
and it did not, I apprehend, exceed the juriſdiction of
the houfe of commons over its own members. Nor
will the argument I am now engaged in, fuffer me to
omit obſerving, how carefully the fanction annexed to
the refolution, is confined within the bounds of the
conſtitutional powers of the houſe of commons.—
They refolve that the offenders, as they are called,
fhall be expelled. But they do not refolve, that the
offenders againſt their refolution, fhall be difabled to
fit in parliament upon a re-election.
Such a reſolution would indeed have been highly
abfurd, as it would have been reſolving, that per-
fons holding offices under the government ſhould be
incapable of being in parliament, although there were
members fitting at the very time in the houſe, who
were in office when they were chofen. And no par-
liament ever did exift, into which fervants of the
crown were not elected. So that they might as well
have refolved at once to expel all placemen who were
then members, and thereafter to have admitted none
who were in offices of truft; which would have been
an incapacity with a vengeance, by a refolution, and
would have added one clafs more of difqualification
to thoſe our two authors have given us, and that the
moft brilliant of them all.
But the houſe of commons in 1680, knew better
things. Not like the parliament in 1640, that ex-
pelling, difabling, and ordinance-making parliament
which began with extending their own powers, and
ended with annihilating every power but their own
ufurped dominion, voting out of existence both the
king and the houſe of lords; not like them, the houſe
of commons 1680, kept within the line marked out
by the true law of parliament. A power to expel
VOL. III.
U
they
[ 308 ]
they knew they had, and that thereby the conſtituents
would be divorced from a member who had proſtituted
himſelf to the crown, and would be free to chooſe
another, when they thought him unfit to be longer
truſted as their reprefentative. But to a power of dif-
abling, thereby to cramp the freedom of election, in
cafe the conftituents thought their former member
worthy of their truft, notwithſtanding his having ac-
cepted a place, which might be with their confent,
though without leave of the houſe of commons ;-
to fuch a power they did not pretend, notwithſtanding
all the examples and authorities which our two authors
quote to us at this day, and could, if they had
been members of the parliament 1680, have quoted to
houſe of commons at that time, from the parliament
of 1640.
That the houſe of commons in 1680, entertained no
idea of a difabling power in them, is evident from
this confideration, that the fame reaſon that led them
to refolve that a perfon fhould be expelled for accept-
ing a place, would have alfo moved them to difable
him from being again elected, as the caufe of expul-
fion implied the opinion of the houſe, that a perfon
who had furrendered himſelf to the influence of the
crown, was unfit any longer to be a trustee for the
people.
The ftatute of the 4th and 5th, and that of the
6th of the queen, keep the fame conftitutional line
with the reſolution of 1680-1. For though the par-
liament undoubtedly could have made an incapacity,
as well as a voidance of the feat, in every cafe of ac-
cepting of a place, as it has actually done with regard
to fome offices, yet they are not only ſtopt with de-
claring the members election void, leaving him ca-
pable, as of common right to be re-elected; but an
exprefs
'
[ 309 ]
expreſs provifo is added, declaring, that he fhall be
capable of being again elected, as if his feat had not
become void. This was certainly not neceffary, be-
cauſe the common law would havé fecured that, but
it was very proper to make it clear by an explicit de-
claration, that there might not be room for a doubt
or question upon the fubject.
The obfervation which has been made does not,
however, exhauft all that is to be extracted out of
the refolutions of 1680, to which we have referred,
material to our prefent purpoſe. For, according to
the doctrine we have in this effay been combating, in-
capacity is the neceffary effect of expulfion: and there-
fore any member expelled under the fanction of thofe
refolutions, was, of courſe, difabled to be re-elected
into the fame parliament. The parliament in which
the refolution was made, was diffolved a very few
months after the date of it; and it does not appear
from the journals, that the reſolution had any actual
confequences.
Be that as it may, there is no need of the fact to
argue upon, for the refolution itſelf is authority fuffi-
cient to ſay, that a member might have been expelled,
by virtue, and in confequence of it. And a member
fo expelled muft, according to the doctrine of our two
authors, neceffarily have been incapacitated for that
parliament which expelled him.
Such an incapacity might have gone as far as go-
verment offices reach, which is no fhort way. This
would have been a moft powerful example for illuf-
tating the poſition of the author of the cafe-"That
"the houfe of commons have adjudged perfons inca-
"ble of being elected upon general principles of
"conftitutional policy." It is fo much more pro-
. U 2
per
[ 310 ]
per than any one inftance he has produced, that I
wonder how he omitted it.
Now I would only afk the gentlemen, If they real-
y think, or take upon them to maintain, that a mem-
ber expelled under this refolution of 1680, would,
ipfo facto, have been difabled and incapable of being
re-elected into the fame parliament? If they anſwer
no; they must give up their doctrine of implied or
neceffary incapacity. If they fay yes, they muft ad-
mit that, with an ill-humoured or factious majority
of a houſe of commons, the moft meritorious men
in the kingdom might have been incapacitated to fit
in parliament for the very reaſon which, of all others,
beſt qualified them to be there, and made it moſt
for the good of the common wealth that they ſhould
be members: and confequently, that either govern-
ment muſt have been deprived of the beft abilities
in the land, when the publick fervice, and perhaps
the fafety of the ftate required them, or the people of
England robbed of the moſt worthy repreſentatives.
This, I own is a fituation of things to bring the
country into, to authorize which I fhould require a
higher authority than that of a refolution of the houſe
of commons.
But the foundation and force of this argument, is
not confined to the refolution of the houſe of com-
mons, in 1680. It is further ftrengthened and illuf-
trated by the proviſion of the firft act of the 5th and
6th of K. William and Q. Mary. By that ftatute it
is enacted, "That no member of the houſe of com
<<
mons, ſhall be concerned in the collection, or ma-
"nagement of the duties granted by that act, or that
"ſhould thereafter be granted by any other act, ex-
"cept the commiffioners of the treaſury, and cuf-
"toms, and excife." The claufe is merely prohibi-
tory, without any pofitive fanction annexed to it,
declaring
+
[ 3 ]
*
declaring the feats void, as was done by the after
ftatutes of the queen, in the cafe of a member ac-
cepting of any office whatever from the crown. Nor
is there any exprefs provifion that a perfon concerned
in theſe duties, fhould be incapable of being elected
or fitting in the houfe of commons, otherwife than
as the provifion, that no member fhould be fo con-
cerned, virtually implied an exclufion from the houſe
of any perfon under that predicament.
Under this proviſion of the act of W. and M.
many members were expelled for being concerned
in the duties granted by that and fubfequent acts
of parliament, and the proceedings of the houſe
upon theſe occafions varied a little in form, though
fubftantially they were always the fame. In the first
inftances in 1698, the houſe refolved, that the mem-
bers, having been concerned, &c. contrary to the act
of the 5th and 6th, &c. be expelled this houfe. In
other inftances further down, as in 1700, the houſe
proceeded, by refolving first, the member having
been concerned, &c. was guilty of a breach of the
faid act of the 4th and 5th of K. W. and Q. M.
and then refolved, that the member, for the breach
of the faid act, be expelled this houſe *.
'
Now,
The following are all expulfions in confequence of the pro-
vifion of the act of the 5th and 6th of W, and M.
1.3
Feb. 10, 1698. James Ifaacfon, Efq; member for Banbury,
expelled,
13, 1698. Henry Cornith, Efq; member for Shaftf-
bury, expelled.
14, 1698. Sir Henry Furneſe, member for Bramber,
expelled.
Eod. Die, Samuel Atkinſon, Efq; member for Har
wich, expelled.
20. 1698. Richard Woolafton, Efq; member for Whit-
A
chuch, expelled.
· U Ž
In
I
[ 312 ]
Now, that a member fo expelled was incapable of
being again elected, while he held the office for which
he was expelled, may be legal reafoning enough be-
cauſe the prohibition of the ſtatute is, that no mem-
ber fhall be fo concerned, which, as already faid, im-
plies an exclufion. But if the perfon expelled gave
up his office, he then came to ftand upon the fame
footing, that a perfon expelled under the reſolutions
of 1680, would have done. And therefore, the quef-
tion which we put upon a cafe fuppofed under the
refolution of 1680, may be put upon the cafes under
the act of W. and M. Whether the gentlemen think
that a perfon expelled for a breach of that act, or
for acting contrary to it, but afterwards giving up
his office, and thereby taking himſelf out of the cir-
cumſtances which brought him within the law, would
then have been incapable of being elected into par-
liament, merely becauſe he had been expelled the
houfe; which could be the only pretence, of an in-
capacity affecting him after he had given up the
place, the holding of which was, by the ftatute,
rendered incompatible with being a member of the
houfe of commons ?
In thefe cafes there was but one refolution of the houſe, viz.
that the perfon being a member of the houſe of commons, and
having fince been concerned and acted, &c. contrary to the act
måde in the 5th and 6th years of his majefty's reign, for
granting feveral duties, &c. be expelled this houſe.
4
Feb. 19, 1700. Sir Henry Furneſe, member for Sandwich,
*
expelled."
20, 1700. Sir Girbert Heathcote, member for Lon-
don, expelled.
3
In the cafes there were two refolutions of the houſe. One,
that the perfon having fince his being elected a member, been
concerned and acted, &c. was guilty of a breach of the act,
made in the 5th and 6th years of his Majefty and the late
queen. By the other, it was refolved, that the member, for the
breach of the ſaid act, be expelled this houſe,
}
The
[313]
1
The gentlemen themſelves have given an exprefs
anfwer to the queftion, as to the caſe ſtated upon
this act: And their anfwer is, that a perſon, though
expelled for breach of that act, if he afterwards gave
up his place, was not incapable of being re-elected.
For they have argued, that Mr. Woolafton, who was
one of the members expelled for acting contrary to
ftatute, was not incapable of being re-elected into the
fame parliament which expelled him, after he gave
up his place: And upon that ground they have fup-
ported his re-election and fitting in the houſe as legal.
The force of the cafe, however, reduces them to
the neceffity of maintaining, that the word expel, was
improperly uſed in Mr. Woolafton's cafe; becauſe,
as they fay, he was only turned out of the houſe in
order to carry an act of parliament into execution.
What the gentlemen therefore admit upon the cafe
of Mr. Woolafton, is fufficient for our argument.
At the fame time, we cannot help telling them, that
their own argument upon that cafe is very far from
being juft or accurate. For in all the expulfions in
confequence of the act of the 4th and 5th of W.
and M. the houſe treated a members, accepting or
holding a place, contrary to the prohibition of that
ſtatute, as an offence which expoſed him to cenfure,
being as the refolutions in the latter inftances termed
it, a breach of an act of parliament, for which of-
fence they expelled the member. And, indeed, it
is impoffible to fay, that acting contrary to the act,
was not an offence in the proper fenfe of the word,
becauſe it was not only a breach of a prohibitary fta-
tute, but an attempt to elude a falutary law, made
on purpoſe to ſecure the purity and independence of
the houſe of commons.
+
Withal, as the gentlemen themfelves anſwered our
queſtion when applied to the cafe of King William
U 4
and
[ 314 1
and Queen Mary, in the negative, we do not fee how
they can give a different anfwer to the fame queftion,
when applied to a cafe fuppofed under the refolution
of 1680. But it is no matter whether they do or
not. For the act of W. and M. is a prohibition up-
on the members of parliament, of the fame nature
and effect with the refolution of 1680; and differs
from it only in this circumſtance, that the ſtatute häs
no pofitive fanction at all ennexed to it, whereas the
refolution has the fanction of expulfion annexed.
And as the houfe of commons treated the breach of
that ftatute, as an offence meriting expulfion, although
there was no exprefs fanction to that purpoſe in the
ftatute, it is clear, every expulfion in confequence
of that ſtatute, was of the fame nature with an ex-
pulfion under the refolution of 1680: And therefore
either both rendered incapable, or neither. And
the gentlemen fay, Mr. Woolafton, who was expel-
led in confequence of the ftatute, was not incapa-
citated confequently, neither would one expelled
under the fanction of the refolution of 1680 have
been diſabled.
We would therefore recommend to the gentlemen,
to re-confider their own diftinctions upon what they
are pleaſed to call an improper ufe of the word expel,
in the caſe of Mr. Woolafton. For when they compare
that cafe with the fanction of expulfion annexed to
the refolution of 1680, they muft, I think, ſee that
the term was juft as properly uſed in the one cafe,
as it could have been in the other; and not impro-
perly in either. But when they compare it with the
other cafes, which are in every refpect the fame with
Mr. Woolafton's, and obferve that in all of them,
as in Mr. Woolafton's, the word expel was uſed, and
the expulfion founded upon a refolution implied or
expreffed, that the member was guilty of a breach
of the act of parliament, I cannot conceive what
ground
[ 313
313 J
1
ground they will find left to argue that the word
expel, was an expreffion improper to have been
uſed in the caſe of Mr. Woolafton, more than in
any 'ftatute.
For that reafon indeed, we cannot perceive why
the attempt has been made to treat or argue upon
Mr. Woolafton's cafe, in a fingular one, when it
is but one of many in the precife fame circumftan-
ces, and in which other members were expelled for
the fame offence; the houſe of commons having ad-
judged it to be an offence in them all, and not in
one more than another, to be guilty of a breach of that
act. The only real diftinction in Mr. Woolafton's
cafe is, that after he gave up his place, he was re-
elected and fat in parliament; but that operates in
this argument no othewife than to prove, that every
other one of the members, expelled as he was for the
fame offence, and under the like circumftances, might
have been re-elected, and fat in the fame manner,
notwithſtanding their expulfion, if they had alfo given
up their places. Which makes Mr. Woolafton's cafe,
when confronted with the other cafes of expulfion
for the breach of the fame ftatute, amount to an
abfolute demonftration, that capacity was not im-
plied in expulfion, in the fenfe and underſtanding of
that houſe of commons which expelled Mr. Woolaſton,
and yet fuffered him to fit upon a re-election.
It alſo deſerves to be remarked, that it was not 'till
after the act of the queen, which declared the feat of
any member accepting an office void, and appointed
a new writ to be iffued, that the fhort method
now practiſed in purſuance of that ftatute came into
ufe. For before that, all the members who accepted
places contrary to the prohibition of the ftatute of the
4th and 5th of K. W. and Q. M. (which was the firſt.
law that created a difability by office, were formally
expelled.
[ 316 ]
expelled. And yet if the houſe of commons had
not confidered the accepting of the office, contrary
to the prohibition of the ftatute, or, in breach of the
act, as it is termed in the ſentences of expulfion, to
be an offence, and inflicted expulfion as a cenfure for
the offence, they might then as well as now, have
fimply ordered a new writ to be iffued in the room
of a member, who had accepted fuch a place as was
incompatible with his continuing a member, where-
by his feat was neceffarily become void.
But as they did confider the thing in the light
of an offence, and therefore expelled the members
acting in fuch offices, it neceffarily follows, that all
thofe expulfions, and Mr. Woolafton's among the
reft, were as effectual incapacities, as any expulfion
whatever, if the doctrine of our authors prevail.
But they have themfelves excepted Mr. Woolafton's
caſe, and therefore, with it, they muft give up all
the reft, as there is no difference between his cafe
and the others under the fame ftatute. And what
is more, as Mr. Woolafton was re-elected, which
fairly brought the question of incapacity into the
field, his being allowed to fit, is a judgment of the
houſe of commons, that his expulfion inferred no
incapacity and confequently that no expulfion did:
becauſe, from what has been faid, it is manifeft his
cafe was a common expulfion, and not an accidental,
improper, or inaccurate uſe of the word expel, as the
gentlemen have argued.
I had rather ufe a convincing argument, than con-
fident expreffions, and therefore I fhall not, after the
example of the writer of the Confiderations, fay what
has been laft offered is unanswerable and decifive.
It is fubmitted to the judgment of the reader. But
I own I cannot reconcile together the grounds of
the reaſoning we have juft concluded, and the
doctrine
-
[ 317 ]
doctrine" contended for by our opponents, under
either branch of the queftion. And am perfuaded
I fhall not be thought to have digreffed from my
fubject, by introducing the confideration of the re-
folution of 1680, as connected with the act of W.
and M. into this debate. I now fhall accompany the
writer of the Confiderations to the.
Sixth and laſt claſs or difcription of men menti-
oned by him, and alſo taken notice of by the author
of the Cafe, viz. perfons in execution at the time
of their election, who, it is faid, have ftood diſabled
by reſolutions of the houſe of commons, without an
act of parliament.
The ſhorteſt way to anſwer this clafs, would be
by denying the fact, that perfons under this defcrip-
tion do ſtand adjudged by the houſe of commons
to be incapable of being elected. I do not mean
to fay, the houſe of commons never did fo deter-
mine. But as in cafes adjudged in that manner,
they did not intend to make a law of incapacity by
their refolution fingly, but only to determine accor-
ding to the law, as they conceived it to be; we
have their own authority for it, that fuch determi-
nations were erroneous, becauſe the lateſt decifions.
contradict them. And this is but one more of the
many inftances to prove, that if we had no other
notion of the law of parliament, but that talked of
by theſe gentlemen, that it confifts of the decifions
of the houfe of commons, we ſhould really have no
fuch law at all, if a law means a fixed and binding
rule. We ſhould only have a fet of disjointed, in-
confiftent, and contradictory determinations, differing
as the pragmatical genius of the leading men in parlia-
ment difagreed at different times. But it will be ufe-
ful, and the manner in which both our authors have
treated
[ 318 ]
1
3
treated this matter, makes it neceffary to go a little
deeper into it.
1
5
The writer of the confiderations mentions the noted
cafe of Sir Thomas Shirley, in 1604, in which, he
fays, "The queftion, as to the difability of perfons
“in execution, was much agitated, but that the curi
"ous reading in thofe debates, is not exactly appli-
"cable to the prefent cafe, becauſe the writ of execu-
"tion, though it iffued before, was not executed
<c upon Sir Thomas 'till after his election." He far-
ther informs us, That during the dependance of that
cafe, a bill was brought into the houſe of commons
for difabling out-laws, perfons in execution, and re-
cufants convict, from being of the parliament; which
bill was rejected on the third reading, without one
yea. But the reafon of the rejection, he tells us, was
not "that the houſe of commons then thought that
"perfons under that defcription fhould be allowed
"to fit; but that they knew they were fufficiently.
"fecured from fuch a difgrace by the law of parlia-
"ment, as it then ftood; and that they had a right
"to determine upon that law, and did not chooſe
"to fubmit their legal powers to be difcuffed and
"decided upon by the other two branches of the
legiſlature:"-" And that it was, and continued
"to be the law of parliament, that perfons actually
"in execution were not eligible, appears (our author
fay's) from two cafes, which happened a few years
"after." One is the cafe of Mr. Gifford, who was
admitted to have priviledge (17th Feb. 1625) becauſe
it was found, on examination, that he was not in
execution 'till after his election.The other is the
cafe of Mr. Thomas Monk, who having been in exe-
cution before and at the time of his election, a new
writ was ordered (24th Feb. 1625) to iffue in his
room, as of a perfon incapable of being elected.
"C
<<
The
[ 31 ]
The author of the Cafe alfo cites the cafe of Sir
Thomas Monk; and he mentions another in 1661,
of the election for Leinfter, in which it was adjudg-
ed, 'that the denying of the poll to Mr. Coningsby,
who was put in nomination, and did not avoid the
election, he having been a prifoner in execution for
debt, and not eligible: And the other two canditates
were declared duly elected. This author alfo, in a
note, tells us, "The reafon why a perfon in execu-
"tion is not eligible, is obvious, becaufe fuch an
"one is not bailable, conſequently he cannot attend
to diſcharge the duty of a reprefentative: whereas
"a pérfon arrefted on mefne procefs is admiffible
"to bail.”
"
I have thrown together the whole of what both
the gentlemen have ſaid, in order to preſerve the unity
of the anſwer thereto, and to make the application
of it the more eafy. And I do apprehend there can-
not well be a more inaccurate ftate of facts, than
that they have given us, or a more erroneous ſyſtem
of reafoning, than they have built upon it.
I am really aſhamed to repeat what has been fo
often faid, as the the fallacy that pervades the whole
argument of thefe gentlemen, and meets us again
in the words now quoted, as it does in every para-
graph when they talk of the right of the houſe to
determine upon the law of parliament, as if that were
any proof, that what is determined neceffarily makes
the law of parliament: Though nothing can be more
certain than it is, that if the houſe of commons were
now to determine fome things in a certain way, for
example, that they have a fhare in the judicature
of the laſt reſort, or that now after two hundred
years poffeffion of the right of the eldest fons of
English peers, to be elected into the houſe of com-
mons, they have no fuch right: Such determinations,
while
1
[ 320 ]
while they profeffed, as thefe gentlemen ſpeak,
determine upon the law of parliament, would be
decifions againſt it and deſtructive of the conftitution
of parliament as now modelled, beyond all doubt;
and ſo in other inftances which have been, and many
more which might be mentioned.
But as to the clafs now before us, and the determi-
nations concerning it, there is much matter for parti-
cular obfervations.
In the first place, two things are here confounded,
in their own nature manifeftly diftinct. The question
of diſability or capacity to be elected, and the pri-
vilege of parliament when chofen. fuppofing perfons
in execution were excluded from privilege, it would
by no means follow in law, nor is there any reaſon of
the thing for it, that being in execution fhould be a
diſability to be elected, or ſhould void the election of
a fitting member: For the perfon, though in execu-
tion to-day, may be diſcharged to-morrow on fatisfy-
ing the debt, and be as much a freeman as any in the
kingdom. Upon which principles it was held, even
in the days when queftions were made as to fickneſs
and other things, about which there is now no quef
tion, that captivity was no objection to an election.
And ſo it was refolved (9th November 1605) "That
"Sir Henry Carye, a captive, elected and returned,
"fhould not be removed, but ftand ftill as a Bur-
"gefs.".
So in the cafe of Mr. Fitzherbert (35 Eliz.) who
was arreſted two hours after his election, and before
his indenture was returned to the Sheriff, as the jour-
nals inform us, "There grew two queftions, 1. Whe-
"ther he was a member. 2. Admitting he were, yet
}
The journal does not explain what fort of captivity was
here meant.
" whether
[ 321 ]
"whether he ought to have privilege?" And "The
judgment of the houfe was, that Mr. Fitzherbert
"was by his election a member thereof, yet he ought
"not to have privilege in three reſpects. 1. Becaufe
" he was taken in execution before the return of the
"indenture of his election, &c.”
There are cafes at this day excepted by fpecial
ſtatute from privilege. Certain debtors to the crown
have it not; and might in the excepted cafes not on-
ly be in execution, but might be arreſted on meſne
proceſs, if the perſonal privilege, (which by the means
of artificial prorogations is now perpetual) were not
faved, as I believe it generally is by thofe acts of par-
liament, which take away privilege in particular
cafes; but fuch a cafe as that would not infer a
difability.
The reaſon therefore given by the author of the
cafe, in his note, why perfons in execution are not
eligible, and which, I prefume, is his own, becauſe
I fee no authority cited for it, viz. That they are
not bailable, is fo far from being obvious, as he
fays, that it appears not only to be very infufficient;
but, with all deference to him, is hardly intelligi-
ble. If not being bailable were a ground of inca-
pacity to be chofen, as he affirms, much more ought
it to deſtroy privilege, fo as neither to ſtay the proceſs
of execution, or to operate the diſcharge of a member
upon whom it is executed. Yet I do not find that
the author infifts upon this as parliamentary law; and
if he did, I am confident it would not be adopted by
the houſe of commons at this day. But if it were to
have that effect, why ſhould it work an immediate in-
capacity, or diſability; feeing, as already obferved,
being in execution, may not occafion an impoffibility
for one day to diſcharge the duty of a reprefentative,
which is the only reafon the author gives for it's being
an
`
[ 322 ]
#
1
an incapacity; and fickness, or being an ambaffador,
may lay a member afide from his attendance, or make
him abfent for years, and yet neither of theſe create an
incapacity.
Not attending, however, to this diftinction between
diſability and want of privilege or choofing to over-
look it, the writer of the confiderations refers us to
the cafe of Sir Thomas Shirley and Mr. Gifford, as
cafes in which, as he fays, the queftion of difability
was agitated. But there is not a word of fuch a quef-
tion in either of thefe cafes. Sir Thomas Shirley's
cafe is moved, at the firft, exprefsly as a matter of
privilege. The entry in the journals (22 March,
1603,) is in thefe words, "This" (referring to an
immediately preceding motion) "being a motion
tending to "matter of privilege, was feconded with
"another by Mr. Serjeant Shirley, touching an ar-
"reft made-upan the body of Sir Thomas Shirley,
"&c. and he prayed that the body of the faid Sir
"Thomas might be freed according to the known
"privilege of the houfe."
tom.
ཟ
In confequence of this motion, a writ of habeas
corpus was immediately ordered, as it is expreffed in
the journals according to the ancient privilege and cuf-
The whole enquiry and proceedings that after-
wards enfued, which were the longeft, and the
ftrangeft that ever occurred in any cafe of the kind,
by the unaccountable warfare, with the warden of the
fleet, who would not obey the orders of the houſe; the
whole go to the point of privilege, and to the mode
of making it effectual under the particular circumſtan-
ces of the cafe: a queftion of diſability was never once
glanced at.
After a full ſearch into precedents, and great con-
fideration, the queſtion at laſt ſtated in the houſe (16th
April 1604) were theſe three. "1. Whether Sir
<< Thomas
[ 323 ]
Thomas Shirley fhall have privilege? 2. Whether
"preſently, or to be deferred till farther order?
3. Whether we fhall be petitioners, to his Majeſty,
"according to former precedents, for fome courfe of
"fecuring the debt, and faving harmleſs the warden
"of the fleet? which queftions being feverally put,
"were all reſolved in the affirmative."
In confequence of this, a bill was actually brought
in, and paffed by both houſes, for fecuring the credi-
tor's debt, and when, during the obftinate diſpute 'with
the warden of the fleet, a petition was prepared to the
king, to come and give the royal affent to the bill, as
it is entered in the journals, " it was not thought fit to
"it
proceed in that manner, being, as was conceived,
"fome impeachment to the privilege of the houſe.”
It appears they were determined, to affert and make
effectual the privilege of parliament, by their own
authority, in oppofition to the old precedents, of
which there are many, of particular acts of parliament
för delivering members, and even the fervants of mem-
bers from cuftody. Sir Thomas Shirley was at length
brought out of the fleet by the ferjeant with the mace,
and a ſecond bill was paffed for indemnifying the war-
den, the firſt having been found faulty: and the per-
fons concerned in making the arreft, were punished by
the houſe for breach of privilege.
From this detail the reader will judge. whether it
be true that the writer of the confiderations ſays,
"that the queſtion of difability was agitated in this
cafe" or if, as we fet out with faying, it was fimply
a queſtion of privilege; and for the faithfulneſs of the
extract we refer to the journals themſelves.
The other cafe of Mr. Gifford was a fhort one, but
clearly alſo a queſtion of privilege only, and not of diſ.
ability, The firſt motion was, that he might be ſent
for to attend his fervice in the houſe: and the doubt
VOL. III.
X
AS
[ 324 ]
as to his being entitled to privilege, arofe upon the
fame ground on which privilege had been denied
to Mr. Fitzherbert in the caſe above referred to in 35th
Eliz. viz. That he had been in execution before the re-
turn of his election. But on examination, it appear-
ed, that the indenture was, by a miſtake of the return-
ing officer (who imagined it must be of the date of
the next county court,) dated after the writ of execu-
tion had been executed, but that the election itſelf was
on a day before, which ought therefore to have been
the date of the return. The indenture of return was
ordered to be amended in it's date, and after the amend-
ment was made, it was refolved, "That Mr. Gifford
"had privilege, and to be delivered out of execution,"
and a writ of habeas corpus was accordingly ordered
for that purpofe. This is the other cafe, in which the
writer of the confiderations fays, the queftion of difa-
bility was agitated.
Thefe two cafes therefore, inftead of proving (which
is the purpoſe they are produced for,) that being in
execution was in thofe days held an incapacity to be
elected, only prove that privilege and capacity did not
always go hand in hand, and that they ought to be dif-
tinguiſhed for proving which, we had no need to
go
fo far back; for in the very Middlefex election, we
faw that there was an execution, to which privilege did
not extend, yet nobody attempted to move for a new
writ upon account of the execution as a difability, even
after the record, on which the execution proceeded, was
called for, and was lying upon the table of the houſe
of commons.
But, ſecondly, the writer of the Confiderations ſeems
exceedingly to have mistaken the tendency of his own
argument to prove, that being in execution was a dif-
ability at the time of Sir Thomas Shirley's Cafe, when
he informs us, that during the dependance of that cafe,
a bill was brought into the houſe of commons for dif
abling
Ċ 325. ]
abling perfons in executions, outlaws, and recufants
convict, to be of the parliament., For that bill, from
the very title of it, could not be a declaratory law,
like the bye claufe put into the ftatute to enact penal-
ties for preventing minors being chofen, or pretending
to fit in parliament; and being a bill to diſable thoſe
perfons, it of itfelf, proves that they were not at
that time under a difability, and that it required an
act of parliament to diſable them; fo that the writer's
proof only difproves his argument.
,
As to the reafon the writer of the Confiderations
gives out of his own head (for there is not a fyllable of
it in the journals) why the bill was una voce rejected, viz.
"That the houfe knew they were fufficiently ſecured
"from the difgrace of fuch members by the law of
"parliament;" being a reafon fpun out of his brain,
as fpiders do cobwebs out of their bowels, it is juſt of
fuch a flimfy contexture. The houſe, indeed, knew
"that recufants-convict were fufficiently difabled by
the ſtatute of Elizabeth, of which we fometime ago
put this writer in mind, becauſe it appeared he had for-
got it. But the houſe knew too, that outlawry in ci-
vil actions, and being execution, were no diſabili-
ties.
3
+
They knew this from their own journals, notwith-
ftanding our author's affertion. So much we learn
from the famous cafe of Sir Francis Goodwin, in
which the great conteft was between James the firft,
and the houfe, about their juriſdiction; the account
of which, fills up fo great a part of the performances
of the author of the Cafe: for we fee outlawry was
thrown out as one of the Objections againſt Sir Francis;
and the anſwer made to it is," that notwithſtanding
"the two outlawrys against Sir Francis, which were
"both in Queen Elizabeth's reign, (i. e. long before
"Sir Thomas Shirley's cafe) he had been choſen, admit-
"ed, a ferved as a member of the houfe, in the feveral
Vol. III,
"parliaments
X 3
[326 ]
"parliaments holden 39th and 43rd Elizabeth."-And
many precedents were referred to on that occafion,
not only of members who were outlawed, and yet had
been allowed to have privilege*, but of perfons who
had been choſen and admitted to ferve, though under
outlawrys, particularly one Mr. John Killigrew, who
had fifty-two outlawrys returned against him, and yet
was admitted to ſerve in the houſe; and Sir William
Harcourt, who was found to be eighteen times outlawed,
and yet was admitted to ferve,
འ
Theſe cafes are fufficient to ſhow, that the reaſon
affigned by the writer of the Confiderations for rejecting
the bill for difabling outlaws, is not true. For from
thoſe cafes, the houſe could not but know, that they
were not ſecure from the diſgrace of outlaws fitting by
the law of parliament; and that the law continued to
be fo after Sir Thomas Shirley's cafe, is proved by the
cafe of Ferdinando Huddlefton, knight of the fhire
for Cumberland, in which it was refolved (28 May
1624)" that his being outlawed ought not to prejudice
"his election."
The reafon is equally falfe with regard to perfons, in
execution; for the houſe muft not only have known
that the objection to them was not near ſo ſtrong as a-
gainſt perſons outlawed; but they had further an ex-
prefs general refolution of the houſe as far back as
1585, which we had occafion formerly to cite " that
perfons in execution," and thofe vifited with fick.
nefs fhould not be removed," which was tantamount
to refolving that they were not incapable to be chofen,
becauſe if they had, they muft alfo have been incapa-
ble to fit; but it is clearly proved by that old refolu-
tion, that the houſe did not know (as the writer of the
Confiderations fays they did) that they were fufficient-
ly fecured by the law of parliament from the diſgrace
*in the 1ft, 23d and 35th of Queen Elizabeth's reign.
1
of
[ 327 ]
&
4
of perſons in executions fitting in the houfe; becauſe
it proves that they not only did fit, but were fecured
in their feats by the refolution*. And the cafe of Mr.
Fitzherbert above referred to in the 35 Eliz. ftill more
directly proved by the queſtion ſtated and decided in
that cafe, that the being in execution did not difable
to fit, or continue a member of the houſe, though he
was not allowed to have privilege.
The fact therefore is, that the houſe knew when
the bill that was brought in during the dependance of
Sir Thomas Shirley's cafe was rejected, that the law
ftood just the contrary of what the writer of the con-
fiderations has afferted the houſe then knew to be the
law of parliament. The better reaſon therefore to be
affigned for daſhing the bill, muft have been, that they
had no mind to alter the law, eſpecially by an occa-
fional bill, which tended to prejudicate a cafe actually
depending.
Thirdly, If it be evident from what has been ſaid,
as it certainly is, that it was not even what the writer
of the confiderations calls the law of parliament, at
the time of Sir Thomas Shirley's cafe, (which is the
only one he cites before Mr. Gifford's, in 1605, (that
perfons in execution were incapable of being choſen ;
it muſt alſo be pretty clear, that neither Mr. Gifford's
cafe, nor any other fubfequent to to Sir Thomas Shir-
ley's, can prove that what had not been the law, conti-
nued, as the writer fays it did, to be the law. But the
contrary of his affertion is alſo demonſtrated by a di-
rect authority. For in 12 Jac. Sir William Bampfield,
1
* This reſolution alſo proves, that the reafon of the ineligibi-
lity of perfons in execution, given by the author of the Cafe,
(that not being bailable, they are not able to diſcharge the duty
of a repreſentative,) is not a good reaſon, as indeed we have
already shown it to be fo very inadequate, that it only proves the
Jaw is not fo.
X 3
who
[· 328 ]
who ſtood committed by the Lord Chancellor for a
contempt, (which is to all intents and purpoſes of the
fàme effect as an execution, and is not bailable,) before
his election, was not only allowed to be well chofen
but was allowed to have privilege, and was delivered
by order of the houſe.
Whatever, therefore, may have appeared to the wri-
ter of the confiderations, we are perfuaded it will not,
after what has been obferved upon Mr. Gifford's cafe,
to any other perſon appear from thence, as our author
fays it does, that the law of parliament either then was,
or continued to be as he ſtates, that perſons in execu-
tion were not eligible, as to which there was, as we
have feen in that cafe, no queftion,
After ſuch a ſubſtraction from the gentlemen's au
thorities, we muft give them credit for the caſe of Sir
Thomas Monk, who was certainly deprived of his feat
But upon what principles this was done we know not,
for all that the journals contain, is barely" that upon
"the information in the houſe, that Sir Thomas was
❝ in execution before and at the time of his election,
"a writ was ordered to iffue for a new choice in his
"room."
It is alſo true, that the cafe of Leinster, in 1661,
ftands as ftated by the author of the cafe, that it was
there adjudged that it did not void the election, that the
poll had been denied to the candidate who was in execu-
tion at the time thereof, and the other two candidates
were declared duly elected *.
nt
As
*We cannot help however obferving on this determination,
that it justified a liberty taken by the returning officer, which the
houſe has, on other occafions feverely animadverted upon. In
18 Jac. I. when the ſheriff took upon him to return Sir Thomas
Bowman, knight of the fhire for the county of Leiceſter, although
Sir
1
[ 329 ]
As to the point in queftion in thofe cafes, the deter-
As to t
minations only prove the fluctuation of the deciſions in
the houſe of commons; but they are far from ſupport-
ing the pofition of the writer of the confiderations,
that perſons in execution, who, as we have ſeen, were
not before the cafe of Sir Thomas Monk, difabled by
any law, or by any refolution, but on the contrary,.
were held by many determinations
to be capa-
ble of being elected, do now ftand difabled by refo-
lutions of the houſe of commons: For the later deter-
minations, as has been faid, directly contradict the poſi-
tion.
}
Here we can by no means praiſe the candour of ei-
ther of our authors. The writer of the confiderations
ſtops at Sir Thomas Monks cafe in 1625; and the au-
thor of the cafe comes no farther down than the cafe
of Leinſter in 1661. Yet they both muſt have known
that there were later cafes on the point in the journals;
and concealing them was only an unfair attempt to
miſguide thoſe who do not read the journals, which is
a fort of conduct that cannot ferve any cauſe. We
ſhall ſtate how the fact ftands upon the journals.
Sir George Haftings had a majority of votes, on pretence that
Sir George was incapable to be elected, by virtue of the old Sta-
tutes of Hen. V. and Hen. VI. as not being a refiant in the coun-
ty, the language in the houſe was, "the Sheriff is judge of the
"number of voices, but not of ability or difability; ergo his re-
"turn naught." And the fheriff and under fheriff were fent
for as delinquents, and cenfured as great offenders to the houſe
and the ftate, although they had the pretence of an act of par.
liament to warrant what they had done. So tender was the houſe
at that time of ſuffering objections of diſability to be ſubject to
the cognizance of a returning officer, under colour of his judici-
al quality being excerciſed fo as to abſorb his miniſterial charac-
ter, which is the chief part of the duty of a returning Officer.
There were, doubtleſs, reaſons, why the returning Officer, in the
cafe of Leinſter was juftified, inftead of being punished for a fimi-
lar conduct, by the reſtoration parliament, where the influence of
the court prevailed.
X 4
In
[ 330 ]
In the 2d of W. and M. 1689-90, Mr. Montague
was chofen for the borough of Stockbridge when he
was in execution; and 25th March, 1690, a petition
was preſented for him to the houſe, ftating that fact,
and ſtating "that by law, and notwithstanding fuch
"his execution, he was a perfon eligible to ferve in
" parliament, and was fo elected." And therefore pray-
ing that his privilege of parliament might be allow-
ed.
*
On this occafion there was a full ſearch by a com-
mittee into all the cafes, and a report made upon the
5th May, containing the whole precedents, down from
the cafe of the Speaker Thorpe, who was executed in
the reign of henry VI. And it appeared there were
two caſes later than that of Leinster, in 1661, viz. Sir
John Prettyman's, in 1675, and Sir Robert Holt's in
1676.
Sir John Prettyman was detained a prifoner in the
King's Bench on an execution, and he was by order of
the houſe, delivered out of the cuftody of the Marſhal,
to attend the fervice of the houſe. And it is clear from
the proceedings, that the arreft was not a breach of privi-
lege; for there is notice taken of it as a breach of pri-
velege, or any perfon complained of, or puniſhed on
that account.
In Sir Robert Holt's cafe, it is exprefsly ftated, that
he was taken in execution out of privilege and alſo
that Sir Robert was under an outlawry. No queftion
of difability is ftirred; but on thofe grounds the com-
mittee denied Sir Robert privilege, which was agreea-
ble to ancient precedents. The houſe, however, upon
the report, difagreed with the committee, and it was re-
folved," that Sir Robert had the privilege of the houſe
"and that he ſhould be delivered out of the cuftody
of the warden of the fleet." In theſe two cafes
therefore
[ 33
]
therefore, the houſe went back to the old law and the old
determinations, before the cafe of Sir Thomas Monk
and that of Leinster.
The confideration of the report in Mr. Montague's
cafe, was put off feveral times, and I cannot find in the
journals that the houſe ever came to any determination
upon it. But I fee it ftated in fome other books, that
he was diſcharged of his impriſonment, and Bohun's
debates are referred to as an authority. Certain it is,
Mr. Montague died member of parliament for Stock-
bridge, under the very election, by which he was cho-
fen when in execution. For it appears from the jour-
nals that in the next feffion of parliament, upon the
26th, May 1691, above a year after the report upon
his petition, that a new writ was iffued for the choice
of a member in his room, upon his death,
This may for aught I know, be the laft inftance in
the journals in which the queſtion occurred, except the
cafe of Mr. Afgill, in 1707, who was priſoner in execu-
tion committed during the prorogation of the laſt En-
glish parliament, before the firft meeting of the Britiſh
houſe of commons upon the union taking effect. He
applied to the houſe for privilege, and it was petitioned
against by the creditors at whofe fuit he was in execu-
tion; and upon a report by a committee which was ap-
pointed to ſearch for precedents, it was refolved, that
Mr. Afgill ought to have privilege, and he was deliver-
ed from cuftody, by fending the Serjeant at arms with
the mace to bring him to the ſervice of the houſe, from
which he was foon after expelled for writing that
ſtrange book of his.
I now leave it to our authors, who have carefully
concealed thefe later cafes, to reconcile with them
their pofition, that perfons in execution, are at this
day, ineligible by refolutions of the houfe of com.
mons. I believe the contrary is not ſo much as a mat-
ter
[332]
ter of doubt, and that no returning officer in the
kingdom would be found hardy enough, on that
ground, to follow the example of the returning offi-
cer in the caſe of Leinfter.
This finiſhes the lift of claffes, given by the writer
of the Confiderations, of perfons who are declared
by refolutions of the houſe of commons to be ineligi-
ble. To thoſe he ſays, he "chooses to confine him-
"felf, though farther arguments might be drawn in
"confirmation of his doctrine, if it was neceffary,
" from the inſtances of the attorney generah perfons
"outlawed and recufants-convict; and alfo, from the
"entries upon a queftion, Whether the heirs appa-
"rent of peers might continue to fit, as to whom the
"houſe of commons, without asking for an act of
"parliament, determined the law to be that they
"might." He farther acquaints us, that," to theſe,
"fix heads of diſability, he confines himſelf, becauſe
"with respect to thefe, the argument, to him, appears
"clear, decifive and unanſwerable."
The argument of this writer may very poffibly, to
many befide himſelf, appear clear, decifive and un-
anfwerable. But to me, if I can at all underſtand it,
it is fo clearly fallacious in the very conftruction of
it, and fo fully anfwered by the very proofs he has
brought in fupport of it, that I imagine I fhall not be
fingular in thinking it would have been very neceffary
for him (notwithſtanding the difpenfation he has taken
to himſelf,) to have brought farther arguments, and
better ones too, if he could have found any other cafe
that furniſhed them.
What has been faid will, I believe, fatisfy a reaſon-
able reader, that the cafes of outlaws and recufants-
convict, of neither of which he ſeems to have known
too much, were not a quarter from which he could
have drawn auxiliary arguments.
The
[·333]
66
The cafe of the attorney general, which the writer
of the Confiderations declines to argue from, I will
mention, that it may add all the weight it can to his
claffes: For I think it is the likeft to a diſability, by
a mere refolution of the houſe of commons, of any I
have met with. And fo lord Coke expreffes it, by
fpecial order," (ſays he)" of the houſe of commons,
"the attorney general is not eligible to be a member
"of the houſe of commons." But at the fame time,
to do justice to this cafe and to the law of parliament,
as now clearly underſtood and fettled, that the attor-
ney general is capable of fitting in the houfe of com-
mons, it is fit to underſtand how the fpecial order
which excluded him happened to be made, and what
effect it had: Which will fomewhat elucidate the no-
tions theſe gentlemen would give us as to the law of
parliament.
The queftion as to the attorney general, was firſt
ftirred in parliament, 4to Jac. before which time, as
appears from the Journals, the attorney general had
always been in the houſe of lords as one of the atten-
dants called by writ. The queftion arofe upon occa-
fion of Sir Henry Hubbard, a member of that parlia-
ment, having been appointed attorney general when
parliament was not fitting. Sir Henry Hubbard is
one of thoſe mentioned in the note referred to by the
author of the Cafe, page 30, which, at the opening
of the feffion, (19th, November 1606) "the ſpeaker
"produced affent to him by commandment from the
"Lord Chancellor, containing the names of certain
"members of the houſe, difpofed and employed by
his majeſty, fince the laſt feffion, in ſpecial ſervices ;
"with direction to know the pleaſure of the houſe,
"whether the fame members were to be continued,
"or their places fupplied with others."
$
All
да
[ 334 ]
All the cafes having been referred to the Committee
of privileges, their report (22d November) is in theſe
words, "Touching Sir Henry Hubbard advanced by
"his Majefty to the place of attorney general, it was
"remembered that in 8vo. Eliz. Mr. Onflow, foli-
"C
citor, being called by writ into the higher houſe,
"was afterwards chofen fpeaker by this houfe: Mr.
Jefferies alfo, the queen's ferjeant, was demanded
by this houſe to do fervice here. Many precedents
"of the king's ferjeant and folicitor; none for the
"attorney, fed eadam ratio."
،،
}
The proceedings in the houſe are entered in the
Journal as follows.
"Touching Mr. Attorney, it was much difputed
"what ſhould be the queftion; at laft the queftion
"agreed and fo made."
"Q. Whether he fhould be recalled, admitting
"that he was already called by writ of attendance în-
"to the higher houſe, as the houfe conceived he was."
"Upon this queftion, the houſe was not fatisfied,
"but would have it made, whether a new choice."
"The houſe upon this grew to divifion, and by
"divifion to confufion, for they were not numbered,
nor one part well underſtanding another, they fettled
"again, and made a new queſtion, viz.
rr
"Q. Whether a queftion fhould be made of it;
"and by voice over-ruled that no queftion fhould be
"made of it, but the matter fhould reft, and ſo was
"underſtood and left at that time."
The next day the houſe met, the following is the
first entry in the Journal. "Mr. Attorney came in
" of himſelf, and continued by connivance without
"farther order."
This
[ 335 ]
¿
This is the firft chapter of the law of parliament
as to the attorney General: A law made by the confu→
fion of a houfe of commons; by a divifion that could
not be numbered, one part, of the houfe not under-
ſtanding another; by a determination that no queftion
ſhould be made; and laftly by the attorney general's
coming in of himſelf, and fitting by connivance.
From this ftrange ftory, all that I can collect is,
that as the attorney general had ufually been called by
writ into the houſe of lords, as one of the attendance
of that houſe, this circumftance was the only tangible
objection to his fitting in the houſe of commons, and
the only thing which diftinguiſhed his cafe from that
of any other ſervant of the crown: the houſe conceiv-
ing, (as it faid) that Sir Henry Hubbard their mem-
ber, who had been appointed to the office of attorney
general in the interval of the feffions, was already called
by writ of attendance into the higher houſe.
The queftion feems to have taken its rife from the
proceedings on former occafions, with regard to the fo-
citor general and king's ferjeant, as to whom the fact as
upon the journals was this: that in two inftances, viz,
thoſe of Mr. Onflow, in 8vo Eliz. and Mr. Popham
in 23 Eliz. they being members of the houfe of com-
mons, when appointed Sollicitors, were re-demanded
from the Lords, notwithſtanding the writ of attendance
calling them in to the upper houſe, and were both re-
ftored, as it is expreſsly faid in the two different cafes,
becauſe the houſe of commons had the firft poffeffion
of them; and both thefe gentlemen are chofen fpeak-
ers, upon their return from the houſe of lords.
As to the Crown ferjeant, the cafe of Mr. Geffrey
occurr'd in 18 Eliz. (6th Feb. 1575) in which it was
"concluded that according to old precedents, he might
❝ have voice as a member of the houſe notwithſtand-
ing
*
[ 336 ]
>
"ing his attendance in the higher houſe as one of the
"queen's ferjeants, where he had no voice.*"
Sir
*The cafe of Mr. Onflow, referred to in the above report,
was this: Mr. Onflow, being a member of the lower houſe, was,
upon a prorogation of parliament made folicitor general; and
when the parliament met again, immediately after the Queen's
commiffion was read in the houſe of lords, intimating her Ma-
jeſty's licence to proceed to the election of a ſpeaker, It was mov-
ed" (as the entry ſtands in the journal) by Mr. Comptroller for
the commons," that for that Mr. Onflow, folicitor-general, was a
"member of the lower houfe, he might be reſtored to join in
" their election, and upon conſultation had among the lords,
"Mr. Onflow was fent down with the queen's ferjeant and Mr.
"attorney general, to ſhow for himſelf why he fhould not be a
* member of this houfe, who alledging many weighty reaſons,
as well for his office of Solicitor, as for his writ of attendance
"in the upper houſe, was nevertheleſs adjudged to be a member
"of this houſe." The election of ſpeaker having then proceed
ed, Mr. Onflow was chofen.
The other inftance of the like fort referred to in 23 Eliz. in
the cafe of Mr. Popham, was thus, as entered in the journals.
There being a vacancy of the chair, when the commons were
about to proceed to the election of a ſpeaker, Mr. Treaſurer
declared to the houſe, that he and others had ſeen a member of
their houſe, in the higher houſe, when the houſe had been there
to receive the queen's anſwer of-licence to chooſe a ſpeaker, and
the houſe, before proceeding to the election, fent meffengers to
the lords to demand the reftitution of Mr. Popham, folicitor-
general, and citizen for Briftol. They received for anfwer from
the lords," that their Lordships had refolved he ſhould be fent
"down, the rather becauſe he was a member of this houſe, and
this houfe poffeffed of him before he was folicitor, or had any
place of attendance in the higher houſe"-And Mr. Popham
being restored accordingly, he was choſen ſpeaker.
66
There is another cafe related from D'Ewe's journal, in the
parliament of 28 Eliz. (of which there are no journals printed)
of Mr. Egerton, folicitor-general, who was choſen burgeſs for
Reading, after he had been commanded by writ to attend in the
upper houſe, and had attended there three days. The com-
mons demanded, that he might be difiniffed from farther attend-
ance there, and come into their houſe. But upon conſultation,
and
{
[ 337 ]
Sir Henry Hubbard the attorney-general having
fat by connivance, in the manner above mentioned, in
the parliament 4to Jac. the queſtion was again brought
into debate in the parliament, 12mo Jac. and it ſeems
then to have been made a party queftion with the court.
For the houſe lofing fight of all principles, did not
even pretend to go upon the only ground pointed out
by the debate in the former parliament, and by the pre-
cedents then referred to as to the folicitor-general,
namely, the attorney-general's being an attendant of the
houſe of lords, called thither by writ: but they ſtrayed
into objections taken from his office and fituation as a
fervant of the crown; although in that reſpect the at-
torney-general ſtood upon the fame footing as the
King's other fervants, particularly with the Solicitor-
General, whofe office was in the debate, not improperly
called a limb of the attorney-general's: They talked
of there being no precedent for the choice of an attor-
ney, as if it required a precedent for any man to be cho-
fen of common right, when under no legal difability :
They ſpoke of privy councellors not having antiently
been
and defence made by himſelf, the lords retained him; and the
main reaſon is mentioned to have been, becauſe they were firſt
poffeffed of him.
The refolution as to the ferjeant, in 18 Eliz. (16 Febr. 1575)
is in theſe words-On fundry motions had, it is concluded by
"this houfe, that according unto the old precedents of this
"houfe, Mr. Serjeant Geffrey being one of the knights return.
"ed for Suffex, many have voice or give his attendance in this
“houſe as a member of the fame notwithſtanding his attend-
ance in the higher houſe as one of the queen's ferjeants for
"his council th re as the place where he hath no voice, indeed
"nor is any member of the fame."
66
Theſe caſes illuftrate what was faid in a former part as to the
diftinction between compatibility of fituation, and capacity of
fate. To fhow that there may be an incompatibility from fitu.
ation, of fitting in the houſe of commons, when there is no in-
capacity in the proper fenfe to be elected;
[ 338 ]
{
been chofen difabbility: though it was admitted, they
had then got fuch a continuance, that they muſt re-
main: And after ranging over fuch, wild ground as
that," perplexed as fome of the members expreffed
themſelves in refpect of the confequence, in refpect
"of the privileges of the houſe, and fatisfaction of his
"majefty;" they came at laft to a ſtrange, illegal, and
unparliamentary compromife, rather than a determina-
tion," refolving, that the attorney-general fhould, for
that parliament, remain of the houfe." And " that no
"attorney-general fhould, after that parliament ſerve
"as a member of the houſe."
Such a determination, if it can be called one, was
the child of mere caprice. For if the attorney-gene-
ral was really incapable of being elected or fitting the
houfe had no more right to retain him for that parlia-
ment, than they had to call into the houſe any perfon
who was not chofen a member: and if he was not dif-
abled, they had no right to refolve, that he ſhould be
excluded from any parliament. Such an attempt to
mutilate the houſe is well cenfured in the firm expref-
fion of a member in one of the debates upon the ſub-
ject, who faid, "he would rather part with a joint
"of his hand, than loſe any part of that politick
"body whereof he was a member." But to pretend
to exclude him from a future parliament, was only
heightening the abfurdity of the proceeding, as it
has not at any rate, in their power to bind a future
houſe of commons by any fuch refolution.
Thus, however, the bufinefs ended at that time;
and in the parliament 18 Jac. it was reported from the
committee of elections as follows; (7th Feb. 1620)
" for the attorney-general, now in the lords houſe, be-
"cauſe by his majeſty's allowance, an order laſt meet-
ing
1
[339 ]
έσ
ing againſt any attorney-general being after of this
houſe, thought fit a new writ." And upon this re-
port, it was in the houſe refolved, (8th Feb.) " that
the order the laſt meeting in parliament, concerning
"the not ferving the attorney-general in this houſe
fhall ftand." Then is added" A new writ.
In the next reign, when the firſt parliament of
Charles I. met, there is the following entry, (9th Feb.
1625) " Mr. ſpeaker moveth, that Mr. Attorney-Gene-
"ral, returned for Grinſtead, and mentioneth the or-
"der 12th Jac.
"The order to be brought and read to-morrow
"morning, and then ordered to be taken forward in
" houfe."
And 10th Feb. there is this fhort entry-" A new
writ for choice of another burgefs for the borough of
Eaft-Ginſtead, in the room of Sir Robert Heath his
"majeſty's attorney-general, according to the prece-
"dent of 12th Jac."
The very reafon for which the writer of the confi-
derations gave a go-bye to this cafe of the attorney-ge-
ral,at the inſtant he was inlifting it into his ſervice in the
dark, made it proper for us to ſtate it fully: and it is no
wonder he choſe to avoid the particulars of the caſe,
as it is fo very notable a ſample of the law of parlia-
ment, in his notion of it that the cafe furniſhes.
Every body knows, that notwithſtanding the refolu-
tion-incapacity laid upon the attorney general, or the
ſpecial order by which that office was excluded the
houſe of commons in futuro, at the very fame time the
perſon who held it, was allowed to fit de præfenti, it is
now, and has for a century paſt been the law of parlia-
ment, now confirmed by conftant poffeffion, and be-
come part of the conftitution of the houſe of com-
mons, that the attorney-general may fit in it.
VOL. III.
Y
And the
importance
$
1
[ 340 ]
importance of having that great officer of the crown
there, which was probably never more felt than in
Charles the Ift's parliament, which turned him out in
compliance with the fpecial order of 12 Jac. is now fo
well underſtood, that we hear no more of a writ of
attendance to call him into the upper houfe, nor has
any queſtion been made as to his eligibility, fince the
reſtoration.
With regard to the cafe of heirs
apparent of peers,
which is also mentioned in a fide-way, by the writer
of the confiderations, it was no wonder, that a queſtion
was made of it when the firft inftance occured, upon
the occafion of a 'younger fon of a noble family, then a
member of the houſe of commons, becoming, by the
death of his elder brother the heir apparent of the
peerage, as before that time, no eldeſt ſon of a peer had
been choſen a member of parliament; which if not a
tacit law of incapacity, was at leaft, a reaſonable ground
of doubt. But the queftion having been once deter-
mined, in che caſe of a ſon of the houſe of Bedford,
and the determination not many years after repeated up-
on a like inſtance occurring in the fame family, under
the very fame circumftances, there it refted; and by
a conſtant pofitive poffeffion for above 200 years, it has
become the undoubted law of parliament, that the el-
deſt ſon of a peer of England, may be of the houſe of
commons.
The determination at the firft, was not without it's
legal ground, however good reaſon there was to doubt
from the non ufe of the right, which very naturally
created a prefumption of law against it; for it has
been held by the lawyers; that "whofoever is not a lord
"of parliament, and of the lords houſe, is of the
"houfe of commons, either by reprefentation, partly
co-augmentative, and partly reprefentative." That
doctrine was recozgnized in the debate upon the quef-
tion
し
​L 34 J
tion as to the attorney-general, in which it was affirmed
that every man is either in the houſe of lords, or in the
houſe of commons.
houfe of commons.
The author of the cafe has added to the lift of his
friend, the writer of the confiderations, the judges, as
a claſs of perfons not eligible by refolutions of the
But he might almoſt as well have
mentioned bishop's. For nobody is ignorant that it is
of the very being and conftitution of parliament, and
confequently, that it is part of the moſt fundamental
law of parliament, that the twelve judges of England
fit in the upper house, as affiftants to the lords in their
judicature, all writs of error being to be tried in the
higher houſe of parliament. And the judges are not
like the attorney and folicitor-general and the ferjeants
and other attendants, who may be called by writ to at-
tend, but may be difpenfed with. The judges muft
have their writ, and muſt be in the houſe of lords, where
they neceffarily have their places on the wool-facks, to
give their opinion in matters of law when called upon,
and to examine petitions and prepare bills, as much as
the lord chancellor, or lord keeper of the great feal
muſt be there to affiſt as ſpeaker of the houſe, though
he ſhould happen not to be a peer.
But it is only the twelve judges of the courts in
Weſtminſter-hall that have places in the houſe of
lords; and therefore all other judges of the courts of
civil law, and the chancellor of the Duchy, who by
office do not belong to the houfe of lords, may be,
and ufually are, in the houfe of commons. And fince
the union, it required a ſpecial act of parliament to in-
capacitate the judges of the fupreme courts in Scotland
to be elected members of the houfe of commons, be-
cauſe they were not officially, or by writ, called to at-
tend as affiftants in the houſe of lords, and had no
place there.
Y 2
The
[ 342 ]
The author of the cafe therefore might, with equal
reafon have produced from the journals, an order for a
new writ, in room of one called up to the higher houſe
as a peer, to prove that peers cannot fit in the houſe of
commons, as he cites orders of the like fort, as to per-
fons appointed judges, to prove that they are not eligi-
ble only by refolutions of the houſe of commons.
The author of the cafe, however, totally miſtakes
the real meaning of the two entries he extracts from
the journals, as to judges, the firft of which he does
not cite fully, and confequently not fairly. 28th June,
1604, Sir Edward Hobbes bolts out a doubt to be re-
folved" whether if a member of this houfe be
"called to the place of a judge, or other attendance
"above during the time of parliament, he ought to
"have place in the higher houſe," or, (which words
our author omits)" fit here during the fame parliament."
The meaning of which, as I conceive, was not, whether
it was compatible for one of the judges to fit in the
houſe of commons, but whether the houſe could re-
turn a member they were in actual poffeffion of, and
keep him from being called up by writ to affift as a
judge in the other houfe, the very fame queftion, which
was, in fome degree tried with regard to members of
the houſe of commons appointed to the office of foli-
citor-general, in the inftances which have been men-
tioned, when the perſon being antecedently a member,
was reclaimed from the lords by the commons.
So in the entry from the journals, cited by the au-
thor of the cafe, of two members, one appointed chief
baron, and the other a king's ferjeant, the queftion ſtat-
ed' was exprefly" if the houſe ſhould recal their
own members?" and it was refolved in the negative.
The reaſon was very obvious; for though a folicitor
general, whoſe office did not neceffarily make him an at-
tendant, and did not at all make him an affiftant in the
houſe
เ
[ 343 ]
$
houfe of lords, might be re-demanded, when the houſe
of commons was firft in poffeffion of him, the houſe
of commons could not require a member who was ap-
pointed a judge, to be reftored, no more than they could
demand back a commoner created a peer. The office
of a judge neceffarily conftituting à relation to the
houfe of lords,
In the very entry in the journal referred to on this
occafion, the diſtinction was taken notice of, for the
words of the report of the committee are, " Serjeant.
"Snigg, lord chief baron, attendants as judges in the
"higher houſe, not to ferve here--if a fearjeant to
"ſerve here." And the old refolution above quoted
as to ferjeant Geffrey in 18 Eliz. feems to have been
calculated to preſerve an option in the houſe of com-
mons, to admit or exclude from their houſe theſe lower
attendants of the houſe of lords, who might, or might
not be there, and who, by their office, were not to
give even an opinion in matters of law in that houfe.
It is clearly therefore a mere miſunderſtanding of the
journals, and a forgetting of the very conftitution of
the houſe of lords, which has led the author of the
cafe to rank judges in general to, as if he meant all
judges in his imaginary claffes of perſons, not eligible
by refolutions of the houſe of commons.
Another additional claſs, reckoned up by the author
of the Cafe, and alſo barely mentioned by the writer
of the Confiderations among his fupernumeraries, are
the eldeſt fons of Scotch peers. But the gentlemen
are alſo equally unfortunate, in this authority for their
doctrine. For not merely to fay, which would be
enough, that the determination of the British houſe of
commons, by which the eldeft fons of the peers of
Scotland were adjudged to be incapable of fitting in
the houſe of commons, exprefsly makes the law of the
land the ground and foundation of the decifion, and
Y 3
the
[ 344 ]
!
the fole one: I fay, befides this, it happens really to
be an incapacity by ftatute, and a ftatute of the moft
folemn kind, being in confequence of an article of the
union.
The words of the motion and queftion put upon this
ſubject were, "that the eldest fons of the peers of
"Scotland were capable by the laws of Scotland, at
"the time of the union, to elect or be elected, as
"commiffioners for fhires or boroughs to the parlia-
"ment of Scotland; and therefore are capable to
"elect or be elected to reprefent any fhire, or borough
"in Scotland, to fit in the houſe of commons of Great-
Britain,"It paffed in the negative.
Now it will not be difputed but the laws of Scot-
land, at the time of the union, were the law of the
land, in this matter, as to that part of the united
kingdom and thefe were laws which the act for the
union had confirmed, and indeed, made unalterable.
For by an article of the union, it is exprefsly declared,
(and upon that the negative to the above motion was
founded)" that none fhall be capable of electing, or
"of being elected for Scotland to the parliament of
"Great-Britain, but fuch as by the laws of Scotland,
"at that time were capable."
It is to be obſerved, that the incapacity goes to elect-
ing, as well as being elected, which of itfelf takes it
totally out of the line of thefe gentlemen's doctrine
as to difability. But another thing does it no lefs, and
that is, that the incapacity is confined to the repre-
fentation of Scotland: for which reafon, eldeſt fons of
Scotch peers do now fit in the houſe of commons
when chofen in England, and always have done fince
the union. So that they are by no means under an
incapacity, or ineligible in our author's fenfe of the
word.
}
1
The
€ 345 ]
1
The author of the Cafe defcends to individuals as
not eligible by reſolution of the houſe of commons ;
meaning, we fuppofe, to give an inftance in proof of
his pofition, that the houſe have adjudged perfons
"incapable of being elected from the particular cir-
"cumſtances of the cafe, and upon general princi-
❝ples of conſtitutional policy." He quotes the cafe
of Mr. Montague, against whom, upon proof of bri-
bery, in one of his elections for ftockbridge, (not
when he was chofen when in execution) it was refòlv-
ed that it was a void election, and "that Mr. Mon-
"tague be difabled from being elected a burgess to
"ſerve in this prefent parliament for the borough of
"Stockbridge."
This, however, is an inftance full as little to our
author's purpoſe as any of the others. For the
ineligibility is confined to his repreſenting the borough
of Stockbridge in that parliament, for procuring his
being elected into which he had there practiſed the
bribery. The refolution therefore, is no more than
determining that bribery fhould not be allowed to have
its effect and if this is not a legal determination, and
as ftrictly conformable to, and founded on the law of the
land, as fifty acts of parliament could make it to be,
jus publicum vanum eft.
I imagine no law in the world can be ſo abfurd as
to fecure a convicted thief in the poffeffion of the ftolen
goods and from that, it does not differ one ieta
in law, fenfe, reafon or juftice, if the houfe of com-
mons, after declaring an election void for bribery,
could not hinder the corrupter from reaping the fruits
of the ſame bribery at the new election, neceffarily to
follow upon the adjudication declaring the former void.
I apprehend the refolution against Mr. Montague, is
in the ftricteſt ſenſe a judicial fentence founded in law,
and, by neceffary implication of law, fpringing out of
the nature of the cafe, as much as inteftibility necef
farily
Y 4.
[346]
farily follows a conviction of perjury, or a judgment
that a knight of the poſt fhall not be received as a
witneſs, which any court of law not only may, but
muft decree to be according to law.
Our author, however, to have been perfectly fair,
ſhould, when he quoted this difabling refolution, as he
would call it, alfo have told us, that it was warranted
by repeated general refolutions of the houfe of com-
mons, to be found in the journals from the 29
Charles IId. when it was firft" refolved, and ordered
to be an inſtruction to the committee of elections,
and to be, from time to time, entered amongſt the
ſtanding powers given by the houſe of commons to the
faid committee, that certain male practices which are
thereby declared to be bribery, fhould be a fufficient
ground for making an election void, as to the perfon
offending, and to render him incapable to fit in parlia
ment by fuch election." Such a refolution, I appre-
hend, was perfectly within the powers of the houſe of
commons, and of fufficient authority to bind all cafes
within it, not only as a fit and legal order of judicial
proceeding, but as a juft and neceffary regulation for
preſerving the purity and freedom of elections, which
by the coſtitution are the peculiar charge of the houſe
of commons, as immediately affecting itſelf, and in-
difpenfible for effecting the ends of juſtice in all deter-
minations thereupon. And to give the refolution
perpetual force, independent of the will or inclina-
tions of any houſe of commons, it was after enacted
by the claufe in the ftatute of the 7th King William,
to the fame effect, before mentioned.
*
The only other refolutions mentioned by the author
of the Cafe, are fuch as give effect to, and merely are
executive of particular ftatutes by which difabilities
are introduced and exprefsly enacted. I know not with
what view he fwelled his catalogue with them. Nei-
1
ther
[ 347 ]
1
ther do I underſtand the reafon of his citing the or-
ders in 1606, for new writs in room of the members
appointed treaſurer at war in Ireland, and chief baron
there, whoſe names were contained in the note before
mentioned, fent from the chancellor to the ſpeaker,
of perfons difpofed of by his majeſty in fpecial
fervices, as to whom he defired to know the pleaſure
of the houſe, whether writs were to be iffued for elec
tions in their ftead.
Theſe caſes have nothing to do with the prefent quef-
tion; they bear no relation to diſability or incapacity
to be chofen, the orders for new writs were iffued in
thoſe caſes in the ordinary courfe of the proceedings
of the houſe, for preferving the repreſentation of the
people full, upon the juft principle mentioned and
maintained in the houſe in thoſe days, perhaps with
more care than in later times, that the end of parlia-
ments was to have thofe prefent that did reprefent.
Not ſeeing, therefore, of what influence fuch fort of
cafes are upon the prefent argument, it would be
but fruitless to purſue them with any particular obſer-
vations.
Thus have I travelled with both our authors through
all their claffes and cafes, and I perfuade myſelf, it
will not appear, that there is among them all, one
refolution of the houfe of commons ftanding in force
at this day, (not even the ſpecial order as to the
attorney general excepted,) difabling any man from
fitting in parliament, or of effect to incapacitate or
render ineligible any perfon or order of men againſt
the law of the land, or in contradiction to the com-
mon right of the ſubject.
After all, I muft, refume the real queftion, and re-
turn to this, which, as was premiſed, I conceive to
be the only true ſtate of the argument; That whether the
determinations of the houfe of commons with regard
to
[ 348 ]
to any of theſe claffes, or at one time or another
have or have not been agreeable to law, ftill the cafes
do nothing less than prove it to be the law of parlia-
ment, that the houſe of commons has a right or power,
by its own refolution fingly, to incapacitate, difable
or render ineligible, either individuals, or claffes of
men. For all the cafes are mere determinations of
the houfe in the exercife of its judicature as to elec-
tions and returns: And that is as different from making
difabilities by refolutions, as the houſe of lords deter-
mining a cauſe upon a writ of error or appeal, would
be different from their refolving this or that to be law,
by virtue of their own judicial authority only.
In that cafe, the houſe of lords, and in the other,
the houſe of commons, would act a legiſlative inſtead
of a judical part, which is beyond their power: And
their refolutions would not be legal determinations,
but ufurpations of legiſlature, which belongs to the
united power of king, lords and commons. It would
be an ordinance instead of an act of parliament.
The doctrine is dangerous and deteftable. It tends
to dethrone juftice, and to eſtabliſh tyranny in her
feat. If it does not ftorm, it is a treacherous fur-
render of the very citidel of liberty.-To maintain´
fuch doctrine, is to inveft the houſe of commons with
a power deftructive of the conftitution, repugnant to
the law of parliament, and that overthrows the rights
of the people.
I cannot however, exprefs myfelf with more force
than the commons of England in parliament affem-
bled, have, to the immortal honour of the houfe of
commons, done upon the very point. I fhall there-
fore take the liberty to finiſh this long head with the
words of the reprefentatives of the people of England
in the famous conferences in 1689 with the lords,
upon the amendments propoſed by their lordſhips to
the
}
[ 349 ]
the bill for reverfing the cruel, arbitrary and illegal
judgments of the court of king's bench, againſt Titus
Oats, which had been affirmed by a decree of the
houfe of lords.
66
The commons told the lords, "That by taking
upon them to affirm fuch judgments as theſe,
"which the lords themfelves agreed to be errone-
ous, they had, in a manner, taken the law into
"their hands."
6
"That this arbitrary power in the lords judica-
ture was a new difcovery, and, if it had been
"underſtood in former times, would have been
"a very expeditious way of altering the law upon
" ſeveral occafions.'
.
That the lords as a court of judicature were as
ftrictly tied to give judgment according to law,
as any inferior court whatſoever:" That,
« They
muft not proceed upon confiderations of conveni-
ence: But that judgment of the lords was agreed
to be given, not according to law, but according
"to an opinion which their lordships had conceived
•
of the party:-inſtead of correcting the acknow-
"ledged errors of the judgments in the king's bench,
"they affirm them; and fo change the law, which
CC
ought to be the certain and fteady rule of govern-
ment, into the arbitrary refolutions of that houſe.-"
"That the lords-did feem to have inverted the
"feveral methods of proceedings in their diftinct
"capacities."
"In their judicature, where they ought to act by
"the ſtrict rules of law, they proceed according to a
"fuppofed convenience in their legiflative capacity,
"where there is a latitude of proceeding according
"to a moral certainty and convenience, a fingle ex-
"preffion
}
[350]
Preffion-though inferted upon juft grounds will
not be allowed."
In a fecond conference the commons thus expref-
fed themſelves.
7
"For your lordships to affume a diſcretionary
' power to affirm a judgment, though at the fame
"time you agree it to be erroneous, is to affume
a power to make law, inſtead of judging according
"to the rules of law."
6
"It is recorded" (faid the commons)" to the honour
"of your noble anceſtors, that they declared they
"would not change the laws: And the commons.
"hope you will purfue their ſteps, and not, by af-
"firming erroneous judgments, go about to make
"that law which was not fo before; and by infifting
"upon collateral terms, before you will reverfe thoſe
"judgments in the legislative way, take to yourfeves,
"in effect, the whole power of legiflature: which
is not only to change the law, but to fubvert the
"conftitution of the government."
Such was the doctrine of the revolution houfe of
commons, in fupport of the laws of England, and
the rights of the people of England. If I could but
catch a ſpark of the fire of this remonßrance, I
fhould with fome fpirit, finish theſe reflections,
when, to compleat the plan I propoſed, I am now
come to the.
VIth. And laſt general head, which I promiſed to
beſtow upon fhewing, yet further, the real importance
of the queſtion which has been treated, by pointing
out the danger of the propofitions, which I hope
have, in the argument, been proved to be errone-
ous.
And
Firft,
C, A
1
[351]
Firft, in the penal incapacity, by implication ari-
fing from expulfion, there is the ſpecific danger, that
it muft from the very nature of the thing, be liable
to be made an occafional engine of tyranny to pro-
ſcribe particular members of parliament, and garble
a houſe of commons.
Such was the uſe of expulfion and difability in
the parliament of 1640. That the expulfion of Sir
Robert Walpole, with the incapacity adjudged againſt
him, was uſed for this purpoſe, no whig can deny.
This circumftance alone merited very ferious confi-
deration before fuch a folitary authority, fuch a ma-
lignant fentence had been uſed as a precedent, or
purſued as an example. The friends of the houſe of
Hanover uſually. look back to the proceedings of
Queen Anne's tory parliament, only to remember the
great deliverance wrought by providence for this
country, in fruftrating the council of thoſe men, whoſe
machinations centered in the defeat of the Proteftant
fucceffion, and reftoring the Pretender.
This danger cannot exist, if the law of the land
is the certain and fteady rule of incapacity, unlefs
with fuch a houſe of commons as can venture to fet
the law at defiance, and laugh at the conftitution
itſelf. But fo long as expulfions themſelves are ar-
bitrary, an incapacity implied in them, muſt be fo
too. And nothing is more arbitrary than expulfion,
becauſe there is no law or rule defining or limitting
the cauſes of it.
1
Such a fort of incapacity can never be the inftru-
ment of equal and indifferent juftice, and therefore
muſt be an evil of a moft pernicious tendency; moft
repugnant to the fpirit of a free government, and
adverſe to the genius of this conftitution. It is
the glory of it, that men know the law by which
they are to be judged; that by the law only the
guilty
[ 352 ]
guilty are punished, as well as the innocent pro-
tected: And that in every fituation, juftice is ad-
miniſtered by the golden and ftraight mete-wand
of the law, as Lord Coke calls it, and does not
bend to the uncertain and crooked cord of dif-
cretion.
\
This implied incapacity is abfolutely a pramunire
without ftatute and without judgment, which puts
every member of parliament out of the protection
of the law for the nobleft privilege, and deprives
the electors of England of their higheft franchiſe.
For theſe are made to depend upon the mere
pleaſure of a majority of the houſe of commons, which
may be their caprice, their malice, party heat, op-
pofition of opinion and objects:And with all
thefe, has at fome times been a defign to fubvert
the conftitution.
It is the brilliancy of civil policy, and the luftre
of a well tempered conftitution, that there is a wife
mixture of mutual checks to prevent the evils to
which the fubjects are expofed, where every thing
is refolved into the mere will of governors. In En-
gland the judge checks the jury, the jury controuls
the judge, and the law rules both. In that judi-
cature by which expulfion is inflicted, there is no
check at all, if incapacity is annexed to it; which
is rather laying the reins upon the neck of power
in too dangerous a manner. If expulfion is left
without incapacity, the power of re-election is a
check, becauſe an excefs in the judicature would
prove fruitlefs, if it was fooliſh or wicked: and the
member who did not deſerve to be expelled, return
in triumph over partiality and precipitance.
There is at leaſt a fhadow of fafety againſt incapa-
city by refolutions difabling claffes of men, becauſe of
the number they affect; as whole bodies cannot well-
be
[353]
be the objects of malicious refentment, or fuffer
for the fake of one that is. But a difabling ex-
pulfion that can take one, and leave another, and
do execution just as it is levelled, is capable of
being converted into a downright oftraciſm, and may
lay waſte by piece-meal, till it effect a total defolation
of virtue and patriotiſm, as it did in the houſe of com-
mons of 1640.
Nothing can better fhow this danger than the ex-
pulfions of that parliament, which proceeded from the
ſpirit and party of the times.
Sir Edward Deering, we have feen, was expel-
led for publiſhing fpeeches in favour of the confti-
tution.
Mr. Holles was expelled for making a fpeech, of
which it is mentioned, that it was with great strength
of reafon and courage, but more heat than the times
could bear. He was afterwards, indeed, reftored by
the favour of the houſe; but the reftitution, which
was as illegal, as the expulfion was outrageous, on-
ly illuminates the danger of unbridled power in cri-
tical feaſons.
Mr. Taylor was expelled upon the evidence of a pa-
per, containing words alledged to have been ſpoken
by him at Windſor, as to the bill againſt Lord Straf-
ford, and he was impriſoned till he ſhould make a
public recantation at Windfor. This, and Sir Ed-
ward Deering's cafe, are both among the gentle-
men's precedents.
A member was fufpended for a feffion for fome words,
which, it is faid, gave offence; that is, which the
majority did not like to hear.
Two members were fent to the Tower for bring-
ing in Candles against the defire of the houfe, when,
very probably, their proceedings fuited the darkneſs.
For
1
[ 354 ]
For the fame, or for a lefs offence, they might
have been expelled, confequently incapacitated, if
that be the law of expulfion.
Nor is it to the parliament of 1640, that ſuch
expulfions were peculiar.
In the 18th of James the Firft, a member was
expelled, becauſe he faid fomething on a bill, which
(it is faid) feemed to reflect on the perfon who pre-
fented it, as favouring of a puritan and factious ſpirit,
and he was told his judgment was very merciful, for
that the houſe might, for fo exorbitant an offence,
have imprifoned and farther puniſhed him.
حية
But, to cut the matter fhort, I would afk, but
one queftion. Can any man be found bold enough
to ftand up in his place, fortified with all the prece-
dents which have been collected, and with the doc-
trine by which they have been fupported, and move
for a bill, that every perfon expelled fhall be incapa-
ble of being re-elected into the fame parliament? I
don't believe one will be found. Yet if it ought to be
law, why not enact it? Si quis legem fanciat, pænas in-
dicat. Dark, doubtful, and difputed laws, if any
thing of that fort deferve the name, are one of the
greateſt evils that can affect a country, eſpecially in
criminal matters; becauſe they are the moſt horrible
means of tyranny and oppreffion. The refolutions
againſt bribery, for preventing the corruption of par-
liaments by accepting offices, were afterwards enacted
by ftatutes. Even tó render effectual the law of the
land as to minors, a claufe was enacted with penal-
ties. And if this law of parliament incapacity, as
the gentlemen call it, be fo very reaſonable and falu-
tary, why grudge an, act of parliament upon it to re-
move doubts, and let every man know what he is lia-
ble to. It will not be acquiefced under, while it is
nothing but the d&tum of doctors and profeffors, the
ravings
1
[ 355 ]
}
ravings of journalists and precedent-men, the mandate
of a minifter, the progeny of an ordinance, or the
brood of a refolution. But,
Secondly, The other incapacity by refolution, which
though not penal, is as privative as the former, in
the way the gentlemen conftruie it, as a direct diſability
inſtead of a declaration of a want of legal capacity,
or incompatibility; this alfo is dangerous in the
highest degree, both in refpect of the extent to
which, according to the doctrine upon which it is
built, it may go, and in refpect of the power by
which it is produced.
The gentlemen have not been pleaſed to mark out
any limits to this extraordinary power of diſqualify-
ing, or declaring ineligible, as they term it, by refo-
lutions; nor indeed can I ſee how any limits can con-
fift with their doctrine of an abſolute and uncontroul-
able power in the houſe of commons to make ſuch dif-
qualifying refolutions. This doctrine fo fets at naught
all the principles of the conftitution, that it is impof-
fible to ſay to what extent the power may not go. If
the law of the land were the rule of theſe reſolutions,
and they were merely declaratory, as we have argued
and have endeavoured to prove from all the cafes, the
boundary would be known; but then there would be
an end of the doctrine of In-eligibility fingly by
refolution.
If fuch an abfolute power of refolving incapacities
is eſtabliſhed, the old ordinance of the lords for
excluding lawyers, may again come into the writs,
for the fake of fome lawyer who does not always
chooſe to be the tool of a court, or the ſlave of a
minifter, or his minion, with an exception only of
lawyers in the king's ſervice.
If there is a troubleſome alderman of London, whoſe
ſituation and difpofition renders it impoffible to take
VOL. III.
Ꮓ
him
[356]
1
him off, refolve that no magiftrate of the metropolis
is eligible; and if a pretence were neceffary, (which
abfolute power difdains,) give for a reafon that he
is to attend the functions of his office.
Does the commercial world furniſh ſturdy patriots,
why not refolve that merchants cannot be chofen,
who have an intereft always to oppofe the laying
on of duties.
Is it inconvenient to here the din of the colonies,
declare that no man borne in America can fit in the
houſe of commons.
Becauſe the interefts of England and Ireland fome-
times jar, exclude all who have eſtates in Ireland, or
are members of either houfe of parliament there.
If a phyfician fhould be chofen, illuftrious enough
to be profcribed, as Doctor Lucas was in Ireland,
where he is not the patriot reprefentative of the
capital, nothing more is neceffary than a refolution,
that the medical faculty are incapable of being
elected.
All that can be faid is, that this would be, as the
commons expreffed themſelves in the conferences.
which have been cited, a most expeditious method of
changing the law. It is indeed celeri certare fagitta.
It might, however, be convenient, if this conftitu-
tion were to be adopted, to leave a difpenfing power
with the king, or his minifters, and then the lord
chamberlain might licence members of parliaments as
he does plays.
If this refolution-law be the law of parliament,
there is not fo far as I can fee, one clafs of men,
one order or profeffion, who are, for an inftant, pro-
tected by the law of the land, or the conftitution,
againſt a refolution rendering them ineligible if fome
unlucky
[ 357-]
unlucky man ſhall ever happen to be of importance
enough to call forth his feathered arrow to make
rid of him.
The author of the Cafe carries the doctrine even to
individuals, and he has a very comprehenfive rule for
the application of it, viz. the particular circumſtances
of the cafe, and general principles of conftitutional
policy. In fome future time it may be a particular
enough circumſtance of a cafe, that a man ftumbled
upon a particular vote in fome queftion; and it
may be a very good principle of policy, that an-
other his not given fome test of his attachment to
the minifter.
It was the conftitutional learning of James the
Firſt, that moft eminent royal profeffor of defpotifm,
that the rights and privileges of parliament, were
mere indulgences of the crown, reſumable by the
fovereign. Is it the leffon of this day, that the houſe
of commons may, by refolutions, refume the people's
rights of election, and reduce them to the ftage of
a conge de lire. For to what elfe does the doctrine
of theſe gentlemen go? do they imagine that it will
be endured, or that the people of England are al-
ready fit to receive it. Poifon may be a medicine,
but never in any quantity; and it is always dangerous
when adminiftered by a fool. It is not even fafe for
the fool himſelf.
So much for the danger of this fecond fort of in-
capacity in the extent of it. Now as to the danger of
the power by which it is produced-A refolution of
the houſe of commons-An ordinance-Not a ſelf-de-
nying, but an arrogating and affuming ordinance
-A difabling ordinance.
Ordinance, is a note of ufurpation, and will remain
branded with its proper ftigma, as long as any fenfe
Z 2
of
t
•
[ 358 }
]
[
of the value of this conftitution continues. For the
danger of it, we have but to look to the proceedings
of the parliament of 1640, which refolved away the
regal goverment of theſe kingdoms.
But, without fuppofing fuch an extremity, if this
doctrine of the power of refolutions takes root, pof-
terity, for aught any body can infure to the contra-
ry, níay fee the negative of the crown expelled out
of the legiſlature by a refolution of the houſe of com-
mons-Or a refolution, that the lords muſt paſs all
bills by which the commons grant aids to the crown
Or a refolution that no commoner fhall be made a
peer without confent of the houſe of commons.
To come nearer our immediate fubject; upon fuch
a ſyſtem of power in the houſe of commons, could
any refolution be complained of, eſtabliſhing new
qualifications as well as incapacities of electors, or
elected, elections being the object of the competent
and exclufive jurifdiction of the houfe, in which they
are ſubject to no appeal? May we not, for example,
fee a refolution copying after the parliament 1640,
that all electors and elected, fhould take the commu-
nion with the church of England, to exclude fectaries,
and no matter though it alſo cut off the forty five pref-
byterian reprefentatives for Scotland, if their con-
fciences ſhould happen to be very fcrupulous?
The author of the Cafe tells us, the houſe of com
mons have not faid, and he adds, God forbid they
ever ſhould ſay, who fhall be elected; they have only
declared by their refolutions, who by law may not be
elected. What this gentleman and his colleague wri-
ter, mean by declaring ineligibility by law, we have
fully explained from their own words. But no tran-
fition can be more eafy than that from refolving who
may not be elected, to refolutions who fhall be elec-
ted. And, indeed, refolutions extended to a conve-
nient
[ 359 ]
nient length, as to thoſe who may not be elected, will
at laft pretty effectually determine who fhall be elec-
ted, by leaving none to be choſen but thoſe of certain
qualities of deſcriptions, with the help of a liberal
intepretation of the viri difcretiores et majus idonei,
which the writ commands to be elected.
But the danger of this power does not reft fingly
in it's being fubverfive of the very frame of the
government as inveſting one houſe of parliament with
the effect of legiſlative powers which is bad enough :
It is no lefs dangerous in it's nature and in the man-
ner and circumftances of it's being exerciſed, than
it's principle and origin. For here, again, the un-
kindly ideas of judicial diſcretion neceffarily prefent
themſelves.
This arbitrary power of judicial refolutions is not
like abfolute government, which, in the hands of a
wife prince may be harmless, tho' fo liable to mif
chief. that no man of ſenſe would wiſh to ſee ſuch
a form of government eſtabliſhed, or to live under it.
It is a diſcretionary power in judicial determinations,
from which it ought, as much as in nature, to be
excluded: And it is doubly dangerous as the difcretion
of a numerous body, not having the pole ftar of the
law to guide, or any rule as a compaſs to direct
them. A difcretion, fo circumſtanced, is moſt likely
to turn out often to be the wildeft extravagance of
men; the diſcretion of a multitude free of rule and
law, being fomething very much of the fame caft with
the moderation of a mob.
But this diſcretion of arbitrary reſolutions we have
feen very well characterized and expofed in the com-
mons conferences upon Oates's bill. And what was
the confequence of difcretion being fubftituted in
place of the law of the land, as the rule of trial,
under the adminstration of juftice by Emplon and
Dudley?
Z 3
[360]
Dudley? When they were hanged, the race of bad
men did not totally fail. To what enormous extra-
vagance of punishments did the difcretion of the
court of king's bench go, in the bloody reign of
James II. when once the judges had determined,
that it was in the difcretion of the court for mif-
demeanours at common law, to inflict what puniſh-
ment they pleaſed, not extending to life or member.
They inflicted puniſhments far worfe then death
which may be a fcare-crow for judicial difcretion in
all ages. This inftance is alſo treated in the pro-
per manner, in the above conferences of the com-
mons.
But it is needlefs, in this climate, to enlarge fur-
ther upon the danger either of ordinances or of
judicial diſcretion. The authority of ordinances or
refolutions of one houfe of parliament to make law,
or to declare to be law, what never was law before,
ftrikes at the foundation of the conftitution. It de-
ftroys the equilibre of the government, which exifts
in the ballancing of its different branches, and can
only be preſerved by maintaining the poiſe.
Etheris immenfi partem fi preferis unam.
Sentiet axis onus.
For the doctrine to be oppoſed to the power we
are contending with, we may take it from King
Charles I. in one of his ſpeeches at the conclufion
of a feffion, though the fpeech was made juft after
he had, inconfiſtency enough with his words, how-
ever conformable to his practice, given a very bad
anſwer to the petition of right.-"None of the houſes
" of parliament," (faid he) " joint or feparate,
what new doctrines foever have been raiſed, have
any power either to make or declare a law with-
"out my confent." Which laft words we have only
to vary, when fpeaking of one houfe of parliament,
26
by
[ 361 ]
by fubftituting in place thereof thefe others" with-
"out the confent of the two branches of the legifla-
"ture." The doctrine is fo found, that it was efta-
bliſhed by the ftatute after the reftoration, which
makes it a pramunire to affirm, that both or either
of the houſes of parliament have any legiſlative autho-
rity without the king.
And for the danger of the doctrine we grapple
with, I fhall alfo cite words, which the fame king was
inſtructed to uſe on another occafion, fo appofite, as
almoſt to be prophetical of the prefent difpute-
"If (faid he) there fhould be fuch a fecret of the
law, which hath lain hid from the beginning of the
"world to this time, and is now diſcovered to take
away the juft legal powers of the king, we wish there
66
"6
may not be ſome other fecret to be difcovered,
"when they pleaſe, for the ruin and deftruction of
"the liberty of the fubject; for, no doubt, if the
"votes of both houfes have any fuch authority to
"make a new law, it hath the fame authority to
repeal the old; and then what will become of the
long eſtabliſhed rights of the king and fubject, and
"particularly of magna charta, will be eafily difco-
"vered by the moſt ordinary underſtanding.”
Thirdly, I cannot, after hearing fo much of pre-
cedents, forbear, upon this occafion, to take notice.
of the danger of precedents that trench upon the
conftitution, which is fo great, that they cannot be
too carefully avoided, nor any pains be too much to
refift and repel them.
Precedents are in their nature moft prolifick, and
therefore to be withftood in their firft begining. One
eternally begets another, in an endleſs fucceffion.
We need not here produce the teftimony of the par-
liament 1640.
1640. The example of Sir Robert Wal-
Z 4
pole's
[362]
}
pole's expulfion and incapacity, is now fufficient for
our purpoſe.
Lord Coke fays, "It is not almoft credible to
"foreſee, when any maxim or fundamental law of
this realm is altered, what dangerous confequences
"do follow." And he is fpeaking of alterations
made in a conftitutional way, by act of parliament,
for he refers, for an example, to that ſtatute on which
Epfom and Dudley founded their flagrant expreffions
of the fubject. Precedents of unconftitutional power
are yet more dreadful, becauſe they are at once dan-
gerous in their origin, and diſmal in their confequen-
ces, the wildeft and moft extravagant, like illicit
amours. But of all others, precedents that eſtabliſh
principles deftructive of fundamental rights, are the
moft fatal; as they have a direct and immediate ten-
dency to work a fubverfion of the conftitution, and
refemble the letting in of water, which, by running,
enlarges it's own paffage, till it guſh into a torrent
of devaftation.
Mere acts of acknowledged voilence, either by ju-
dicial or miniſterial power, can do little general harm,
and are eaſily corrected, as we faw in the cafe of
general warrants and feizure of papers, which no
body undertook to juftify with as many precedents
as could fill the office of a fecretary of ſtate. But
fuffer mischievous principles to fettle and they pre-
fently become a part of the fyftem, incorporate with
the conftitution, and are interwoven in it's frame.
If, as an able writer obferves, that great maxim of
politicks were purſued by governors, never to enter
into meaſures to anſwer particular occafions, without
confidering how far that ftep, which their neceffities.
may drive them into, can prove fatal and dangerous
in its confequences; I fay, if this maxim were fol-
lowed as it ought, we fhould fcarce ever find prece-
dents
}
1
[363 ]
dents eſtabliſhed which one time or other may be
brought to justify the moſt abominable tranfactions,
and to deftroy the liberty of theſe kingdoms.
However, if minifters and men in power will of-
fend againſt the duty they owe to their country, it in-
difpenfibly behoves every other man, in his ftation
and ſphere, whatever it may be, to reſiſt and defend
againſt ſuch attempts. It is not fo difficult to fore-
fee, as hard to prevent the confequences, if perfons
of weight and influence in the ftate are induced, by
cowardice or corruption, fhamefully to give up the
people's rights, and even to join in invading funda-
mentals, flattering themſelves, perhaps, that when they
have, by their fervile compliances, gained fome pre-
fent advantages to themſelves, it will then be time
enough to redeem the common-wealth. It has been
justly remarked that fome fuch notions as theſe, at
firſt led Pompey to join in the meaſures of thoſe who
intended to fubvert the Roman liberties; and after-
wards, when he repented and defired to fave his
country, he found them grown too ftrong, and him-
felf too weak, to do any good,
There is another fort of danger in precedents,
and though it does not fo properly belong to my
argument, it is very fit to be confidered by fome
folks. They fhould recollect, what has been often
obferved, that vindictive precedents are generally
found to be dangerous weapons, which carry a
double edge, one for their contrivers, as well as
another for the devoted facrifice; and ought there-
fore to be equally avoided, both in policy and hu.
manity. Lord Coke mentions a notable inftance
of this fort, in an Earl of Effex, who cauſed that
abfurd act of parliament to be made for attainting
people without hearing them; and was the firſt him-
felf who fuffered in confequence of it, the perſon at
whom it was aimed having eſcaped it's bloody edge.
Where
L 364 ]
Where virtue controuls perfonal refentments this is
justly repreſented as the language of a true patriot
"I hate this man, and defire to do him a miſchief, but
"the love of my country has greater power over me."
And forbearance, fometimes, is a very uſeful political
rule. It is greatly praiſed in Philip of Mac:don, and
with this commendation of itfelf--that it was ingens
inftrumentum ad tutelam regni. It is alfo recorded. to the
honour of the romans; as a nation, that though the
Carthaginians had committed nefanda facinera againſt
them, both in peace, and during truces, yet they did
not retaliate when they had opportunities, but rather
ſtudied to do what was worthy of themfelves, than
what might have been lawfully done to thoſe who had
given them fuch provocation. The example of Milti-
ades is no leſs worthy of imitation, as well as honour, as
a part of whofe character it is fad, amicior omnium liber-
tati quam fua dominationi fuit.
In the fourth place. The danger of the propofi-
tions, the erroneouſneſs of which, we have endeavour-
ed to prove, will appear, if we reflect upon principles
againſt which we contend, and the confequences which
may follow them.
The object is the right and freedom of election, the
bulwark of our liberties, the bafis of the conſtitution.
If theſe are hurt, the foundations are deftroyed. They
are the moſt important part of the privileges of the
houſe of commons, becauſe they are the moſt valuable
of the privileges of all the commons of England, and
the defence of all the reft. Therefore, as a paliament-
man faid in the debate, as to the attorney-general, in
1614," the cafe of the houſe has always been for their
"privileges, but in nothing has their care more ap-
❝peared, than the preſervation of the right of election
"of the members this houfe."
Take
[ 365 ]
Take away this unalterable and unalienable right,
and to borrow the words of a bold woman, the coun-
teſs of arundel, in a ſpeech to Henry III. "Where are
the liberties of England fo often reduced into writ-
ing, fo often granted, and fo often redeemed." Illo
jure ablato non tam illum amififfe quam cum illo omnia inte-
riiffe viderentur. This is the right for which we would
furely wish to have the promife of Polyphemus to
Ulyffes, that it ſhould be the laſt to be devoured.
As to the conſequences of an invafion of this right;
-Theſe are an illegal, unconſtitutional repreſentation,
and may be the packing of a parliament to the deftruc-
tion of the kingdom. If in the election of members
of parliament, a minority is to be ſet up againſt a ma-
jority, upon the ground of arbitrary and illegal incapa-
cities, contrary to common right, privilege, property,
and conftitution, under ſuch a diſpenſation, are the mere
caput mortuum of ſpeech.
But to ſpeak more fully on fuch a fubject, I chooſe
to do it from the annals of England. It is in our hif-
tory, that Richard the II. in purſuit of his infatiable
luft of arbitrary dominion, took every unconftitutional
method he could think of to procure a parliament of
his own abject creatures, by the help of ſuch ſlaves,
to fubdue their country to his tyrannical yoke. "And
"(continues the hiftorian) if any were elected not
agreeable to him, fheriffs were ordered not to return
"them, but to cauſe others to be chofen in their room.
"Befides, as the houſe of commons were the fole jud-
ges in the affair of elections, he was well affured,
"that fuch a parliament would confirm, or reject whom
" he pleaſed."
<<
66
ry
"It muſt not, (proceeds the hiftory) be thought ve-
difficult for a king of England to execute fuch a
"project. Experience has fince confirmed, on num.
berlefs occafions, that by the like ways, it is very
poffible
[ 366 ]
"poffible to cauſe repreſentatives to be chofen devoted
"to the court. However, hiftorians remark, that it
was in this parliament that fuch practices were firſt
"ufed. But it muft likewife be added, that it was one.
"of the principal caufes of Richard's deftruction.
"And indeed, (fays this fame hiftorian) it is impoffi-
"ble that a nation can ſee their liberties in the hands
" of men whom they have not themſelves freely cho-
fen, without defiring to be delivered from fuch an
" oppreffion."
<<
The parliament, fo compofed, was opened with a
fpeech, made by a bishop, to prove that the regal
power was unlimited, and that fuch as endeavoured
to bound it, deſerved the fevereſt puniſhments. In
conformity to that principle, which in that parliament
met with general approbation, were the proceedings
of the parliament which made a perfect maffacre of the
nation; for the account of which we refer to the
Hiftory.
"If, fays Rapin, the parliament of 1386, deferved
"to be called the Mercilefs, I know no name odious
"enough for this. This affembly made no fcruple to
"facrifice to the paffions of the king and his minif-
"ters, the moft diftinguiſhed lords of the kingdom,
“ as well as the liberties and privileges of the peo-
CC
ple-They approved, as conformable to law, the
"opinions, for which nine years before, the judges
"who attended during the fitting of this parliament,
"decided, that when the king propoſed any articles
"to be debated in parliament, it was high treaſon to
"bring in others before the king's were diſpatched."
The whole ended in one of the ftrangeft things to
be found in the whole Hiftory of England,-an act
of parliament, by which the whole power of the na-
tion was devolved to the king, twelve peers, and fix
commoners.
The
[367].
t
The Hiftorian who relates thefe facts, could not
help ſtaying here, as he expreffes himſelf, a moment
to reflect on the conftitution of the engliſh govern-
ment: And while we have his remarks, we need not
offer any of ours on this occafion, "It is certain,
"(fays he) the inftitution of parliaments is very ad-
vantageous to the kingdom, being the only fup-
port of the liberties of the people, who without
“that, would have long fince fallen into a fatal
ſlavery. But on the other hand, it cannot be deni-
"ed, that theſe affemblies become fome times very
"dangerous, when influenced by popular factions,
"or the cabals of an ambitious prince. Accordingly
"it has often happened, that, inſtead of procuring
"the good of the realm, they have produced con-
❝ fufion, and the fubverſion of the laws."
He adds, "It may be farther obferved, that the
"violent method practifed by Richard to attain to
"arbitrary power, I mean, forced elections, and the
"opinions of the judges, was exactly copied in our
"days, by one of his fucceffors, who had, without
“doubt, the fame intention. But we may add, that
"the attempts of theſe two monarchs, ferved only to
promote their own deftruction, and that their de-
figns came to the fame cataſtrophe."
16
re
Richard was depofed, and this is one of the articles
on which the fentence of depofition is founded.
"That although by law and cuftom, the people
"´ought to be free to chooſe knights to repreſent them,
"to propound their grievances, and provide remedies
"for them; yet the fame king, that he might obtain
"his own raſh will in parliament, directed by writs
"often to the fheriffs, to fend fuch as he named,
"fome of whom he induced by favours, others by
"threats and terrors, and others by bribes, to con-
fent to things prejudicial to the kingdom, and griev-
"ous to the people."
Thefe
L [ 368 ]
2
1
Theſe things were written for our inftruction, I
fhall not fav-for the inftruction of us upon whom
the ends of the engliſh conftitution are come. But
it is for us to judge, whether the profpect we have
of improvement in publick or private virtue in the
ages to come, entitle us, in the prefent, to unbend
the caution which paft examples fuggeft to us, or
to hide from our eyes, truths calculated to keep
it alive, which are recorded in the faithful page
of hiftory.
I would obferve, in the fifth place, upon this
head,That of all the dangers which can affect
the rights and freedom of election, none is com-
parable to that which may come from the houſe
of commons, if that fhould ever be packed, de-
bauched, or corrupted to betray the liberties of
the people, as we have feen it was in the reign of
Richard II. The houfe of commons is the falt of
the conſtitution; but if the falt hath loft it's fa-
vour, wherewithall fhall the conftitution be pre-
ferved. Here, as a fafe harbour, the rights of
election, as the chief of the privileges of England,
ought to be fecure; but if there they are deſtroyed,
it may be faid, as Cicero, fpeaking of the battles
of Syracufe, fays of the power and glory of the
Arhenians, in hoc portu libertatis naufraugium factum
fuit.
No doctrine, therefore, can be more alarming or
dangerous, than that which tends to fet the houſe of
commons above the reſtraints of the conftitution,
and to deliver them from the checks of all law, in the
exerciſe of their right of determining elections. If
they are invefted with fuch an uncontrouled power
in that judicature, as is now contended for, a majo-
rity may, by means of illegal decifions, wild expul-
fions, and unconftitutional incapacities, model the
houſe for any purpoſe, as was done in the time o
Richard
[ 369 ]
Richard II. and in the parliament of 1640. By
fuch doctrines, we renounce the protection of the law,
and the fecurity of the conftitution, and deliver over
our liberties as a prey to the chance of things and
fate of times: Or we lay a foundation for a treacher-
ous ſurrender of them, if a miniſter ſhould, in any
future age, be found audacious enough to make the
purchaſe, and profligate men ready to receive the
price, fhould be appointed by arbitrary decifions to fit
in the place of reprefentatives of the peoples choice,
fufficient in number to conclude the infamous bargain,
which Richard, and the commons whom he fet in
parliament, finiſhed and executed.
Far be it from me to fay any thing to give the peo-
´ple a diſguſt to parliaments. This is not my defign,
nor was it the defign of thoſe who have faid, as it of-
ten has been in the best of times, and by the beſt of
patriots, and the ableft of ſtateſmen, that if England
ſhould ever be ruined, it would be by her parlia-
ments. On the contrary, we mean to fignify that
there lies our great fecurity, but that we muſt keep
up the out-works, in order to preferve the compleat
ftrength of the fortification.
Human nature cannot diſpenſe with curbs. they
are not more neceffary to maintain government, than
they are to controul thofe that do govern. If we give
up the checks by which the conftitution has reftrained
the houſe of commons, we endanger the being of it-
felf. For, if left without controul, in their judica-
ture of elections, they may deftroy the rights and free-
dom of election: And nothing but free elections can
fecure to us a houfe of commons upon the principles
of the conftitution, that is, a fair repreſentation of the
people's free choice.
As we therefore value the fecurity derived to the
conftitution from the houſe of commons, we muſt
affert
·
[
370 1
affert the freedom of elcctions, in order to prefervé,
not the form only, but the fubftance of the inftitu-
tion. If that will answer the end, we are fure nothing
elfe can prevent the corruption of parliament. And
with a corrupt parliament there remains not only no
fecurity for our liberties; but a houſe of commons
debauched into fubmiffions to bad minifters, or mea-
fures inconfiftent with liberty, muft demonftrably be
the fureft pledge, and in the end, with the greateſt
eaſe, effect the firmeft eſtabliſhment of the worst fort
of tyranny. It would be a tyranny eftabliſhed by law,
and apparently with the confent of the people, their
falſe repreſentatives forging the chains they are to
wear, and the ſhadow of freedom which they exhibit,
only more effectually deluding into a total lofs of the
ſubſtance, and depriving of the means of retriev-
ing it.
It is the obfervation of Machiavel, that where noth-
ing but the appearance of freedom is preferved, there
the moſt ſevere fervitude is always intended:-of the
truth of which obfervation fome modern republicks
are a proof. So mixed governments, when degene-
rated, are the worst enemies to liberty, though they
were the beſt device to preferve it. From the time of
Cinna, to the attempts of Julius Cæfar, corruption, it
is certain, had this effect in the degenerate republic of
Rome.
Tyrants that fubfift by mere force, and where the
will of a monarch is the only law of the government,
have few friends but men of the fort. But where
there is the figure of a free conftitution, and the peo-
ple feem to have a hand in making their own fetters,
by the voice of fomething in the ſhape of their repre-
ſentatives, the cowardly and corrupt are of the fide of
the tyranny. They participate in it, and are paid
for
[ 37 ]
for fupporting it, and therefore they uphold it over
the better part of the fùbjects,
No government, as has been justly obferved, was
ever more abfolute, than when the Roman Emperors
affected to rule by law, with the form of an awed, a
corrupted, and a fubfervient fenate: And of this there
was not an imperfect image in our own country in the
reign of Henry the Eighth.
From theſe examples we may learn, that we ſhall
not be fecure against danger, merely by keeping up
the antient form of our government, as we received it
from our anceſtors. We must retain its virtue and
effence. Let us therefore contend earneftly for the
conftitution once delivered to us; and with its out-
ward form, ſtudy to preſerve its inward vigour, and
not ſuffer any of our rights to be encroached upon or
invaded. Above all, let us hold faſt the rights and
freedom of election, upon which the whole depends:
And let us execrate and abjure every doctrine that
tends to enervate and endanger them, by fetting up
any unconftitutional power, or pulling down any legal
fence bounding the powers which the conftitution has
inſtituted.
Sixthly and lastly, we might reckon among the dan-
gers of the doctrine, in throwing down which, this
diſcourſe has been employed, the difficulty of the re-
medy in caſe of any wrong being committed under the
pretence of that unconftitutional power, which the
doctrine ſtrains hard to eſtabliſh; and the diſagreeable
effects, which attempts to exert ſuch a power, may at
any time produce, and which may grow more confider-
able if the pretenfions to it are perfifted in, and the
wrongs done not rectified.
Wherever there is an evil, the danger of it muſt be
greater, as the remedy is more difficult. In proportion
therefore to the value of the rights of election, the
VOL. III.
evil
A a
}
Ĺ 372 ]
x
evil of hurting them is increaſed by the difficulty of
the remedy.
The gentlemen themſelves, heedlefs of the confe
quence, in cafe their reaſoning in fupport of the
power they contend for ſhould be found to fail, have
aggravated the danger by infifting upon the circum-
ftances of the juriſdiction of the houſe of commons
being exclufive and without appeal: upon which, in-
deed, they have refted their whole argument for their
power being uncontrouled by any reftraint of law.
For the unavoidable confequence is, that if a wrong
be committed, the conteft is directly and immediately.
between the people and their reprefentatives.
I
I am far from thinking, and I have, fomewhere in
thefe fheets, faid, there is not a defect of a conflitu-
tional remedy for ſuch an evil. The hiſtory of parlia-
ment, in inftances to which we have referred, points
out the remedy; and the daily journal of the times
rings it in our ears from all quarters of the kingdom.
The remedy moft undoubtedly is an appeal to the juft
and legal prerogative of the crown, with which the
conftitution, for the wifelt of purpoſes, has entruſted
the fovereign, and which is a fundamental of this
government: the fovereign being thereby conſtituted
the great umpire, not only between the two houſes of
parliament, but alfo between the people and their par-
liamentary repreſentation.
The power of prorogation or diffolution, interpofes
in the caſe of a contest between the two houfes: the
negative in the legislature veſted in the crown, is a
check upon their own repreſentatives, in their legifla-
tive capacity.And to that prerogative the people
may, and often have appealed by petition againft bills
paffed by both houfes of parliament. If the people
are injured by the act of their own reprefentatives, in
the exerciſe of their more collateral, incident, and in-
ferior
[ 373 ]
嘴
​ferior powers, the fame prerogative of the crown may
be appealed to for a prorogation or diffolution,
which remedy the crown has often interpofed of it's
own accord.
This great prerogative is a truft for the people, and
fubfifts for their fecurity. For that very end and pur-
poſe it was by the original compact derived from them,
together with the crown in which it is lodged, as truly
as the powers of their own reprefentatives, are deri-
ved from them by election. Both are alike fiduciary,
to be exerciſed as all the prerogatives of the crown
and all the powers of parliament ought to be, for the
common-weal of the realm.
They are much mistaken, who imagine the prero-
gative of the crown is a peculiar eftate of the king, in
which the people have no intereft: for in this alſo,
they have an inheritance as one of the guards and fe-
curities of their liberties: and the exerciſe of the pre
rogative is not the perfonal act of the prince, but the
function of the royal politick capacity of the fove-
reign, the end of which is the fame with that which
is the end of all government, the good of the people:
and all the acts of the crown are guarded with confti-
tutional checks and reſtraints, to fecure the welfare of
the community in the exerciſe of them. It is not
therefore the legal prerogative of the crown which is
the object of dread, but ufurpations of power which
affume that name, and tranfgrefs the bounds of the
truſt repoſed in the fupreme executive power.
Thus much we have faid, to affert the reality of
the remedy of the evil in queftion, and to explain the
principles upon which it is eſtabliſhed as a folid foun-
dation; which was perhaps more neceffary than to
point out the difficulty of the remedy, which is fuffi-
ciently manifeft from its very nature. Upon that,
therefore, we ſhall only fay, what every one muſt feel,
A a 2
that
[ 374 ]
1
that it is an aukward and difagreeable fituation for the
people to be reduced to an appeal from their own re-
prefentatives, whom they themſelves have chofen to
defend their rights, to profound their grievances, and
to provide a remedy for them, as where they have
placed their truft, their natural confidence ought to
be: And the proper charge and office of their repre-
fentatives is to be a check upon pernicious counfels
given by civil counſellors to the crown. The beſt
compliment that can be paid to fuch a fituation is,
that it is not a hopeleſs ftate. Neither ought it to di-
miniſh in our eyes the value of the inftitution of par-
liaments, the very term or endurance of which, as
well as their conftitution, is a fecurity againſt an ex-
tremity of power in them to do mifchief: And if
they are freely and prudently chofen, they cannot na-
turally be ſuppoſed to fall under fuch an influence, as
to require the interpofition of any external or extraor-
dinary remedy.
The effects of an unconftitutional power, however,
muft become much more dangerous, when the pre-
tenfions to it are perfifted in, and the conftitutional
remedy is not applied to rectify the wrongs that are
done by it. This may prove a very dreadfui fituation,
and the confequence may lead to dangers of the firſt
magnitude. I cannot betray the caufe of liberty fo
far as to fay, that even for thefe, if unhappily they
were to exift, there is no cure. But that is indeed a
very ferious fubject of contemplation. There is a
line there, which it does not belong to theory to draw.
Neceffity, and neceffity extreme only, can point it out.
And terrible must be the rents that let light enough
in to make this fecret legible. It is the knowledge of
good and evil, unhappily learned only by eating of the
forbidden fruit in a very great quantity*
$
* I am not, however, fo fhy as the able and learned doctor
Blackſtone, of adopting the opinion of the great Mr. Locke
upon
}
[ 375 ]
1
Pre-eminent in difficulty may that remedy be faid to
be, which is the laft effort of oppreffed liberty. And
before
upon this delicate fubject. For it is the opinion naturally taught
by a ſenſe of Engliſh liberty, and read in the unwritten volume
of the conſtitution, by thoſe who never ſtudied Treatifes on Go-
wernment. While I have the fundamental principles of the
conſtitution with me, and the great charter of our liberties writ
ten in the Revolution, I fcruple not to head the footsteps of Mr.
Locke, who was one of the greateſt oracles of the conftitution,
of civil policy, and of the divine laws of nature that are written
in the Heart of Man, as the original code of his unalienable
rights. Neither am I afraid to ſpeak out what every Engliſhman
may, and ought to think, that there is a remedy for the very
worſt fituation that things can be brought to: And I ſhall never
fhun the opportunity of faying it, when queftions of liberty,
and that concern the vitals of the conſtitution are agitated; which
are the only times that people will give themſelves the pains to
think about it. Then may that be faid, which never ought to
be unknown to the people of this country, nor forgotten by
:
them.
Mr. Locke certainly does fuppofe (and it was only fuppofing
what we all know has happened ;) that there nay be a diffolution
of the Government: And it is remarkable that he ranks among
thoſe breaches of truft in the executive magiftrate, which (accord-
ing to what Mr. Black ſtone call Mr. Locke's notions,) amount
to a diffolution of the Government, not only all unconſtitutional
means uſed to corrupt the reprefentatives, and influence electors;
but alſo any method taken to preferibe what manner of perfons
fhall be chofen. "For," (fays he) "thus to regulate candi-
"dates and electors, and new model the ways of election, what
❝ is it but to cut up the government by the roots, and poiſon
"the very fountain of public fecurity." The pofition of Mr.
Locke, which Mr. Blackſtone ſays, however juft it may be in
theory, he cannot adopt, nor argue from it, under any difpen-
fation of government actually exifting, is this, "that there re-
❝mains ſtill inherent in the people a fupreme power to remove
or alter the legiſlative, when they find the legiſlative act con-
trary to the truft repoſed in them: For when fuch truft is
"abuſed, it is thereby forfeited, and devolves to thoſe who
gave it."
Aa 3
But
[ 376 ]
before turning to which all ordinary means must have
failed of bringing to juſtice thoſe criminal fubjects,
who
But with the good doctor's leave, if we cannot adopt or argue
on this conclufion of Mr. Locke's under any difpenfation of go-
vernment actually fubfifting, I know not when we thall: For if
the government were come to a diffolving ftate, which must pre-
cede an actual diffolution, we ſhould not argue but act upon the
principles afferted by Mr. Locke: And I know nothing fo effec-
tual to prevent the neceffity of acting upon them, as our being
all very well acquainted with them, and feeling their proper
energy. For which reaſon there may be very fit occafions for
arguing upon thefe fundamental notions, as Dr. Blackftone would
call them, which lie below all other foundations. And, however
well the important poft of liberty may be fecured at prefent, it
can never hurt lawful government, that we fometimes ſpeak of
the cure for tyranny, to which all unlawful ufurpations of power,
and invafions of the conftitution, are but the approaches.
I ſhall therefore take the liberty on this occafion to ſay, that
I preſume it is found doctrine, that parliament itſelf has not a
power to make a law deſtructive of the liberty of the people, be-
cauſe they are fent to parliament to preferve and not to deſtroy
the people's rights. And if the whole three branches of the
fupreme power of government were to combine to fubvert the
conftitution, which is their own foundation, and to overthrow the
rights and liberties of the people, there is in this conftitution
a reſerve, in the first principles of all power, of a remedy, though
it is an awful one, for fo tremendous an evil. For our liberties
and privileges muſt live when we are dead. Natural liberty is
the firft ſtate of all men; but civil liberty is the ſecond nature of
Englishmen.
When the ends of government are deſtroyed by the abuſe of
it, the rights of government ceafe, and power reverts to its own
fountain. When the original compact is broken, the bonds of
the conſtitution are diffolved, and the body politick refolves into
its conſtituent elements. In that extremity, and till fuch an
extremity, the laft remedy is not to be looked to; in that hour
of neceffity, firſt principles, the virtue of which can never eva-
porate, ſtep forth with their fupreme authority to repair the
breaches, and reſtore foundations,
That is an unnatural ſtate of things, and therefore is painful.
The conflitution feels the anguifh of an univerfal diffoluti n.
But
}
[ 377 ]
who by their influence and their power, their counfels
or their conduct, have been the bafe inftruments of
overturning the rights of the people. But all invafions
of the conflitution have a tendency to open the acceſs
to that ſtate of things, which might call forth the moſt
difficult and difmal of all remedies. And thoſe who
are not properly ala: med at finaller dangers, take the
readieft courfe to bring on the greateft evils and mif-
chiefs, to which, in their nature or confequences they
can lead. To fuch a calamity, were it to happen,
thofe
But he is then in a parturient ftate, and from the teeming
womb of her diffolving frame, under favourable aufpices, the
fair child of liberty is, in the propitious moment, born again,
and cloathed afreſh with the beautiful array of a legal govern-
ment.
God forbid! that we, or our pofterity, fhould ever ſee this ter-
rible ſcene, or ſhare in the agonies o: fuch a painful regeneration.
Who, fo loſt to humanity and to the welfare of mankind, as to
occafion or invite the dread appeal made by the Countess of
Arundel? who in the face of Henry the IIId. firſt invoked the
broken liberties of England, and then faid, therefore I,
"though a woman, with all your natural ſubjects, do appeal
❝from you to the Tribunal of God, the great and terrible
judge, let him revenge us." At which words, as the Histo
rian relates, the tyrannical king was confounded, and held h's
peace, becauſe his own confcience told him the ſpoke no more
than the truth. But the principle of lawful refiftance, as the
avenger of forfeited allegiance, and of an infracted conftitution,
is the great ballancing power of this government, and its own
force is everlaſting.
This is the myſtery; which is hid from many ages and gene-
rations; and happieſt theſe from whom it is hid; but it has
been too often revealed. It is the great arcanum of the confti-
tution, which lies locked up under all the bolts and bars with
which the love of ourſelves, the love of our country, the love of
pofterity, can faften it in; and nothing but the fame keys cah
unlock the folemn temple in which it is depofited; a temple
not to be approached without reverend incenfe to the God of
Liberty, whofe unconfecrated priests facrifice her devoted ene-
mies to the injured rights of men born to be free.
A a 4
[ 378 ]
*
thofe doctrines would be deemed acceffary, which upon
falſe principles, and by a manifeft perverſion of the
law, attempt to eſtabliſh an unconſtitutional power, de-
ſtructive in its nature, difficult in its remedy, and that
in its confequences may prove fubverfive of our liber-
ties.
Here we ſhould ſhut up the argument, but the head
of danger naturally turns our eyes from argument to
evidence; and the ſubject we have been upon, hardly
permits us to quit it, without taking fome notice of
preſent appearances, which are the actual confequences
of the doctrine we have been proving to be dangerous
as well as erroneous.
Had we nothing elfe to judge from but the imme-
diate effects which we behold, the danger of this
doctrine, and of the power for a prop to which it
is coined, is too glaring to be difputed. The effects
which we fee, and to fee which, we have but to
keep our eyes open, cannot give favourable impref-
fions of the cauſe from which they proceed. A mea-
fure which the whole nation diſlikes, and cries out
againft, does not befpeak a commendation of the prin-
ciples by which it is juftified. And will an obfti-
nate adherence to fuch principles, and a purſuit of
fuch meaſures produce no danger? It is not natural
motions, but ſtrains occafioned by wry fteps, that
are accompanied with fwellings: And if thefe are not
timely reduced by emollients, they feſter, and prove
dangerous to the body.
I do not know if meaſures, which force to juſt com-
plaints, and extort lawful remonftrances are guiltless,
but I am fure the actual ſtate of government, which
for fome years has diftreffed this country, and ren-
dered us not only diſturbed at home, but contemp-
tible abroad, and has, I fupect, made us as unfecure
without, as we are unquiet within, is not innocent
even
[ 379 1
-
even if thoſe various and repeated infamous outrages,
committed by different affociations of a lawleſs ban-
ditti, who are the terror of the quiet and peaceable
ſubject, whoſe habitations and property they invade,
and even affault their lives, trampling upon the laws
of their country, and rebelling againft all order and
government. Some men, like facrilegious theives, who
fteal in midst of a conflagration, are wicked enough
to take encouragment from juit and legal remonftran-
ces, for invafions and breaches of the law, to fet all
law at defiance, and throw off all fubjection, think-
ing it fafe to deſpiſe and refift lawful goverment, when
they hear improper acts of exertions of power com-
plained of in a legal way. The truth is, mifgovern-
ment is the greateſt foe to the reſpect due to govern-
ment: And fuch unhallowed proceedings are not the
leaft mortifying circumftances that attend times of
general complaint, however juft and neceffary, nor
among the ſmalleſt dangers that accompany meaſures
which are the caufe of publick diffatisfaction and
fpreading diſcontent. It could not be faid with
more reaſon, of the people of whom it was faid, than
it may be of us, externis victoriis aliena, civilibus etiam
noftra confumere didicimus.
One thing is vifible, the kingdom at this mo-
ment is in labour, and daily brings forth petitions,
complaints, murmurings, apprehenfions. Theſe are
ferious things in fuch a country as this. No body
knows to what they may grow: And thoſe who would
moft wish to prevent bad confequences, can leaſt
foretell what may happen. It is none of my intention
to excite fedition and tumult. Motos præftat compo-
nere fluctus. But indeed there is no need of writing
to raiſe a flame in the kingdom: The fire already
burns. Nor is it at all fuprifing, if there is any juftice
in the reflection which we quoted from the hiftorian.
Rapin
ኃ
[ 380 ]
Rapin did not write the hiftory of the Middleſex election,
nor compofe his work from the news of our daily
papers, but he has told us, as we have feen, that it
is impoffible a nation can fee their liberties in the
hands of men whom they have not themſelves freely
chofen, without defiring to be delivered from fuch
oppreffion.
A fact, even in a fingle inftance, correfponding
with ſuch an obfervation, is a juft foundation of com-
plaint. But principles attempted to be eſtabliſhed,
that promiſe nothing but as many repetitions of the
fame act, as emergencies may at any time require,
and that cut up by the roots the rights that have
been injured-Theſe are not to be endured.
It is not mere empty noiſe and clamour that we
hear, which may be raiſed we know not how, and
goes as it came, becauſe there is no ground for it,
like a fudden blaze which quickly dies away for
want of fuel to fupport it. The buſineſs in hand
is a matter of right, upon which men can judge,
and that wife men will ponder, as it concerns every
member of the common-wealth. There are not want-
ing, as Sir Edward Deering ſaid, men of birth, qua-
lity, and fortune, who have been of good affiſtance
to the ftate, and are no way obnoxious to it, who
ftand forth upon this occafion, in fupport of what
they affert to be the rights and privileges of the
people of England; and the opinions of fuch men
muſt have weight with others lefs able to judge of
the wrong, but equally liable to fuffer by it.
Confidering the perfon from whom it came, it
was not an unfenfible anfwer which Gallio the Ro-
man deputy of Achaia, (a man whofe character it
was, that he cared for none of theſe things which
did not immediately concern his own government)
gave, when the Jews brought St. Paul before his
judgment
[381]
66
judgment feat. "If it were a matter of wrong, O
ye Jews, reafon would that I fhould bear with
you, but it be a queſtion of your law, look ye to
" it." This bufinefs in hand is a great matter of
wrong, and reafon will, that reprefentations and re-
monftrances upon it fhould be borne with. It is a
great question of our law, and the people ought to
look to it. And if the minifters of government do
not alfo look to it, they will ill look to themſelves.
For minifters are but the ſervants of the people, and
if the people are not ferved, much more if they are
hurt, they will not only not fupport, but they will
oppoſe, till they pull down thofe who do not ferve
them.
It has been well obferved, that it is an error to
which thoſe at the helm are frequently liable, to
difregard the complaints of the people. Being al-
ways furrounded with Flatterers, or ignorant of what
paffes any where but at court, they are apt to ima-
gine, that having a few of the great men for them,
the rest of the people are to be counted as nothing.
But it always has happened, and it always will hap-
pen in fuch a country as this, that thofe who reafon
in this manner, find at length to their coft, that the
great men, and kings themfelves, have no more
power than private perfons, when unfupported by
the people.
It is even very liable to miſtake, to judge, in all
cafes, of the ſentiments of the people by thoſe of
their reprefentatives. For as the reprefentatives de-
bate and determine upon matters brought before them
without inſtructions from thoſe they reprefent, their
refolves, in one fenfe, can be confidered but as
private opinions, though while they are within the
bounds of their legal powers, and upon matters con-
cerning which, they have by the conftitution, a pro-
pc'
[ 382 ]
}
per juriſdiction, the extent of which is not exceed-
ed, their refolutions are of force to bind the people.
Upon which account it is, that we fee from hiſtory,
the people have often appealed from the decifions
of parliaments, when thought too prejudicial to the
nation, and have, in cafes of the laft extremity,
even appealed to arms. But the conftitution is now
happily armed with remedies which, fuperfede thoſe
cauftick medicines ufed in the rude and barbarous
times. -
In fuch cafes, minifters who have deluded them-
felves in a fatal fecurity, as to the fentiments of the
people, perceive, when it is too late, that the fmall
numbers they had gained, are a weak defence againſt
the fury of an enraged nation. This was remarkably
verified after theſe kingdoms were happily and ſea-
fonably delivered from the dominion of Queen Anne's
tory parliament and miniftry. For a while, five or
fix hundred perfons who compoſe a parliament, and
perhaps fome hundreds of magiftrates in towns, and a
few freeholders in counties, who, by ways and means,
may be got upon particular occafions to prefent ad-
dreffes of approbation, may be paffed upon the world
as fpeaking the fenfe of the body of the nation, and
the reft be reckoned as nothing: But when the cri-
tical time comes, the greater number must be taken
into the account, and then that of thoſe who are in
office and in truft, appears to be infinitely fmall in
compariſon of the whole.
Such reflections as thefe we would not push to
an extravagant length, nor would we be underſtood
to point at any improper applications of them. But
they are the truths of hiftory, and the experience
of paft times: And it must be a ſerious wiſh, rather.
than a vain reproach, that minifters would, in place
of fome of the idle and diffipating, not to ſay fhame-
?
ful
[ 383 ]
10
ful and flagitigous amufements, by which only fome
endeavour to qualify themſelves for their important
fituations, as if the great concerns of the nation were
lefs than play, and to be more lightly fported with
then betts fet upon the dice;-if inſtead of theſe
they would try to learn both what this country has
done, and what fhe has fuffered. By that means
they would certainly confult their own intereſt more,
and ferve their country better. They would, on fuch
an occafion as this, know the importance of the ſenſe
of the nation, and the value of national opinions
and inclinations.
The prefent queſtion is, in a peculiar ſenſe, a po-
pular queſtion, and there is no denying of it. The
people fupport their own rights. We might have
gueffed, if we had not ſeen it, upon what fide the
popular opinion would be. But popular opinions are
no objects of contempt. Even fuch a tool of a court
as Bacon, could tell his mafter upon a very grave
and weighty occafion, "That popular opinions are
"to be regarded, and that kings had always done
" fo."
}
S
It was the parliamentary language of old, the peo-
ple of "
England muſt be fatisfied." Till they are,
they will not be quiet. Flamma per incenfas citius
fedetur ariftas. We may be told of the mob petiti-
oners of London, of Middleſex, Yorkshire, &c. But
I will tell thoſe who talk in that ftile, fuch mobs
as theſe petitions come from, will decide any contro-
verſy that can be raiſed in England, if the gauntlet
is thrown. And whoever they are, that make a
mock of petitioners, they may depend upon it, the
ſtandard of liberty will be followed, when the ban-
ner of power has but few to attend it; and thoſe
more likely to defert their colours, than to fupport
the cauſe in a day of trial: Men love freedom, and
liberty
[ 384 ]
liberty is an Etna which burns in the breafts of
Engliſhmen, with an extreme hatred towards thofe
who oppoſe it.
$
One cannot help being forry to fee the reign of the
firft native Prince of the houfe of Brunſwick, difgrac-
ed, as it has been, with complaints of invaſions of
liberty. Under the benign government of his ma-
jeſty's two illuſtrious anceſtors, whofe memory theſe
nations revere, the bittereſt enemies of the proteſtant
fucceffion could not, even in the days of the moft ma-
lignant difaffection, and when every corner was ran-
facked for ground of clamour, bring fuch an accufa-
tion. Theſe princes were the glorious protectors of
the liberties of Europe, and the faithful guardians of
the rights and privileges of thefe kingdoms. They
knew that the crown they wore, was the gift of that
liberty, which it was given to maintain.
His preſent majefty, alfo moft graciouſly afſured his
people, when he firſt afcended the throne, that their
liberties were as dear to him as any jewel of his crown;
and, indeed, they are the brighteft jewel in it. Ne-
vertheleſs, complaints are not new-complaints of
fuch an impreffion, that for the pattern of them, we
must go back beyond the revolution-complaints that
cannot but be grievous to the real friends of the hanó-
ver family. It is, however, a happy circumftance,
that even complaints of this fort do not reach the juſ-
tice of his majeſty's royal difpofitions, or affect the
loyal affection of his faithful fujects. To his majeſty's
own paternal goodneſs, will chearfully and with grati-
tude be attributed the acts of his government in fa-
vour of the liberty of the fubject. The conftitution
tells us where to lay the blame of meaſures that are
injurious to the rights of the people, and of a tenden-
cy to rob his majeſty of the hearts of his ſubjects,
which are the beſt garriſon of the kingdom. We
know
載
​T 385 ]
know where refponfibility is; and we know the power
that can make thoſe who are refponfible, amenable,
and from which, no power nor protection is able to
fecure the greateft, if once it is effectually roufed to
call the criminal to account. Nor let any one draw
afide the veil that hides the throne in facred reverence.
His majeſty may adopt the words of his illuftrious
predeceffor Queen Elizabeth, who was not behind in pe-
netration with any prince whoever wore her crown,
in her anſwer to the commons of England, on prefen-
ting their thanks for annulling monopolies, which had
become a national evil; "I befeech you," ſaid that
great queen, "that whatever miſdemeanors and mif
"carriages others are guilty of, by their falſe ſug-
geftions may not be imputed to me. Let the tefti
cr mony of a clear confcience, entirely, in all refpects,
"excufe me. You are not ignorant, that prince's
"fervants are oftentimes too much fet upon their
"own private advantage; that the truth is frequent-
"ly concealed from princes, and they cannot them-
"feves look narrowly into all things, upon whoſe
"fhoulders lieth continually the heavy weight of the
"greateſt and moſt important affairs."
66
>
Thefe are the minifters of the crown, and of theſe
only, the people are to think when they complain.
It is an old ſaying, but the proof of it is no novelty,
nor are the examples of it likely ever to be ſcarce,
nemo imperium flagitio que fitum bonis artibus exercuit.
Men are too fond of power, and minifters truſt too
much too it, however they got it into their hands, to
be over fcrupulous about the means of preferving it,
when theſe are dictated by the neceffity of the condi-
tions on which it is held. Evil devices to cure blun-
ders, are generally the child of the fame imbecility
that committed them. When governors, who can-
not conduct themſelves, want extraordinary remedies
on particular emergencies, they are eafily led into
fcrapes
[ 386 ]
fcrapes, by confulting the ftate quacks which fuch
forts of minifters employ; for theſe poor undertakers
are but a kind of horſe doctors, who will preſcribe very
voilent phyfick, without confidering whether the con-
ftitution can bear the fhock it will occafion; fome
late meaſures, if I miſtake not, are very much of this
ſtamp; and the writings by which they have been de-
fended, to me appear to have the fame colour.
1
Minifterial meafurès, we know, muft not only be
ſupported, but it is understood to be neceffary to
justify them, however rafhly undertaken, and though
fincerely repented of in fecret, when the confequences
are ſeen. But nothing but pure madneſs could lead -
to juſtify an unconftitutional act, by laborious endea-
vours to cram down our throats principles pregnant
with the worst of evils, and infinitely more alarming
than any fingle inftance of misconduct which they
could be uſed to palliate. It is not by fuch doct-
rines as have been broached, whatever pains may have
been taken to ſpread the vehicles which convey them,
that the flame which has been raiſed, is to be quen-
ched. Gentlemen are miſtaken, if they think the
people a fit fubject for fuch impofition to work up-
on. Our privileges are not to be written away, the
conftitution is not to be conquered by one affault.
The acts of government cannot prevail over the prin-
ciples of the conftitution; nor will the rights of the
people yield to be expedients of any adminiſtration.
If writers, whofe works we have feen, conceived the
people of England were fuch fools as to fwallow the
poiſon they have adminiſtered, their conception will
affuredly breed nothing but their own confufion, and
the ruin of thoſe in whofe fervice their labours have
been employed.
The cry of the nation is, legis præfidium quod ini-
quitas eripuit reftituatis: And a much better fervice
would
**
2
[ 387 ]
{
would have been done to the offenders, as well as to
the people whofe rights have been injured, by coun-
felling to restore what had been taken away, rather
than affifting to defend the injury. It is the fecond
part of true wiſdom to mend an error as foon as pof-
fible. And upon this fubject alfo, inftruction may
be had from the fame Queen Elizabeth, who knew the
weight of the fcepter fhe fwayed, as well as any
prince that ever fat upon the Throne of England,
in her ſpeech to the commons already alluded to,
"I owe you my hearty thanks and commendations
"for your fingular good will towards me; not only
"in your hearts and thoughts, but which you have
"openly expreffed and declared, whereby you have
"recalled me from an error proceeding from my
"ignorance, not my will-Thefe things had un-
66
defervedly turned to my difgrace, to whom nothing
"is more dear than the fafety and love of my peo-
"ple. The fplendor of regal majeſty hath not fo
"blinded my eyes, that licentious power fhould pre-
"vail with me more than juftice.-The glory of the
name of a king may deceive princes that know not
"how to rule, as gilded pills may deceive a fick
"patient. But I am none of thoſe princes: For I
"know that the common-wealth is to be governed
"for the good and advantage of thoſe that are coin-
"mitted to me, not of myself to whom it is entruf-
❝ted; and that an account is one day to be given
"before another judgment feat. I think myſelf moſt
<<
<<
happy, that, by god's affiftance, I have hitherto fo
profperouſly governed the common-wealth in all
"refpects; and that I have fuch fubjects, as for
"their good I would willingly leave both kingdom
" and life alfo."
Minifters, who at any time defpife petitions and
complaints of the people, will not alfo defpife the
VOL. III.
confequences
B b
}
[ 388 ]
confequences to themfelves. It is long fince the li-
berties of England had a facrifice: But it has been
thought by very wife men, that it does look very like
as if judgment would at laft begin. The people of
England as a beaft with many heads, and if once
they are angered, they rage like a tumultous fea.
It is to no purpoſe to complain of their being fuf-
ceptible of commotion, while caufes of diſcontent
are not kept at a distance. There are humors in the
political body, as well as in the natural, and if they
are not removed but ftirred, they will do hurt.
The more eafily the people are exafperated, the more
criminal it is to provoke them, becaufe if they are
driven to extremes, it may prove true which has been
faid in a particular ftile of language, that the mid-
wifery of any occafion will ferve to produce the pro-
digious iffues of their madneſs. If the country, as
is fometimes alledged, is ready enough to bring forth.
troubles of itfelf without fowing, it is very needlefs
to through the feeds of them into the ground, only
to make the harveft more plentiful.
In this nation the reproach of invaded liberty will
not be fuffered to remain, whatever may be neceffary
to wipe it away. And if there is a man, or a mini-
fter in this country, of whom, in any fenfe, or in
any extent of the words, it can be ſaid Vitia, quibus
folis gloriatur, funt evertere imperium, etiam cum em-
peratoris amicum ageret, it would be but kind to whif
per into his ear, the admonition given to a Roman
Governor, to incline him to treat the people with
goodness and lenity, imperaturus es hominibus qui nec
totam fervitutem pati poffunt. But as for the liberties
of England, they are too firmly eſtabliſhed to be
eafily deftroyed. One may venture to prophefy, even
in prophetick language, "That in that day, when
"their enemies lay fiege against them, they will
prove a burthenfome ftone, that will cut in pieces
#
"all
£ E
389 ]
}
"all thoſe who are gathered together againſt them.'
Convelli fine exitio convellentium non poffunt.
Such are the reflections of one, no matter who,
if he is but a fincere lover of his country. What-
ever weight is in them, is derived from the fubject;
for nothing could be faid to add to the weight of
it. I did not follow the example of the two au-
thors, whoſe treatifes I undertook to confider, by pré-
facing this differtation with a vindication of my mo-
tives; and I ſhall not add to the length of it, which
aftoniſhes myſelf, by explaining them. Thefe, in all
cafes, are beft to be gathered from the tenor of writ-
ings themſelves: And they are of mighty little con-
cern to the publick, and of ftill lefs importance to
the matter that has been handled. Thus much I
fhall only fay, that if the fubject had not made a
ftrong impreffion upon my mind, I hardly think any
thing elfe could have prevailed upon me to have en-
tered into fuch a difcuffion of it. And I am not
confcious of being too apt to embrace opinions
without reafon; or of being fo ductile, as to fubmit
to influence, which either fuperfedes or renders it
very convenient to ftiflè thofe that are real. Whether
what has been faid, has come from conviction or no,
ſhall be left to be decided by the matter itſelf, and
the manner in which it has been treated.
I have endeavoured to treat the fubject in fuch a
manner, as I thought, became the dignity and the
gravity of it. I do not think I have writ in the ftile
or temper of party: I had no temptation nor invita-
tion. no call nor obligation to do it: And to avoid
it, I paffed over thofe parts of the two performances
I have had under my eye, which were pointed to
any particular quarter or object, of a tendency to ex-
cite heat or ill humour, of which there are not wan-
ting in them both.
B b 2
The
}
[390 ]
The fubject itſelf is fufficient to make a very cool
man warm; and on the fide of it, which gains my
affections, the moſt moderate man may be earneſt,
and deſpiſe the imputation of being a partizan.
A wife man will firft covet his own approbation.
Faction, fire-brands, and incendiaries, every good
man will deteft: And if he admires, it cannot be
be cauſe he is in love with time-fervers and weather-
cocks, who can change opinions with the fame faci-
lity that they ſhift fides; one day the tools of tyran-
ny, and the next, inrolled among the friends of li-
berty, as their intereft, their ambition, their refent-
ments, profpects or purfuits, drive or direct.
An
honeſt man, no party will ever make fay what he
does not think, or advance what he would either be
aſhamed to avow, or afraid to juſtify: Nor will any
connection or attachment feduce him to act inconfif-
tently with himſelf. But inconfiftent with his own
fafety, as well as duty, does every man in this coun-
try act, who behaves otherwiſe than as a warm friend
of the revolution fettlement of the crown, and a zea-
lous fupporter of the liberties of theſe kingdoms, of
which that is the grand fecurity.
In defence of the conſtitution has been lent the
ceble aid of the confiderations contained in thefe
fheets. To fight for the conftitution, is a conteft, in
which it is no victory to overcome.
Cruentam atque
luctuofam' victoriam hoftibus relinquimus.-Propatria, pro
libertate certamus. In the caufe of liberty, and to
thoſe who enjoy it, any one of the people may ſpeak,
as every one of them muſt ſhare either in the pre-
judice or advantage of any meaſure that is taken, fo
far as it affects the common-wealth in general.
Nunquam verba feci pro vobis folicitior ·neque facun.
dium exercui libertatem populi armis non adfirmavi-jed
quia verba apud vos plurimum valent, ſtatui pauca dif-
ferere
[391]
ferere; que profligato bello utilius fit vobis aude quam
nobis dixiffe.
To the people of this great country, I have only
further to prefent as a model, the example and the
exhortation of an antient Briton, in a ſpeech made
about 1700 years ago, with which he encouraged his
countrymen to repel the Roman yoke; and which the
Roman hiftorian, feeling it's energy and power, has
tranfinitted, to the honour of him who made it;
"Let us," faid he " act as men that hold their li-
"berty as well as their glory dear," adding, as I fhall
conclude, BRITANNI AGNOSCENT SUAM CAUSam.
THE CASE OF THE LATE ELECTION FOR THE COUNTY
OF MIDDLESEX, CONSIDERED ON THE PRINCIPLES
OF THE CONSTITUTION, AND THE AUTHORITIES
OF LAW,
BY THE RIGHT HONOURABLE JEREMIAH DYSON.
TH
HERE is a crifis, when, on certain fubjects,
the fober remonftrances of truth and reafon are
of little avail againſt the misguided impetuofity of
public prejudice.
Happily, however, an intemperance of this kind is
generally as tranfient as it is violent; and, as its rage
abates, the minds of the people become open to con-
viction.
There is a regard due even to the mifapprehenfions
of the public and no prudent adminiftration will
be inattentive to what is called popular clamour.
A
B b 3
Indeed
[ 392 ]
Indeed the public opinion is feldom erroneous,
when founded on just information; but removed, as
the far greater part are, from the fource of true intel-
ligence, how eafy is it for thoſe who have an intereft
in impofing on the public, to miſlead them by falſe
repreſentations, and alarm them with vain appre-
henfions?
}
Impelled by fuch miſtaken motives, how frequently
have the people concurred in meaſures, which tended
to defeat the very ends they had in view, and which
were ultimately deftructive of their own good?
But there is that juftice and generofity in the pub
lic, not always to be found in individuals. When the
people, by candid and temperate arguments, are per-
fuaded that their opinions and apprehenfions are
groundleſs, they are ready to renounce them, and
to turn their refentment againſt thoſe who have de-
ceived and milled them,
Later times fcarce afford a ftronger inftance of mif-
apprehenfion, than that which poffeffes the minds of
fome perfons, with refpect to the late important deter-
mination of the election for the county of Middle-
ftx.
As few are acquainted with the true ftate of this
great conſtitutional queftion, the writer of theſe ſheets,
who has taken fome pains to inveftigate it, thinks it
the duty of a good citizen, to fubmit thofe reafons
and authorities to the judgment of the (pnblic, which
have brought conviction to his own mind,
To this end, he propoſes to fhew from the, records
of parliament, and the authorities of law, that the
houſe of commons is legally inveſted with the power
they have exerciſed with refpect to the late determina-
tion of the election for Middleſex..
Farther, that, on the general principals of reafon
2
and
[ 393 ]
and conſtitutional policy, they ought to have fuch
a power; and that, in the inftance in queftion, they
have exerciſed their power in a juft and conſtitutional
manner, not only according to the law and ufage of
parliament, but in ftrict conformity with the adjudi-
cations in the courts of Weftminſter, on fimilar occa-
fions.
That the reader may be the better able to judge of
the arguments tending to prove theſe propofitions, it
will be neceffary previouſly to ftate the proceedings of
the houſe this feffions with refpect to Mr. Wilkes ;
more eſpecially as the miſtakes and miſapprehenfions,
which poffefs the minds of fome, arife from the want
of being acquainted with theſe proceedings, or of con-
fidering them with due attention and accuracy.
Mr. Wilkes, in the laft parliament, was expelled
from the houſe of commons. Being, moreover, by
the verdicts of his country, convicted of crimes, for
which infamous puniſhments have not unfrequently
been inflicted, he thought proper to abfcond; ſo that
ſentence could not then be paffed upon him: where-
upon he was outla ved.
On the eve of the general election, he nevertheleſs
appeared in public; and, though an outlaw, was elec-
ted one of the knights of the fhire for the county of
Middleſex. His outlawry however was afterwards re-
verfed, and fentence was paffed upon him; in purfu-
ance of which, he was committed in execution, to
the priſon of the kings bench.
Being in this fituation, he himſelf brought the con-
fideration of his particular circumftances before the
houſe, by his own petition? which occafioned them
to call for the records of the king's bench, whereby
the feveral convictions against him, and the fentence
paffed thereon, appeared before the houſe.
+
}
Bb. 4
\
His
[394]
His petition having been heard and determined, he
was afterwards -charged with a 'new offence; that of
writing a preface to a letter which had been printed in
the public papers: And, in the beginning of Februa-
ry laft, being at the bar of the houſe of commons, he
confeffed himſelf the author and publiſher of the pre-
face under confideration; which the houſe then refolv-
ed to be an infolent, ſcandalous, and feditious libel:
And afterwards came to the following refolution;
"RESOLVED,
"That John Wilkes, Efq; a member of this
"houfe, who hath at the bar of this houfe, confeffed
"himſelf to be the author and publiſher of what this
" houſe has reſolved to be an infolent, fcandalous, and
feditious libel: And who has been convicted, in
"the court of king's bench, of having printed and
"publiſhed a feditious libel, and three obfcene and im-
pious libels, and, by the judgment of the ſaid court,
has been fentenced to undergo twenty two months.
impriſonment, and is now in execution under the
faid judgement, be expelled this houfe."
<<
Whereupon it was
" ORDERED,
"That Mr, Speaker do iffue his warrant to the clerk
"of the crown, to make out a new writ for the elect-
66
ing a knight of the ſhire to ſerve in this prefent par-
"liament, for the county of Middleſex, in the room
" of John Wilkes, Efq; expelled this houfe."
Mr. Wilkes, however, being nevertheless returned,
the houſe, on the 17th of February 1769, came to the
following refolution:
RESOLVED,
That John Wilkes, Efq; having been, in this feffion
"of parliament, expelled this houfe, was, and is inca-
$
pable
{
[ 395 ]
1
pable of being ´élected a member to fervé in this pre-
fent parliament.
Y
It appearing to the houſe, that there was no other
善
​candidate at the last election, it was refolved, farther,
that it was a void election: And it was
ff
« ORDÉRED,
TAK
"That Mr. Speaker do iffue his warrant to the
"clerk of the crown, to make out a new writ, for the
electing a knight of the fhire to ſerve in this prefent
"parliament, for the county of Middlefex, in the room
"of John Wilkes, Efq; who is adjudged incapable of
"being elected a member to ferve in this preſent par-
"liament and whofe election for the faid county has
been declared void.”
A great part of the freeholders of Middlefex, howe-
ver, being influenced by a miſtaken bias, obftinately
perfifted in their choice, and Mr. Wilkes was again re-
turned. Whereupon the houſe refolved the election and
return of Mr. Wilkes, to be null and void. And, no
other candidate appearing to the houſe they ordered a
new writ.
At the next election, Mr. Wilkes, notwithſtanding
the refolutions of the houſe, was again named as a can-
didate, and returned.
Whereupon the houſe again refolved the election of
Mr. Wilkes to be null and void. But it appearing to
the houſe that there were other candidates, they order-
ed the poll to be brought before them; and it appear-
ing on the face of the poll that of the candidates ca-
pable of being elected, Mr. Lutterell had the majority,
they refolved, that Mr. Lutterell ought to have been
returned, and ordered the return to be amended, by in-
ferting his name in the room of Mr. Wilkes: at the
fame time, they allowed the ufual liberty for any party
to petition on the merits of the election.
In
[ 396 ]
}
In confequence of this, fifteen freeholders did pre
fer a petition; and on hearing the merits of that peti-
tion, the houſe refolved, that Mr. Lutterell was duły
elected.
In order to fhew that the houſe of commons. is le-
gally inveſted with the power they have excercifed on
this occafion, it will be neceffary to explain the nature
and extent of the powers conftitutionally veſted in that
houfe.
}
To preſerve the equal poife, which the jealoufy of
our conftitution has endeavoured to fettle, the three or-
ders of the ſtate are inveſted with feparate, as well as
conjunct powers.
The power of legiſlation is joint; and there can be
no act of legiſlation, which has not received the con-
fent of the three eftates: But befides their legiſlative
power, each houſe has a judicial capacity, for the
maintenance, among other purpofes, of its own autho-
rity and independence. The peers, in their houſe, as
Lord Coke ſays, have power of judicature: And the
commons in their houſe alſo have power of judicature :
And farther, as he adds, both houſes together, have
power of judicature*; and, for this, he refers to the
records of both houfes.
The rule, and only rule, by which their power of
judicature is directed, is the law of parliament: which
as will appear, is part of the law of the land.
As every court of juftice, fays Lord Coke +, hath
laws and cuſtoms for its direction, ſome by the common
law, ſome by the civil and canon law, fome by peculi-
ar laws and cuſtoms, &c. fo the high court of parlia-
ment fubfifts by its own proper laws and cuſtoms.
It is declared by the records of parliament, that
all weighty matters moved concerning the peers of the
realm, ought to be determined, adjudged and difcuf-
*
4 Inft. 23.
† 4 inft. 14
fed
[ 397 ]
fed by the courſe of parliament, and not by the civil
law, nor yet by the common laws of the land, uſed in
other courts of the realm ‡.
The fame declaration for the like reaſon, fays Lord
Coke, refpects the commons, for any thing done or
moved in their houſe: and this is the reaſon, he adds
why the judges ought not to give any opinion of a mat-
ter of parliament, becauſe it is not to be decided by the
common law, but according to the law and cuſtom of
parliament and fo the judges (he concludes) in di-
parliaments have confeffed*.
1
Thus it appears, not only from the feveral declara-
tions of the judges of the land, at different times, but
from the authority of the records themſelves §, that
there is a law of parliament, which, in matters thereby
cognizable, is diftinct from, and independent of all
other laws; but is, nevertheleſs, a branch of the law
of the land.
The law of parliament is as much the law of the
land, as the common law, or any other branch of the
general law, which governs in this realm. Lord Coke
enumerating the feveral branches of which the law of
the realm confifts mentions the law of parliament as fe-
cond in order.
Cooper, afterwards Lord Cooper, in his fpeech in the
caſe of Aſhby and White, fays, the law and cuſtom of
parliament
11 R. 2. n. 7.
* By the record of parliament 31 H. 6. n. 27. the judges be-
ing confulted concerning the releaſe of fome members of the
commons, who had been impriſoned in the vacation, they an-
ſwered," that it was not their part to judge of the parliament
which was judge of the law."
§ The rècords of parliament, as Lord Coke obſerves, are the
trueſt hiſtories.
}
[ 398 ]
parliament is a part of the law of the land and as fuch
ought to be taken notice of by all perfons.
Lord Chief Juftice Holt, in his argument concern-
ing the granting of a habeas corpus to the Aileſbury
men, fays, "we are bound to take notice of the cuf
toms of parliament, for they are a part of the law of
the land; and there are the fame methods of knowing
it, as of knowing the law in Weftminſter-hall-In
another place, he fays the law and cuftom of parlia
ment, is as much the law of the land, as any other
law.
The fame language is held by Hale, Petyt, Whit-
locke, &c. and will be found, in the courſe of theſe
fheets, to have been pronounced, from time to time, by
the courts of juftice. In short, all who have ever writ-
ten, or ſpoken on this fubject, have treated the law of
parliament as part of the law of the land, and as a law
which all perfons are bound to take notice of.
It is by this law and by this only, that the houſe of
commons regulate their proceedings, with reſpect to
the various fubjects of the jurifdiction they exer-
cife.
The law of parliament may be confidered as compof-
ed of two branches: 1. The rules, orders, cuſtoms,
and courſe of the houfe, with their expofitions of, and
decifions upon
the law, with reſpect to matters within
their jurifdiction.
The cuſtoms, courfe, and common judicial proceed-
ings of a court, are the law of the court of which the
common law takes notice, without alledging or plead-
ing any ufage or prefcription to warrant them *.
That the courfe of any particular court is a law, and
that the determinations of a court make part of the
*:
2. Rep. 539
Jaw
[ 399 ]
law of the land has been held from the earliest times,
fo far back even as the year book of 11 E. 42 b.
Thus the rules, orders, and courfe of the houſe of
commons, with their expofition and decifions on mat-
ters coznizable before them, are as much the law of the
land, as the rules and orders of the court of King's
Bench, or any other court, with their determinations,
are the law of the land. Nay fuch proceedings and
decifions of the houſe of commons, are in truth more
binding than thofe of the courts at Weſtminſter, be-
caufe from the former there lies no appeal, and it is ef-
fential as will be fhewn, to the preſervation of public
liberty, that no appeal fhould lie.
2. The ſecond branch compofing the law of parlia-
ment, confifts of the ftatute law of the realm, fo far as
the fame regards the houſe of commons, or the jurif-
diction thereof.
It will not be material, on the prefent occafion, to
enquire into the various fubjects over which the ju-
rifdiction of the houſe of commons extends. It will be
fufficient, with regard to the queftion now under con-
fideration, to fhew not only from the authorities of
the moſt ancient and refpectable lawyers, but from
the records of parliament*, that the houſe of com-
mons-
1. Have the fole and exclufive power of puniſhing
their own members, as fuch; either by commit-
ment, fufpenfion, expulfion, or otherwife.
2. That they have the fole and exclufive power of ex-
amining and determining the rights and qualifica-
tions of electors and elected, together with the re-
turns of writs for the election of members, and in
fhort all matters incidental to fuch elections.
* The journals of the houfe of commons are records, and
mentioned as fuch 6 H. 8. c. 16
I. As
[400]
1. As to their power of puniſhing their own mem-
bers, by commitment, fufpenfion, or expulfion ‡,
&c. the inftances of the exerciſe of thoſe powers are
innumerable, and the occafions on which it has been
exerciſed are various.
With
For what.
Time when
+ MEMBERS SUSPENDED.
Names.
Mr. Payne,-For an offenfive fpeech: and com-
plained of as a purveyor, &c. fuf-
pended till the doubt be cleared,
whether he might ſerve,
Mr. Baber,-For granting warrants for billet-
ing foldiers.-fufpended during-
pleaſure,
Sir Jo. Jacob,-For monopoly -ſuſpended till
his cauſe be heard,
Mr. Hollis,-For offenfive words.-fufpended
3d April 1604.
1
9th April 1628.
21ft Nov. 1640;
during that feffion of parliament, 26th April 1641.
Mr. Phillips,-For fitting in the pretended high
court of justice, &c.-fufpended till
committee report, and houſe give
judgment,
Mr. Love,-For not communicating.-fufpended
till he bring certificate of having
communicated,
Sir Wm. Penn,-For fraud and embezzlement:
-fufpended while impeachment
depending againſt him,
Sir John Prettiman,-For impofing on the houſe
with regard to the protection of his.
ſervant Robert Humes.-fufpended
27th June 1661.
3d July 1661.
21st April 1668.
till he ſhall produce Robert Humes, 8th April 1670.
Mr. Culliford,-For feveral mifdemeanours.-
ſuſpended till he attend to an-
fwer.
8th March 1692.
MEMBERS EXPELLED.
Arthur Hall,-For a flanderous libel, derogatory
to the authority of the houfe, &c. 14th Feb. 1580.
Sir John Bennet,-For bribery,
William Sandys,
Sir Jo. Jacob and For monopoly,
Thomas Webb,
23d April 1621.
21ft Jan. 1640.
Mr. Taylor
[ 401 1
With regard to commitments, their power' will not
be difputed but with refpect to fufpenfions and ex-
pulfions, more eſpecially the latter, fome, with what
reaſon will be ſeen hereafter, have affected to call it in
queftion.
It appears from the lift in the note underneath, that
the houſe have fufpended their members fometimes du-
ring pleaſure, fometimes till the member fufpended
does a certain act, or till fomething depending be de-
termined; and, at other times, during that particular
Mr. Taylor,-For words impeaching the justice of the houſe
27th May 1641.
Mr. Benſon,-For ſelling protections,
Mr. Aſhburnham,-Fot receiving 5ool
French merchants,
2d Nov. 1641.
from
22d Nov. 16773
25th March 1679.
Mr. Sackville,-For afperfing the king,
Sir Frances Wythers, -For prefenting an ad-
drefs to his majefty, expreffing an
abhorrency to petition his majeſty
for calling parliaments,
Sir Robert Peyton,-For fecret negociation with
the Duke of York,
Sir Hen. Furneſe-For breach of duty, as truſtee
29th Oct. 1680.
14th Dec. 1680.
19th Feb. 1700.
18th Dec. 1707-8
for circulating exchequer bills un-
der the 5 and 6 W⚫ and M.
Mr. Afgill,-For being the author of a book,
containing many profane and blaf-
phemous expreffions,
Mr. Ridge, For fraud as a contractor,
Mr. Walpole, -For breach of truft and corrup-
tion,
Mr. Steele,-For a fcandalous and feditious
libel,
Mr. Pryſe,-For a contempt of the houſe,
15th Feb. 1711.
17th Jan. 1711.
18th March 1713.
23d March 1715.
For other inftantes, the reader may refer to the journals of 10
May 1571, 3 March 1620, 21 Jan. 1628, 21 Jan. 1640, 2 Feb:
1640, 27 May 1641, 30 Oct. 1641, 2 Dec. 1641, 2 Feb. 1641, 9
March 1641, 12 May 1642, 10 Aug. 1642, 11 June 1660, 21
April 1668, 1 Feb. 1677, 5 March 1679, 28 Oct. 1680, 13 May
1689 12 March 1694, 26 March 1695, 1Feb. 1697, 10 Feb. 1698,
22 Feb. 1398. 16 April 1701, I Feb. 1702, 19 Feb. 1711, 10
Jan. 1715, 22 Jan. 1716, 23 Jan 1720, 28 Jan. 1720, 8 March
1920, and many others.
fel on
[ 402 ]
feffion of parliament: and the cauſes of theſe fufpen
fions, it is ſeen, are as well for offences committed
without the houfe, as within it.
With refpect to expulfions, they are much more nu-
merous than fufpenfions. In the earlier times, before
the parliamentary ftile had acquired that accuracy
which it has fince attained, we find this fentence vari-
ouſly expreffed. Sometimes it is that the member be
fevered and cut off; fometimes, that he be moved; at
other times, that he be diſcharged, and at other times
that he be put out; which are only fo many fynoni-
mous expreffions fignifying expulfion :-And the word
expelled, has for more than a century paft been con-
ftantly uſed on theſe occafions.
From the note underneath, the reader will preceive
the various caufes for which this fentence has from
time to time been inflicted. Sometimes for offences
againſt religion, ſometimes for offences againſt the ſtate,
fometimes for offences againſt morality, and at other
times for offences againſt the houſe merely.
But however various the caufes of expulfion may
have been, the effect of it is conftantly the fame: For,
the neceffary confequence of expulfion is that the per-
fon expelled fhall be incapable of being elected again
to ſerve in the fame houfe of commons that expelled
him. This incapacity is implied in the very meaning
of the word itſelf. Should any man of plain fenfe,
nay ſhould any young academican, or even a fchool-boy
be aſked what was underſtood by expelling a man from
any fociety, they would certainly anfwer, " The mean-
“ing is, that he ſhall never be a member of that club,
or of that College, or of that ſchool any more."
Expulfion clearly ex vi termini, fignifies a total, and
not a partial, exclufion from the fociety or parliament
from whence he is removed. If a member is exclud-
ed
[403 ]
ed during pleaſure, or for a certain time only, that is,
properly ſpeaking, a fufpenfion and not an expulfion:
and the houſe themſelves, as has been fhewn, have made
the diftinction in many cafes, by making uſe of the
word fufpended, where they meant the expulfion to be
temporary; that is, either during pleaſure, or for that
feffion; cr till fome end be attained. But when a mem-
ber is expelled, he is not excluded from the meeting of
that day, or of that feffion, but from that parliament;
that is, from that body of which he is a member.
No one acquainted with the conftitution and prac-
tice of parliament, will deny that the houſe have a right
which is eſtabliſhed by fuch immemorial ufage, and has
been exerciſed in fuch a vaft multiplicity of inſtances,
that it is impoffible to difpute it.
It is not only evident from precedents, that the houſe
have a power of expulfion, but it is clear from the rea-
fon of the thing that they ought to have fuch a power,
otherwiſe the moſt unworthy and unfit reprefentatives
may fit in parliament, to the difgrace and detriment of
the nation. Since it is not pretended that fuch power
is, or can be, lodged any where elſe.
But to admit their right of expelling, and argue that
the member expelled may be re-elected that parliament
is to contend for the groffeft abfurdity imaginable; it
would expofe the judicature of the houfe of commons
to the moſt flagrant infult and contempt; it would ren-
der the determination of the houſe of commons, total-
ly nugatory, if the member whom they expelled to-day,
fhould be forced upon them again to-morrow. Should
fuch an extravagant abfurdity be once admitted, the
determinations of the houſe of commons, which is a
court of judicature, from whence there lies no appeal,
would in fact become of lefs weight and authority than
the loweſt court now exiſting.
•
VOL. III.
Сс
No
[ 404 ]
No man therefore who means to argue feriously and,
candidly, will contend that a member expelled to-day,
is capable of being elected the next day. For by whom
is he expelled? Why by the people of Great Britain
affembled by their reprefentatives.-And fhall a part of
the people, fhall the electors of a particular county, fay
-We will not be bound by the judgment of the ma-
jority-We will elect no other to reprefent us than the
perfon expelled? Shall they be at liberty to reſtore
him, who had no power to expel him, certainly not.
Suppofe, for the fake of argument, that the people
inftead of being affembled by their reprefentatives, had
been perfonally convened. Though in fuch caſe every
man would have a right of being prefent at an affem-
bly where his own intereft, among that of others, is in
agitation, yet will any one ſay that he may not forfeit
that right by indecorum, by treachery, by immorality,
&c.? And are not the majority of the affembly the
fole judges of his fitness to continue a member? If
they judge him incapable, may they not expel him?
and can he ever acquire a feat in that affembly again,
against the fenfe of the majority?
It is the fame where a member is expelled by the re-
prefentative body. They whom he reprefents have no
power of obtruding him into the national affembly
again, againſt the fenfe of the majority. For it is ob-
ferved, that though every member is chofen by a par-
ticular county or borough yet, as is juftly obſerved by
Lord Coke and others, when in parliament he ferves for
the whole nation. Confequently he ought not to fit in
parliament, againſt the fenfe of the majority in that
houſe expreſſed by their repreſentatives.
If for want of proper information, or due confidera-
tion of the nature of of the offence, the cauſe of ex-
pulfion fhould not, in the apprehenfion of the election
be fufficient to warrant fuch a puniſhment, yet they are
nevertheleſs
[ 405 ]
nevertheleſs bound by the determination of the majo-
rity in the repreſentative body, to whom they have re-
figned their right of private judgment in this inftance
and who are, and as will be fhewn, ought to be the fole
judges in fuch cafes.
Though the houſe cannot, and god forbid they ever
ſhould ſay whom the electors ſhall chuſe, yet they may
declare who by law are not to be chofen: And by ex-
pelling a member, they declare, without faying more
that he is incapable of being elected for that parlia-
ment.
There cannot be a ftronger inftance that, in the ge-
neral fenfe of mankind, fuch incapacity is the neceffa-
ry effect of, expulfion, than that of there having never
been any attempt made to re-elect one in the fame par-
liament, out of the very many who have been expelled
except in the fingle inftance of Robert Walpole Efq;
and then the houfe, as will be feen, declared the effect
of their vote of expulfion.
This cafe however has been cited on the other fide,
in order to deſtroy the inference, that the incapacity
contended for is the neceffary effect of expulfion.
But, from the bare ftate of this cafe, it will ma-
nifeftly appear that it proves the direct contrary of the
propofition it is cited to eſtabliſh.
Robert Walpole, Efq; after having been expelled,
was re-elected: upon which the houſe.
"RESOLVED,
"That Robert Walpole, Efq; having been, that
"feffions of parliament, expelled the houſe, was and
"is incapable of being elected a member to ſerve in
"that prefent parliament."
Now, fay they, the expulfion did not of itſelf ren-
der him incapable of being re-elected: if it had,
C 6 2
three
[ 406 ]
there would have been no occafion for fuch a refolu-
tion.
But they who advanced this argument muſt certainly
have read the refolution inconfiderately, or they muft
argue againſt conviction. The very words of the re-
folution, if they attend to them, clearly import that
the incapacity was created by the expulfion itſelfe.
For what does the reſolution ſay? not fimply that he
is incapable of being elected, but that he was, and is
incapable, &c. was incapable! by what, and when?
why by the operation of the former vote of expulfion,
and from the time when that refolution paffed. The
fubſequent reſolution does not create the incapacity,
but (by the word was) refers to the incapacity already
created, and (by the word is) declares that incapacity
ftill to have continuance. So that the laſt reſolution,
not being confined to the time prefent, but referring to
the time paft, does hereby only explain and expound
the meaning and effect of the former refolution. No-
thing therefore can be more abfurd than to urge an opi-
nion from implication only, contrary to that which is
declared in exprefs words.
Still, however, it is faid that the incapacity of being
elected is not a neceffary confequence of expulfion: and
to ſupport this ftrange propofition, they cite another
cafe of one Richard Woolafton, who was expelled 20
February 1698, and was afterwards re-elected, and
ferved in that parliament.
But this caſe, when it is examined, will by no means
prove what it is cited to eſtabliſh. For though the
houfe, fomewhat inaccurately, uſed the word expelled,
yet when the cauſe of his amotion is confidered, it will
appear that his incapacity was of a temporary na-
ture,
The queſtion put at that time was, that Richard
"Woolafton, Efq; being a member of the houſe of
"commons,
[ 407 ]
、
" commons, and having fince been concerned and ac-
❝ted as a receiver of the duties upon houſes, and alſo
66
upon births, &c. contrary to the act made in the
"fifth and fixth years of his majeſty's reign, &c. be
expelled this houfe." Which, upon a divifion of
184 againſt 133, was carried in the affirmative.
66
Thus it appears, from the words of the refolution
itſelf, that the cauſe of difqualification in this cafe was
merely temporary; and the fact is, as appears upon
record, that, at the time of his re-election, he no
longer held that office: fo that he was then unqueftion-
ably eligible.
Indeed the houſe could never be prefumed to intend
that the effect of their vote ſhould be permanent, when
the cauſe, as declared by themſelves, was only tempo-
rary for the caufe of difqualification ceafing, the
effect muſt ceaſe of courſe. But where the cauſe of
expulfion is permanent, there the effect is permanent
likewiſe, and muft operate to exclude him from the
body whence he has been expelled, ſo long as that body
exiſts. No one therefore can pretend that this cafe is,
in and reſpect, fimilar to the principal cafe under con-
fideration.
As little will the cafe of Sawyer, which has been
mentioned on the other fide, ferve to maintain the doc-
trine which it is cited to prove; that is, that a mem-
ber expelled is eligible again in that parliament. For,
in truth, Sawyer was expelled juft before the diffolu-
tion of the parliament, and he was not in fact elected
again till the ſubſequent parliament.
Upon the whole therefore, whether we confider the
obvious and cominon acceptation of the word expul-
fion, or the natural inferrence to be drawn from the
common uſage and courfe of parliament, in fuch cafes,
it is manifeft that the incapacity of being re-elected,
Cc 3
is,
[ 408 ]
is, and has always been confidered as, a neceffary
effect of expulfion.
As there is no reaſon, however, to fear the force of
any argument which can be urged against the proceed-
ings of the houſe in this caſe, let it be admitted for a
while that expulfion does not of itſelf create an incapa-
city of being re-elected, yet ftill it will appear that the
houſe of commons, not only as expofitors of their own
refolutions, but as expofitors of the common and ſta-
tute law of the land. in cafes where their jurifdiction is
competent, have a right to declare who are, and who
are not eligible as members of parliament. This
leads to the confideration of the next propofition;
which is
2d, That they have the fole and exclufive power of
examining and determining the rights and qualificati-
ons of electors and elected, together with the returns
of writs, and all matters incidental to elections.
Theſe rights they have afferted and exerciſed from
time immemorial, and have, with a firmneſs to which
we owe the liberties we now enjoy, withstood and re-
pelled all attempts made either by the crown, the peers,
or the courts of law, to ufurp, or in any degree en-
croach upon, theſe great and conftitutional points of
jurifdiction.
Attempts of this kind have been made in various.
fhapes: fome openly, and directly; others in a co-
veit and collateral manner. But that the reader
may judge for himſelf on a ſubject of fuch importance,
I will ſtate the most material contefts relative to matters
of juriſdiction, in a full and perfpicuous point of view,
according to the order in which they occur.
The first time I fhall take notice of when the com-
mons had occafion to affert their right of jurifdiction,
was in the Norfolk cafe, the 29 Eliz. 1586, which is
、༨.、
ftated
}
[ 409 ]
ftated in Carew, but more fatisfactory in D'Ewes's
journal of the houfe of commons, and which was
ſhortly thus:
The Sheriff of Norfolk received a writ, for the
election of two knights, but two days before the next
county day. By reafon of the ſhortness of time, he
could neither fummon many freeholders, nor make
due proclamation in the county, any one day before
the election. The Sheriff, notwithſtanding, on the
county day, proceeded to the execution of the writ,
and Mr. Farmer and Mr. Greſham were duly choſen.
After this a ſecond, and new writ, was delivered to the
ſheriff for a new election, which was executed likewife,
without any colour of misfeafance; and thereby Mr.
Heydon and Mr. Gresham were duly chofen: And the
indenture of their election, with the writ, were deli-
vered to the clerk of the crown, together with the
writ and indenture of the former election.
The Lord Chancellor and judges, at a meeting held
on the fubject of thefe elections, held, that the first writ
was well executed; that the firſt election was good, and
the ſecond abfolutely void. Of this their refolution
they gave notice to the houfe of commons.
Whereupon the following points were refolved by
the whole body of the houfe of commons:
1. That the firft writ was duly executed, and the
election good, and the fecond election abfolutely
void.
2. That it was a moft perilous precedent, that after
two knights of a county were duly elected, any new
writ should iffue for a fecond election, without order
of the houfe of commons itſelf.
3. That the difcuffing and adjudging this and the
like differences, only, belonged to the faid houſe.
4. Tha
C c 4
[ 410 ]
4. That though the Lord Chancellor and judges
were competent judges in their proper courts, yet they
were not in parliament.
5. That it ſhould be entered in the very journal book
of the houſe, that the firſt election was approved to be
good, and that the knights then chofen had been re-
ceived and allowed as members of the houſe, not out
of any reſpect the faid houſe had or gave to the refolu-
tion of the Lord Chancellor and judges therein paffed,
but merely by reaſon of the refolution of the houſe it-
felf, by which the faid election had been approved.
6. That there ſhould be no meſſage fent to the Lord
Chancellor, not fo much as to know what he had done
therein, becauſe it was conceived to be a matter dero-
gatory to the power and privilege of the faid houſe.
:
Thus we find that the houſe of commons, even in
theſe early days, were ſo juſtly jealous of their jurifdic-
tion in theſe reſpects, that they refolutely and explicit
ly afferted their fole right of adjudging this and the like
differences and though they concurred with the chan-
cellor and the judges, in their decifion on the merits of
this cafe, yet they were fcupulouſly careful to have it en-
tered upon record, that they received and allowed the
knights as members, not out of any regard to the reſo-
lution of the chancellor and the judges, but folely from
their own refolution.
1
The firm and fpirited conduct which the houſe of
commons displayed on this occafion, is the more re-
markable, as, during that reign, the dignity and privi-
leges of that houfe, were not always regarded with due
confideration.
Another attempt was made on the jurifdiction of the
commons in Goodwin's cafe 1 James 1, printed in the
jurnals of the houſe, and the 7th vol. of State trials.
This cafe was reprinted in the year 1704, by order of
the
[ 41 ]
the houſe of commons, on occafion of the famous de-
bate on the Ailefbury election; which will be taken
notice of in its order. The cafe of Goodwin was as
follows:
Sir Francis Goodwin was elected knight of the fhire
of the county of Bucks; but the return of his election
being made it was refuſed by the clerk of the crown:
and the return of Sir John Fortefcue, who had been
elected upon a fecond writ, was entered. Whereupon
the queſtion was put, after long debate," Whe-
ther Sir Francis Goodwin were lawfully elected and re-
turned? which was refolved in the affirmative."
Three days after, the lords fent a meffage to the
commons, that there might be a conferrence about
Goodwin's election: To which the commons anfwe-
red, "That they did conceive it did not ſtand in honour
❝and order of the houſe, to give account of any
"of their proceedings and doings."
The lords replied, that the king having been ac-
quainted with what had paffed in Goodwin's cafe,
thought himſelf engaged in honour to have the affair
debated again, and had ordered them to confer with
the commons upon it. Whereupon the commons,
by their ſpeaker, gave their reaſons to the king, why
they could not admit of this innovation. But all ·
they could obtain was, that, inſtead of a conference
with the lords, the king commanded them to confer
with the judges.
This mandate, to which the houſe were extremely
averfe, produced very warm debates. One member,
with becoming fpirit, obferved, "That by this courſe
"the free election of the country was taken away,
" and none would be chofen but fuch as pleaſed the
"king and council. Let us therefore," fays he,
"with fortitude, underſtanding, and fincerity, feek
"to maintain our privilege; which cannot be con-
"ftrued
[ 412 ].
"ftrued any contempt in us, but merely a maintain-
(C
ance of our common right, which our anceſtors
"have left us, and it is juft and fit for us to tranſmit
"to our pofterity."
'66
66
Another member faid, boldly, "This may be called
a quo warranto to feize our liberties. Our hands.
"were never fought to be cloſed before. It opens
a gap to thrust us all into the petty bag. A chan-
"cellor may call a parliament of what perfons he
"will by this courſe. Any fuggeftion may be cauſe
"of fending a new writ. Judges cannot take notice
" of private cuſtoms or privileges: But we have a
"privilege which ftands with the law.
At length, the queftion being put, whether they
ſhould confer with the judges? It was carried in the
negative, by a general voice of no conference.
In the end, a committee was appointed to prepare
anſwers in writing, to the four objections which the
king had made to the reafons urged by the fpeaker.
As the third and four objections do not apply to the
prefent purpoſe, it will be fufficient to, take notice.
of the first two.
Objection 1. "That we affume to ourfelves power
of examining of the elections and returns of knights and
burgeffes, which belongeth to your majeſty's chancery,
and not to us: For, that all returns of writs were
examinable in the courts wherein they were returna-
ble; and the parliament writs being returnable into
chancery, the returns of them muft needs be there
examined, and not with us."
Our humble answer is, that until the 7th year of
King Henry the 4th, all parliament writs were re-
turnable into parliament, as appeareth by many pre-
cedents of record, and confequently the returns there
examinable,
Although
1
[ 413 ]
Although the form of the writ be fomewhat altered
by this ftatute, yet the power of the parliament to
examine and determine of elections remaineth; for
fo the flatute hath been always expounded ever fince,
by uſe to this day: And for that purpoſe, both the
clerk of the crown hath always uſed to attend all
the parliament time, upon the commons houſe, with
the writs and returns: And alfo, the commons, in
the beginning of every parliament, have ever uſed to
appoint fpecial committees all the parliament time,
for examining controverfies concerning elections and
returns of knights and burgeffes; during which time
the writs and indentures remain with the clerk of the
crown; and after the parliament ended, and not be-
fore, are delivered to the clerk of the petty bag in
chancery, to be kept there; which is warranted by
reaſon and precedents. By reafon; for, that it is fit
that the return fhould be in that place examined,
where the appearance and ſervice of the writ is ap-
pointed: By precedents; of which they cited many,
too tedious to be here enumerated, and then conclude,
that," Ufe, reafon and precedents do concur to
66
66
prove, the chancery to be a place appointed to
"receive the returns, as to keep them for the parlia
ment, but not to judge of them: And the incon-
"venience might be great, if the chancery might,
upon fuggeftion, or fheriff's returns, fend writs for
new elections, and thoſe not fubject to examination
"in parliament: For, fo, when fit men were chofen
by the counties and boroughs, the lord chancellor,
or the fheriffs, might difplace them, and ſend out
"new writs, until fome were chofen to their liking."
"C
દર
66
Objection 2. That we dealt in the cauſe with too
much precipitation, not feemly for a council of gra-
vity, and without refpect to your moft excellent ma-
jefty, who had defired the writ to be made: And,
being but half a body, and no court of record alone,
refuſed
تم
[ 414 ]
efufed conference with the lords, the other half, not-
vithſtanding they prayed it of us.
Our humble anfwer is, to the precipitation, that
we entered into this caufe, as in other parliaments of
like cafes hath been accuſtomed; calling to us the
clerk of the crown, and viewing both the writs, and
both the returns; which hath been warranted by con-
tinual ufage among us.
Concerning our refufing conference with the lords,
here was none defired, until after our fentence paffed;
and then we thought, that, in a matter private to
our own houſe, which, by rules of order, might not
be by us revoked, we might, without any imputation,
efuſe to confer. Yet, underſtanding, by their lord-
hips, that your majefty had been informed againſt
s, we made hafte to lay open, to your majeſty, the
✓hole manner of our proceeding; not doubting,
hough we were but part of a body, as to make new
aws, yet, for any matter of privileges of our houſe,
we are, and ever have been, a court of our ourſelves,
of fufficient power, "to difcern and determine, with-
" out their lordships, as their lordships have uſed
"always to do for theirs, without us.'
In return to this, the king replied, that he had
feen and confidered of the manner and the matter:
He had heard his judges and his council; and that
he was now diſtracted in judgment. Therefore, for
his farther fatisfaction, he defired, and commanded,
as an abſolute king, that there might be a conference
between the houſe and the judges.
This unexpected meffage occafioned great amaze-
ment in the houſe, but, at length it was propofed to
petition the king, that he would be pleafed to be
prefent at the conference himſelf. This difputatious
monarch
;
i
[415]
monarch gladly accepted the propofal, and faid that
he would be prefident himſelf.
At this conference, the king acknowledged, that
the houſe of commons was a court of record, and
a judge of returns. At length this conference pro-
duced a kind of compromife. It was agreed, that
both the members fhould be excluded, and that a new
writ fhould iffue; to which the commons with diffi-
culty conſented, at Goodwin's own particular defire,
éxpreſſed in a letter from him to the fpeaker, which
was read before the queftion was put, and wherein he
preffed the houſe to confent to the propofition, chu-
fing rather to wave his right than be the occafion of
a quarrel between the king and the commons.
Nevertheleſs, many members were greatly diffatif-
fied, even with this conceffion. It was faid by one,—
"We lofe more at a parliament, than we gain by
"a battle. The authority of the committee was only
"to fortify what was agreed on by the houſe for
"anfwer, and they had no authority to confent.
It was further urged by another, in thefe terms
"We ſhould proceed to take away our diffention,
"and preferve our liberties: We have exceeded our
66
commiffion, and drawn upon ourſelves a note of
"inconftancy and levity."
Thus we fee, that, even in thefe fpiritleſs days,
when the fovereign exerted himſelf in the higheſt tone
of prerogative, the commons boldly afferted their right
of juriſdiction; and the king perceived by the tem-
per and arguments of the houfe, that he had no
profpect of becoming, as he intended, maſter of
elections.
Rapin very juſtly repreſents this attempt of the
king's, as an evidence of his aiming at abfolute power:
And may be added, that had he fucceeded to his
wifh
[416]
with in this attempt, it would have enabled him to
affume that abfolute power in fact, which he arro-
gated in words.
No veftige, from this time, I believe, appears,
where the exclufive jurifdi&tion of the houſe of com-
mons, with refpect to elections and matters incidental
thereto, came in queftion, till juft before the reſtora-
tion, in the cafe of Nevil against Stroud+; which
was an action on the cafe brought in the common
pleas, against the defendant, as ſheriff of Berkſhire,
for a falſe return. The record was delivered into par-
liament, and was afterwards, by order of parliament,
adjourned into the exchequer chamber, but was
never determined. It was nevertheleſs ftrongly urged
in this cafe, "That as it concerned parliamentary
privilege, the common law could not intermeddle
"with it."
66
I the rather mention this, becauſe the courts of law
adopted this opinion in cafes I fhall hereafter take
notice of.
In the year 1672, the commons were again under
the neceffity of afferting their jurifdicton. When the
Earl of Shaftsbury was Lord Chancellor, writs iffued,
during a prorogation of parliament, for electing mem-
bers in the room of thoſe that were dead: The king
himſelf was fo cautious, as to the regulating of this
proceeding, and had fo much regard to the privileges
of the houſe of commons, that, at the next feffion of
parliament, 5th of February 1672, he spoke to the
houſe of commons from the throne in theſe words:
"One thing I forgot to mention, which happened
"during this prorogation: I did give orders for the
† 2 Sid. 168.
It was ufual, about this time, for committees of the houfe
of commons to meet in the exchequer chamber.
"iffuing
[ 417 ]
"iffuing fome writs, for the election of members,
"inſtead of thofe that are dead; that the houſe might
"be full at their meeting: And I am miſtaken, if
"this be not according to former precedents. But
"I defire you will not fall to other buſineſs, till you
"have examined that particular; and, I doubt not,
"but precedents will juftify what is done: I am
"as careful of all your privileges as of my own
"prerogative."
'
The 6th of February 1672, the houſe of commons
took the matter into confideration; and feveral prece-
dents being cited, and the matter at large debated, and
the general fenſe and opinion of the houſe being, that,
during the continuance of the high court of parliament
the right and power of iffuing writs for electing mem-
bers to ſerve in this houfe, in fuch places as are vacant,
is in this houſe, who are the proper judges alſo of elec-
tions and returns of their members.
Thereupon it was refolved, "That all elections, up-
on the writs iffued fince the laſt ſeffion, are void: And
that Mr. Speaker do iffue his warrant to the clerk of
the crown, to make out new writs for thoſe places."
Which was done accordingly.
}
Not many years after, that is, in the 26 Car. 2. an at-
tempt was made to encroach on the exclufive privilege
of the houſe in matters of election, by endeavouring
to eſtabliſh a concurrent jurifdiction, in the caſe of
Barnardiſton againſt Soame *.
This was an action on the cafe brought in the King's
Bench, againſt the defendant, as fheriff of Suffolk for a
double return. The election of the plaintiff had, up-
on examination in parliament, been judged good, and
they had committed the defendant for making this dou-
ble return. Nevertheless, the jury found a verdict for
the plaintiff, with 800l. damages.
It
2 Lev. 114. Pollex. 470. 3 Kep. 365, 369: 389, 664. 7
St. Tr. 428.
+
[ 418 ]
It was moved however in arreft of judgment, that
the action did not lie; and among other reafons, it was
urged, That the falfity or verity of the return was
"only examinable in the houſe of commons, who are
"the fole judges and will punifh fuch falfities, as they
have done in the prefent cafe."
Judgment however was given for the plaintiff.
Lord chief Juſtice Hale, in this cafe, bid all perfons
about him take notice, that, they did not determine the
right of election, for the judgment in that cafe belong-
ed to parliament; but, he faid, fince the houſe of com-
mons have determined the right, he thought they might
follow their judgment, to repair the plaintiff in dama-
ges.
This judgement, nevertheleſs, was afterwards reverſ-
ed in the exchequer chamber, by the opinion of Chief
Juſtice North, and five other judges, againſt two; thể
chief, with the five other judges, holding, that the ac-
tion did not lie: And this judgment of reverfal was. af-
terwards affirmed in the houſe of Lords *.
After fuch a folemn reverfal of the judgment of the
King's Bench, and an affirmative of that reverfal in the
houfe of lords, it might have been expected that this
point would never be moved again. Yet in the 33 car.
2. it came again in difpute in the cafe of Onflow
againſt Rapley t; which was a double return, and a
verdict thereupon for the plaintiff. But, upon motion
in arreft of judgment, it was held clearly by the whole
court, that the action did not lie. They were unani-
mous that they had no juriſdiction of this matter; and
went fo far as to fay, "That it would be great pre-
"fumption in the court to meddle with elections to
parliament, before the matter hath been determined
"in parliament."
(C
* 1 Lutw. 89.
† 3 Lev. 29. 2 Vent. 37.
Sometime
[ 419 ]
Sometime after the refolution, in the 12th Wm. 3 I,
a farther attempt was made, in a caſe ſomewhat diffe-
rent from the laft, to give the courts of law a concur-
rent juriſdiction with the houſe of commons.
This was in an action on the cafe brought in the com-
mon pleas, by prideaux againſt Morrice §, for a falſe
return, before a determination in parliament, and the
court were clearly of opinion that fuch an action did
not lie.
In this cafe Chief Juftice Trevar delivered the opini-
on of the court in the following words:
sc
"That this action would not lie before the election
was determined in parliament, which was the proper
court to determine this matter. If it ſhould lie,
"this inconvenience might follow, viz. the verdict
"might find contrary to what the parliament might
"hereafter determine, which is not to be allowed; for
"it is plain that, if the parliament had determined
againſt the plaintiff he could never afterwards have
this action."
6
"It is true, in courts which have.concurrent jurif-
"dictions, there cannot be different judgments in one
" and the fame cafe; becauſe the determination muſt
"be in that court, which was firft poffeffed of the
"caufe, for if an action is brought for the fame mat
ter in one court, the party may plead in the abate-
"ment, that it is depending in another; and if judg-
I take no notice of the cafe of Norris againſt Maudit, as
that was an action for a falſe return, grounded on the ftat. 23 A.
6. c. 15. and does not apply to the queſtion under confideration.
See 5 Mod. 511, Comb. 430.
1 Lutw. 82. Nelf. Lutw. 31. Salk 502. Holt 523. 8. St.
Tr. 9.
VOL. III.
D d
ment
[ 420 |
"ment is given in the first action, then he may plead
"it in bar to the laft."
But, in this cafe there may be different judgments,
becauſe the court of parliament have a fuperior jurifdic-
tion in this matter*.
A writ of error was brought upon this judgment in
the court of king's bench, and the judgment was there
affirmed.
Nevertheleſs, fuch is the contentious fpirit which
has at all times attended elections, and fuch the ani-
moſity with which each party oppoſes the other, that the
exclufive right of juriſdiction of the commons, in theſe.
matters, did not long remain uncontroverted, but
came again in queftion, in the famous cafe of Afhby
against White, and others †, in the 2d Ann.
This was an action upon the cafe brought againſt the
defendants, as conftables of Ailesbury, for refufing to
receive his vote in the election of two burgeffes for
that borough. A verdict is found for the pliantiff,
and it was afterwards moved in arreft of judgment,
that the action was not maintainable; and it was held,
by the opinion of three judges, againſt Holt Chief
Juftice, that the action did not lie.
In the end, however, this judgment was reverſed,
upon an appeal to the houſe of lords; and judgment
was given for the plaintiff.
But the commons warmly refented this attempt to
deftroy their independence t, and fuch violent dif-
* The report of this cafe in the French edition of Lutw. 89.
is to the fame effect; but the chief justice is there made to fay
further, "That the houſe are the proper judges.
† Salk. 19. 3 Salk. 17. 6 Mod. 45. Holt 524. 8 St. Tr. 89.
They voted it a breach of the privilege, and committed
all the parties concerned, lawyers, &c.
1
putes
[ 421 ]
putes aroſe between the two houfes, that it was judg-
ed proper to put an end. to them by proroguing the
parliament.
The higheſt reverence, no doubt, is due to the
judgment of that, fupreme court of judicature,
the houſe of lords; but an infatiate appetite for
power is natural to all bodies of men; and if the
judgment of that auguft affembly may be prefumed
to have lefs authority in one cafe than another, it
muſt certainly have the leaft weight in this, wherein
their judgment directly tended to enlarge their own
juriſdiction, and ultimately to give them a manifeſt
afcendency over the third eftate in the kingdom, and
confequently over the liberties of the people of Great
Britain.
It must be premiſed likewife, that great difference
is undoubtedly due to the opinion of that eminent
Chief Juftice, Lord Holt; at the fame time it must
be acknowledged, that the three judges, from whom
he differed, have ever been reputed among the moſt
learned and able of the profeffion: And perhaps fome
of the arguments § of this great man, on this occafi-
on, will be found to depend on thofe hair-breadth
diſtinctions, which however they may fhew the fub-
tlety of argumentation, do not always tend to efta-
bliſhment of truth.
It is to be premifed, that it was agreed in this cafe
that the burgeffes, for whom the plaintiff tendered his
vote, were elected. Nevertheleſs Lord Holt, in giv-
ing his opinion, faid, that it was not material whether
the candidate, from whom he would have voted, be
chofen or not.
§ In truth, the moft material arguments urged by Lord Holt,
in this cafe, were strongly preffed before by Sir Robert Atkins,
and over-ruled in the cafe of Barnardiſton againſt Soames. See
7 St. T. L. 434 & fequent.
D d 2
In
[422]
ર
In this, however, he ſeems to lofe fight of the fub*
ſtantial merits of the queſtion. For what is the end
for which the right in queftion was eſtabliſhed? No
other than this: That certain perfons, being duly
qualified, ſhould have the privilege of electing whom
they pleaſe, being duly qualified likewiſe, to reprefent
them in the great council of the nation.
If therefore the perfon for whom they tendered
their vote be received, the fubftantial end, for which
the privilege was granted, is obtained; fo that they
cannot alledge any injury; and though their votes
may have been rejected, yet they are not thereby de-
prived of their right. They may tender their votes
on any other occafion, and there can be no danger,
that, by the rejection of their votes by the returning
officer at one time, any perfon, not of their choice,
fhould, at any fubfequent election, be chofen their
repreſentative: for it is at all times open to them to
affert their right by petition to the houſe of commons,
where, if well founded, it will be allowed and confir-
med; and their votes, if neceffary to give a majority
to the candidate of their choice, will be added to
the poll.
But, fays Lord Holt," by refufing the plaintiff's
vote, he has an injury done him, for which he ought
to have a remedy: Want of right and' want of re-
medy are reciprocal. Wherever there is injury, it im-
ports a damage. The parliament cannot judge of this
injury, or give damages to the plaintiff.
That the houſe of commons cannot give damages,
eo nomine, as damages, may be admitted; but does it.
therefore follow, that they cannot judge of the injury,
and give a remedy
His lordſhip very properly flights the notion, that
there can be no damage but a pecuniary one. But is
it
[423]
it not equally exceptionable, to contend, that there
can be no other remedy but a pecuniary one?
Undoubtedly there may; and the remedy is, to pe-
tition the houſe of commons, who will examine and
determine the matter of right, and thereby judge of
the injury, and punish the offender.
No, fays his lordship; there can be no petition in
this cafe." Was ever fuch a petition heard of in
parliament, as that a man was hindered of giving
"his vote, and praying them to give him a remedy?”
To this it may be anſwered, that, as his lordſhip
very properly obferved, in this cafe, that it was no
objection to the bringing the action, that no fuch acti-
on was ever brought before, fo it might have been
urged, that it could be no objection against the pre-
ferring of fuch a petition, had no fuch petition ever
been preferred before.
As the houſe of commons, only, have competent
juriſdiction, with refpect to the rights of election, ſo
every invaſion of thoſe rights muft, at all times, have
been cognizable before them: It was urged, as to this
point, by a member, in the courſe of the debate in
the houſe of commons, that he had known petitions
touching elections preferred by very few perfons; by
the fame rule, faid he, a petition may be prefented by
one: And in truth it appears from the journals of the
houfe of commons, of the 31st of May 1628, that
this doctrine was exprefsly laid down.
At that time, there was a queftion with refpect to
Warwick, whether the election fhould be made by the
mayor and common council, or by the commoners in
general. And a petition was produced, whereby a-
bove 200 commoners difclaimed to have any right of
election. But the petition was refufed, and the rea-
D d 3
fon
t 424 ]
1
}
fon alledged, was, "becaufe, if one commoner ap-
pear to fue for his right, we will hear him.'
""
And in truth feveral petitions have, of later years,
been prefented, merely to aſcertain the right of voting,
where there was no queſtion about the merits of the
election.
In the year 1711, which was foon after the caſe of
Afhby against White, a petition was prefented by
William Treene, and others, of the city of Coven-
try, complaining of their being debarred of their un-
doubted right of voting, and praying that their right
of voting may be aſcertained to them, and reparation
made for the injury they have ſuſtained in being deni-
ed the fame.
'
They were heard by their council, and their right
was eſtabliſhed.
Again, in 1723, a petition was preferred by Charles
Webb, and others, of the borough of Calne in
Wilts, complaining that their votes were refuſed at
the laſt election.
They were heard by their council, who admitted
that the fitting members were duly elected, and juftly
returned: ſo that the merits of election, it is feen,
were not in conteft, but the right of voting in the
petitioners was, as an abstract propofition, the only
queftion before the houſe. In the end, their right
was difallowed.
In 1724, another petition was prefented from the
inhabitants and houfe-keepers of the borough of Ho-
niton, in the county of Devon, ftating that they had
and enjoyed an undoubted right of voting, till 1711,
when the houſe determined the right of election to be
in the inhabitants paying fcot and lot only: `That the
returning officers, fince that time, had refufed their
votes:
[ 425 ]
votes: That the petitioners would have voted for the
then fitting member, had there been any poll, and
did defire to fign the return, but were refuſed as for-
merly and prayed relief; which was granted them,
by eſtabliſhing their right.
From theſe inſtances, it appears that petitions have
been preferred to parliament, merely to ſubſtantiatė
the right of voting in the elector, as an abstract quef-
tion, where there was no difpute whatever about the
right of the elected, where there was no conteſt about
the election, or the return, and, in the laft inſtance
above ſtated, even where there was no poll.
There is no room therefore for Lord Holt's appre-
henfions, that there may be a right without a remedy:
as the right concerns the parliament, fo the remedy
is to be had there only. They only can give the ſpe-
cific thing withheld: For fhould a court of law re-
cognize the right of voting, yet they cannot add the
voter's name to the poll. The houſe only can reſtore
him to the ſpecific right which has been refufed.
It is too much to ſay that every injury imports da-
mage. There are many cafes where the law only gives
the ſpecific thing contended for, without damages, as
in cafes of mandamus, &c. Nay, the common law
paid fo little attention to damages, that, in feveral in-
ftances, damages were not recoverable upon real acti-
ons; and cofts were not recoverable in any cafes what-
ever at common law.
Befides, his lordship takes for granted the very
thing in difpute, when he fays, that by refufing the
plaintiff's vote, he has an injury done him. For the
refuſal can be no injury, unless the right of voting be
firſt eſtabliſhed; and that, as has been fhewn, the ver-
dict of a jury cannot do. The houſe of commons on-
ly, are the competent judges of the rights of election,
Dd4
and
[ 426 ]
B
and the legality of votes. Their jurifdiction in theſe
cafes is part of the law of the land, which has been
recognized by feveral acts of parliament*, declaring
that "fuch votes fhall be deemed to be legal which
have been fo declared by the laſt determination in the
houſe of commons, which laft determination ſhall be
final."
Perhaps, indeed, after the right of voting has been
determined in the houfe of commons, an action at law
may, as was hinted by the other judges, be maintain-
able for the recovery of the cofts, incurred in the pro-
fecution of the right. But to contend that an action
lies before fuch determination, is to introduce the incon-
venience which Lord Trevor fo ftrongly infifted upon.
For ſhould an action be brought against a returning of
ficer for refufing an elector's vote, this would not ſtop
the proceedings of the houſe of commons upon a peti-
tion: And fhould a verdict be found by a jury, with
damages againſt the returning officer for the refufal, and
judgment be given thereon, the houſe might afterwards
determine on the petition, that he had no right of vot-
ing, and might punish the officer for admitting his
vote. So that on the one hand, he might be puniſhed
by the court of law for refufing the defendant's vote;
and he might be puniſhed on the other hand by the
houſe of commons, for admitting it: which would
be ſuch a groſs abfurdity, and ſuch a ſcandal to juf-
tice, as the laws of no country can be fuppofed to coun-
tenance, and which the laws of this country do not
countenance, for, by the ancient law of the land, re-
cognizable by act of parliament, rights of this nature
can only be determined in the houſe of commons.
A farther attempt to give the courts of law a con-
-current jurifdiction with the houfe of commons, with
*
7 & 8 W. 3. c. 7. 2 Geo. 2. c. 24.
refpect
1
[427]
}
reſpect to elections, was made in the caſe of Kendal
againſt John † the 5th Ann.
This was an action in the cafe againſt the defendant
for a falſe return: and after a verdict for the plaintiff,
it was moved in arreft of judgment, that the action did
not lie; and the judgment was arrefted, by the unani-
mous opinion of the court, who held that no action
would lie.
In this cafe, among other arguments, it was urged,
that the right in queftion was a parliamentary right;
That the remedy therefore must be parliamentary, and
could be had no where elſe but in parliament.
It was faid farther that the court would judicially
take notice of the law of parliament; that it was the
law of the land: and according to Lord Coke, ought
to have precedency.
Another reaſon affigned why there was no cauſe of
action was, that the plaintiff had had the effect of his
election; that he was returned, and had his place;
there was nothing remaining wherein he could pretend
himſelf injured, but the cofts he had been at in the
profecution, and as to them it ought to be fuppofed
that the houſe confidered them.
In short, Lord Chief Juftice Holt himſelf, in deli-
vering his opinion, faid,-" The proper remedy is in
"the houſe of commons; and we cannot meddle with
"it but they can cauſe returns to be altered, and then
"they become the fame as if the perſon was originally
returned."
Thus it appears, from the foregoing hiſtorical deduc-
tion, that every attempt which has been made to en-
croach on the exclufive jurifdiction of the houſe of
commons, in matters of election, either with reſpect to
electors or elected, has either dropped of itſelf, or been
+ Holt 629, &c. Fortefc. 104: And fee the S. C. by the
name of Coundell against John, Salk. 504.
refolutely
[ 428 ]
refolutely withftood and repelled by the houſe of com-
mons; who have conftantly, as they did in the cafe of
Goodwin, afferted and maintained this jurifdiction, as
their common right, which they derived from their an-
ceſtors.
As to their right of deciding with respect to the qua-
lifications of the elected, that has not in any of the
cafes been diſputed. Even Sir Robert Atkins, who,
in the caſe of Barnardifton againſt Soame, contended
moft ftrenuouſly for affirming the judgment, faid, "we
know that the houfe of commons is now poffeffed of
the jurifdiction of determining all queſtions concern-
"ing the election of their own members, ſo far at leaſt
"as in order to their being admitted or excluded from
fitting there."
66
1
Nay, in the caſe of Aſhby againſt White, neither
Lord Holt, nor any of the zealous Whigs of thoſe days
ventured to difpute, that the jurifdiction of the houſe
was fully competent, as to the feats of their own mem-
bers. One of the lords, at a conference, faid, “We do
not meddle with the commons right to determine their
own elections; they have a fettled poffeffion of it, which
"is a right." So that, the cafe of Afhby againt White
though cited on the other fide, concludes ftrongly
againſt the doctrine they labour to introduce.
Nevertheleſs they contend, that the right of being
elected is a common law right of which no man can be
deprived but by act of Parliament.
This in the firſt place, is affuming a propofition for
granted, which may fafely be denied. The right, as
was faid, in the cafes above cited, is a parliamentary,
right to be excercifed only in parliament, and therefore
coznizable there only, where the duty is to be execut-
ed.
Befides, none can fay that, in the prefent inftance,
Mr. Wilkes's right of being elected is taken away;
for
[ 429 ]
But
for in truth it is only fufpended during the exiſtence of
this parliament. When the body which expelled him
is diffolved, his capacity of being elected revives.
The incapacity is not perpetual, but only temporary.
To make it perpetual is what, in the better opinion
perhaps an act of parliament only can do.
the houſe of themfelves can difqualify any member
during that parliament. For let the right be a com-
mon law right, or a parliamentary right, yet, like other
rights it may be forfeited by crimes and miſdemea-
nours, &c. And who fhould judge of thoſe cauſes of
forfeitures, but the body of which he is a member?
Indeed the right of jurifdiction in the houſe of com-
mons in this reſpect, is fo fully eſtabliſhed by immemo-
rial uſage, that it cannot be difputed, without contra-
verting the fundamental principles on which the law of
the land depends. The houfe, as appears from their
journals, have determined with reſpect to the qualifica-
tions of the elected, from time to time, down from the
year 1553, to the prefent period: and it is by their re-
folutions only, that perions of various claffes are at this
day diſqualified. It is by their reſolutions, that—
*
1 Clergymen are not eligible.
The 12th October 1553, a committee was appointed
to enquire about the right of Alexander Newell and
John Fofter to fit in the houſe: and the committee re-
ported that Alexander Newell being prebendary of
Weftminster, and thereby having a voice in the convo-
cation houſe, cannot be a member of this houſe, which
was agreed by the houſe, and a writ was directed for
another burgess in his place.
We find the like refolutions the 8th February 1620,
and the 17th January 1620, and the 17th Jnuary 1661,
with refpect to other clergymen.
2. Judges are not eligible.
"The
[430]
"The 28th June 1604, it was moved by Sir Edward
"Hobbes, as a doubt to be refolved, whether if a
"member of this houſe be called to the place of a
judge, or other attendance above, during the time
"of parliament, he ought to fit here during the fame
"parliament.”—We do not find any refolution on this
point, at that time. But on
The 9th November 1605, the committee having re-
ported two members to be attendants as judges, in the
higher houſe, the queftion was put on the report, Whe-
ther they ſhould be recalled; and the houſe reſolved,
that they ſhould not.
Accordingly we meet with feveral paffages in the
journals, particularly the 11th April 1614, where the
exclufion of the judges is fpoken of as an eſtabliſhed
practice; and we ſee by daily experience, that when-
ever any members of the houſe of commons are ap-
pointed judges, new writs are iffued for the election of
others in their room; of which the numerous prece-
dents are fo notorious and recent, that it is needleſs to
refer to them.
3. Returning officers are not eligible.
The 25th June 1604, upon a motion of Mr. Moore,
to know the opinion of the houſe, whether the Mayor
of a town, &c. might lawfully be returned and ferve as
a member?
ام
The houſe refolved and ordered, and the clerk of the
houſe was commanded to enter it accordingly, that from
and after the end of this prefent parliament, no mayor
of any city, borough or town corporate, fhould be
elected, returned, or allowed to ſerve as a member of
this houſe, and if it did appear that any member was
returned, a burgefs, that preſently a new writ fhould be
awarded, for the choice of another in the room and
place of the ſaid Mayor.
*
The
ફૅ
[ 43 ]
The 14th April 1614 upon a report of the commit-
tee, that Mr. Berry, bailiff of Ludlow, had returned
himſelf.
The houſe refolved, that he ſhould be removed, and
a new choice made:-And refolved farther, That all
mayors
and bailiffs in the like caſe, fhould be removed.
Accordingly, 22nd May 1621-2, we find, that a
Mayor being returned, he was removed, and a new writ
ordered. And, on
The 2nd June 1685, the houſe refolved, that no
mayor, bailiff, or other officer of a borough, who is the
proper officer to whom the precept ought to be directed,
is capable of being elected to ferve in parliament for
the fame borough of which he is Mayor, bailiff, or
officer, at the time of the election.
4. Alien's are not eligible.
The 28th May 1624, refolved, upon the queftion,
that the election of Mr. Walter Stewart, being no na-
tural born ſubject, is void: and a warrant to go
for a
new writ for Monmouth.
5. The eldeſt fons of Scotch peers are not eligible.
The 3d December 1708, a motion being made, and
the queſtion put, "that the eldeſt fons of the peers of
"Scotland were capable by the laws of Scotland at the
"time of the union, to elect or be elected as commiffion-
ers for fhires or boroughs to the parliament of Scotland;
"and therefore, by the treaty of union, are capable to elect
" or be elected to repreſent any fhire or bor ough in Scot-
"land to fit in the houſe of commons in Great Britain ;"
It paffed in the negative.
Accordingly the 6th December 1708, a new writ
was ordered in the room of Lord Haddo, who, being
the eldeſt ſon of a peer of that part of Great Britain
called Scotland, was declared incapable to fit in the
houſe. And
The
[432]
The 18th November 1755, a new writ was ordered
in the room of Charles Douglafs, Efq; commonly cal-
led Lord Douglafs, then become the eldeſt ſon of a
peer of that part of Great Britain called Scotland.
Befides thefe, which are permanent difqualifications
of particular claffes, the houſe have in various other in-
ftances, determined and adjudged with refpect to the
qualifications of the elected. They have adjudged
perfons in execution not to be eligible,
The 24th March 1625, it appearing to the houſe,
that Sir Thomas Moncke was in execution before, and
at the time of, his election, a writ was ordered to iffue
for a new choice in his room.
The 22nd March 1661 at the election for Leinster,
the poll was denied to Mr. Coningsby, who was put in
nomination for that borough: but he being a prifoner in
in execution for debt*, and not eligible, it was adjudged,
which is very obfervable, that the denying the poll to
him did not void the election; and Mr. Cornwal and
Mr. Graham, the other candidates, were duly elected.
The 15th December 1689, on proof of bribery in
the election for Stockbridge, the houſe reſolved, that
it was a void election: and refolved farther,
"That William Montague, Efq; be diſabled from
"being elected a burgefs to ferve, in this prefent par-
liament, for the borough of Stockbridge.
29
The 10th November 1707, refolved that every per-
fon who by an act of the first feffion of the laft parlia-
ment, intituled, "An act for the better fecurity of his
"Majefty's perfon and government, and of the fuccef-
"fion of the crown of England in the proteftant line,"
is difabled, from and after the diffolution or determina-
* The reaſon why a perſon in execution is not eligible, is ob-
vious, becauſe fuch an one is not bailable; conſequently he can-
not attend to diſcharge the duty of a reprefentative: Whereas a
perfon arreſted on mefne proceſs is admiffible to tail.
tion
[ 433 ]
}
tion of the faid parliament, to fit or vote, as a member of
the houſe of commons in any parliament to be thereafter
holden, is by virtue of the ſaid act, incapable of fitting
or voting, as a member of the houſe of commons in this
prefent parliament.
The 7th December 1708, refolved, that Anthony
Hammond Efq; being a commiffioner in the navy and
employed in the out-ports, is thereby incapable of being
elected, or voting as a member of this houſe.
The 9th June 1733, refolved, that the accepting a
commiffion of Governor or Lieutenant-governor of
any fort, citadel, or garrifon, upon the military eſta-
bliſhment of his majeſty's guards and garriſons of Great
Britain, by any member of the houſe, being an officer
in the army, does not vacate the feat of fuch member.
Thus, even where the difqualification is by ſtatute,
the houſe is the only court where the ſtatute can receive
an expofition, or where any adjudication can be made.
But the following inftance is of itſelf ſufficient to
prove, that the houſe are, and have been acknowledged
to be, the proper and only judges concerning the quali-
fications of the elected. On
The 19th November 1606, not many years after the
cafe of Goodwin, the Speaker produced a note fent
unto him, as he ſaid by commandment of the Lord Chan-
cellor containing the names of certain members of the
houſe diſpoſed and employed by his Majefty fince the laſt
feffion in ſpecial ſervices, with direction to know the
pleaſure of the houſe, whether the fame members to be
continued, or their places fupplied with others.
In this lift are the names of Sir Thomas Ridgway,
Treaſurer of war, and Sir Humphrey Winch, chief
baron of Ireland, with others. And,
The 22d November 1606, upon the report, warrants
were ordered for the choice of new members in the pla-
ces of Sir Thomas Ridgway, Humphrey, Winch &c.
Thus
[ 434 ]
Thus it appears from the foregoing precedents, that
the houſe have of ancient time exercifed the fole right
of determining the qualifications of the elected: And
that this right has been recognized in one of the moſt
arbitrary reigns, by referring to their pleaſure, to de-
termine, whether certain members fhould continue, or
their places be ſupplied by others.
It appears likewife, that they have exerciſed the
right of adjudging and declaring the incapacity of be-
ing elected, not only as expofitors of the written or
ftatute law, but even where the law has been filent, they
have adjudged perfons incapable of being elected, from
the particular circumftances of the cafe, and upon ge-
neral principles of conftitutional policy.
Thus it has been fhewn, that from immemorial ufage
recognized and confirmed by the ftatute law of the
realm the houſe of commons have the fole right of ju-
dicature, in all matters refpecting elections; and indeed
it is clear, upon the principles of reaſon and the ſpirit
of conftitutional policy, that fuch a power ought to be
veſted in them and them only, as effential to the fecu-
rity of public liberty.
The conſtitution of the British government, being
of a mixed nature, the houſe of commons are the
body, whofe peculiar duty it is, to vindicate the li
berties of the people, againſt the encroachments either
of the fovereign or of the nobles.
The better to fecure the popular intereft, the com-
mons are elective; and certain people, being qualified
as the law directs, have, at ftated times, the privilege
of electing whom they pleaſe, being likewiſe qualified
by law, to act as their reprefentatives in parliament.
If any doubt or difpute arifes, in refpect to the qua-
lification either of the electors or the elected, who
does the conſtitution point out as the proper judges to
decide
[ 435 ]
decide in fuch caſes? Moft certainly, that body only,
who are conftituted as the repreſentatives of the people,
ought to determine, upon points which are ſo effential
to the preſervation of their liberties.
None will be extravagant enough to ſuppoſe, that
the people at large, can exercife a judicial power of
determining the law, with refpect to their own qualifi-
cations, or the qualifications of their own reprefenta-
tives: When the electors of a particular county or
borough have made their election, they have executed
their power; and fhould any doubt ariſe, either with
refpect to their qualifications, or the qualifications of
the elected, they then are parties intereſted in the
queftion, and confequently cannot be judges. The
queſtion is then between them and the reſt of the peo-
ple; for every member, as has been faid, though cho-
fen for a particular place, ferves for the whole nation.
Nothing therefore can be more abfurb, than to fup-
pofe that they fhould be judges in their own cauſe,
and that their determination, in a matter wherein they
are intereſted, and may therefore be preſumed partial,
fhould bind the whole community.
It would be as abfurd to contend, that any of the
courts of Weſtminſter, or any other judicature what-
ever, ſhould be allowed to take cognizance of matters
refpecting the qualifications of electors or elected.
Should any other court be admitted to a concurrent
right of judicature in fuch cafes, it would neceffarily
introduce a clafhing of jurifdiction, and a contrariety
of judgment.
Befides as it has been fhewn, that the electors of the
particular county or borough, whofe rights are in quef-
tion cannot judge of the matter in difpute, it would
be highly ridiculous to imagine, that any twelve men
of thofe electors, fhould have a power of determining
in ſuch caſe.
VOL. III.
E e
To
[ 436 ]
To contend for fuch a power in the courts of Weſt-
minſter, is not only abfurd, but it is highly dangerous.
For-
As an appeal lies ultimately from the judgments of
all the courts of Weſtminſter, to the House of Lords,
the Lords would become the ultimate judges, with re-
ſpect to the qualifications of electors and elected,
which would apparently give them fuch an aſcendancy
over the Commons, as would ruin their independence,
overthrow the balance which it has been the provident
care of our forefathers to eſtabliſh, and, in the end,
deſtroy the rights and liberties of the people.
As this power cannot, nor ought to be lodged in any
of the courts at Weſtminſter, fo neither can it be in
the king and council, or any where elſe, without being
attended with the fame inconveniences and dangers:
It can therefore only refide in the general body of the
people, by their reprefentatives; that is, in the houſe
of commons: Which is, and by the conftitution can
only be, the general court of the people.
The fatal effects of placing fuch a power elſewhere,
are obvious and certain. Therefore, no man, who is
not an enemy to the conftitution, would wish to fee
any other judicature interfere with that of the houſe
of commons. On the jurifdiction of that houſe, the
liberties of this country depend. Our wife and fpirited
ancestors, in their addrefs to James the ift, declared,
that "The privileges, liberties and jurifdiction of
parliament, "were the right and inheritance of the
fubject*."
As it had been fhewn, that the houſe have, and
ought to have, the fole jurifdiction over their own
members, as fuch, that they may punish them by ex-
pulfion, &c. That they may declare and adjudge,
who are, and who are not, capable of fitting in that
* See Ruh; col: 53.
houſe
[ 437 ]
1
#
houſe-It will appear, 3dly, That they have exerciſed
this right, with refpect to the late election for Mid-
dleſex, in a legal and conftitutional manner, not only
ftrictly agreeable to the law and ufage of parliament,
but conformable to the proceedings of the courts of
juſtice in Weſtminſter-hall, on fimilar occafions.
It has been already ftated, by extracts from the
votes, that, upon Mr. Wilkes's being returned after
his expulfion, the houſe refolved, That he was, and
is, incapable of being elected to ferve in this prefent
parliament.
Therefore, admitting that his incapacity was not a
neceffary conſequence of his expulfion, which the
freeholders were bound to take notice of, yet this ex-
preſs declaration of incapacity was fuch as all the
freeholders of Great Britain were bound to take notice
of. For this, which is but an expofition of their for-
mer reſolutions, is the folelmn adjudication of a court
of judicature, on a fubject wherein they have not only
a competent, but the fole jurifdiction. It is therefore
as binding, nay, being without appeal, it is, in its
effect, more obligatory than a judgment of any of the
courts of Weſtminſter, to which every ſubject is bound
to fubmit.
Now, it is a known and eſtabliſhed maxim, that eve-
ry man is bound to take notice of the law. With what
colour then can it be pretended, that the freeholders of
Middleſex had no notice of Mr. Wilkes's incapacity?
ignorance of the fact may, in fome cafes be pleaded in
excufe, but ignorance of the law never can.
In truth, however, it is notorious, that they were nei-
ther ignorant of the law, nor of the fact. The inca-
pacity of the perfon they thought proper to elect, was,
with fcrupulous caution, fet forth in the introductory
part of the writ which is always read publickly, previ-
ous to the election, yet even this caution, which takes
away
Ee 2
[ 438 ]
away all pretence of want of notice to the freeholders,
has been made the foundation of another objection.
It has been objected, on the authority of Lord Coke,
that the writ can receive no alteration, but by an act of
parliament. No one will difpute this authority. But
the clear anſwer to this objection is, that the writ, in
reality, was not altered. The body, or directory part
of the writ, did not vary a iota from the eſtabliſhed
form; but the introduction, which declares the cauſe
of vacancy, muft, in the nature of things, be varied
according to the different caufes which occafion the
vacancy.
If the vacancy is occafioned by the death of a mem-
ber, it is faid, in the room of fuch an one deceaſed: If
it is occafioned by acceptance of an office, it is ſaid, in
the room of fuch an one, he having accepted fuch an
office; if it is occafioned by the incapacity of a late
member, it fhould fay in the room of fuch an one
incapable of being elected. And in like manner with
reſpect to other caufes of vacancy.
It is evident, therefore that the freeholders of Mid-
dleſex could neither be fuppofed ignorant of the fact,
or of the law. Having elected a repreſentative again
and again, after a legal declaration of his incapacity,
in contempt of the jurifdiction of the houfe, and in
direct oppofition to the law of the land no prefumption
could be made in their favour. Such a flagrant mif-ufer
of their franchiſe, at leaſt amounted to a non-ufer;
their votes muſt be confidered as thrown away; and the
perfon next upon the poll, having the majority of legal
votes, could only, in point of reafon and law, be con-
fidered as duly elected.
Had there been, in this cafe, no line chalked out to
direct the determination of the houfe, yet the neceffity
of the occafion would have dictated fuch a decifion, in
order to maintain their own jurifdiction, on which the
liberties
[ 439 ]
•
liberties of the people depend, against the contumacy
of a ſet of miſtaken perfons, who were inftigated to be-
tray their own intereſts.
But though the reafon and neceffity of the cafe would
have ſufficiently juftified the proceedings of the houſe,
yet they did not act without precedent.
On the 20th of May 1715, in the cafe of the elec-
tion for the borough of Malden, the poll ſtood thus:
Mr. Tuffnell - 168
Sir Will. Jollyffe 128
For Serjeant Comyns - 215
Mr. Bramfton
215
Serjeant Comyns having refuſed to take the oath of
qualification they refolved that his election was void
But what did they farther in this cafe? why, they did
not iffue a new writ! But they confidered the votes gi-
ven for the Serjeant, as thrown away: And reſolved,
that Mr. Tuffnell, who had a leffer number of votes
than the Serjeant, was duly elected.
Again on the 14th of February 1727, and 16th of
April 1728, in the cafe of the election for the town of
Bedford, the poll ſtood thus:
For Mr. Ongley -- 465
Mr. Metcalfe - 462
t
Mr. Orlebar - - 240
Mr. Brace
- 236
It appearing that Mr. Ongley held an office in the
cuſtoms, and the 12 and 13 W. 3. c. 10. againſt offi-
cers in the cuſtoms fitting in parliament being read, and
no furrender appearing to have been made of the faid
office before the election, the houſe refolved, that Mr.
Ongley was incapable of claiming to fit in parliament.
Therefore, though he had the majority of votes, they
confidered thoſe votes as thrown away: And refolved
farther, that Mr. Metcalfe and Mr. Orlebar were duly
elected, though Mr. Orlebar had a leffer number of
votes than Mr. Ongley.
Ee 3
A:
[ 440 ]
As it is always to be wifhed that there ſhould be a
harmony and correſpondence of judgment in the feve-
ral courts of judicature throughout the kingdom, fo,
happily in the prefent inftance, the adjudications of
the courts of Weſtminſter perfectly agree and corref-
pond with the determinations of the houfe of com-
mons.
In the caſe of the king against the mayor and alder-
men of Bath, the 15 Geo. 2. Mr. Taylor brought a
mandamus to be admitted and fworn into the office of
one of the aldermen of the city of Bath. To which
it was returned, that he was not duly chofen; and up-
on that iffue being joined it was tried before Lord Chief
juſtice Lee,
It appeared at the trial, that by the charter of the
corporation, the aldermen are to be elected by the
mayor, recorder and aldermen, or the major part of
them; but it was agreed that the prefence of the re-
corder was not neceffary. It was given in evidence to
the jury, that the whole number of electors were thirty
of whom twenty-eight were lawfully affembled for the
election of an alderman :-That for this office there.
were three candidates, Mr. Bigges, who had 14 votes, the
Mr. Taylor, who had 13, and Mr. Kingſton who had
one vote; but that Mr. Bigges was not duly qualified
to be elected into this office, being neither a freeman
of the corporation, nor an inhabitant of the city of
.Bath.
One Biſh, and another witnefs, gave evidence that
they made the objection to Bigges at the the time of
the election; and that the electors, at the time the can-
didates were propoſed, difcourfed among themſelves
about Bigges, as a perſon not qualified.
On the other fide, there was one witneſs who was
prefent at the time and denied that he heard any fuch
notice given by Bifh.
Upon
[ 44 ]
1
Upon the whole of this cafe, Lord Chief Juftice
Lee, one of the moft cautious Judges that ever prefid-
ed in a court, and whoſe judgments are held in the
higheſt eſteem, gave the following direction to the ju
ry.-
That if they were fatisfied the electors had notice of
this want of qualification in Bigges, that then the 13
votes for Taylor were to be looked upon as fufficient to
determine the election in his favour; and he told the
jury, that if they thought the 14 had voted for a perfon,
whom they knew to be unqualified, at the time they
voted for him, their votes muſt be conſidered as thrown
away,
and they were to be deemed as not voting at all,
or as confenting to the election of Taylor: For that
their diffent could no way be regarded, becauſe their
voting for a perfon not qualified was the fame as if they
had voted for a perfon not exifting, or dead. And there-
fore they could not be confidered as voting againſt Mr.
Taylor, fince no man could vote againſt another, but
by voting for ſomebody elſe. So that, on the whole,
he confidered theſe fourteen votes as flung away and of
no more avail than if they had not voted at all.
Upon this, the jury found a verdict for Taylor; and
a motion was afterwards made for a new trial.
On fhewing cauſe againſt the motion for a new trial,
feveral laws were cited in ſupport of Lord Lee's direc-
tion to the jury. Among others, the caſe of the Queen
and Hugh Boscawen was cited, from a note of Mr.
Werg's, which was an information, in the nature of a
quo warranto, againſt Mr. Bofcawen, to fhew by what
authority he exercifed the office of one of the capital
burgeffes of Truro, in the county of Cornwall. It
appeared on fhewing cauſe, that Mr. Bofcawen had 10
votes, and that one Robert D-- had 10 likewife;
but that no perſon was capable of being elected unleſs
he was at the time of the election, an inhabitant of the
borough
Ee 4
[ 442 ]
borough. Mr. Bofcawen had a houſe near the town;
but was not an inhabitant of the town; and though, the
court might have granted the information againſt Mr.
Boſcawen, on the foundation of an equality of votes,
yet, Lord Parker, on making the rule abfolute faid,
"he confidered thofe 10 votes for the unqualified per-
fon as thrown away, and that the other perfon was du-
ly elected; from which the reſt of the court did not
diffent.
The cafe of the King and Withers, likewife, the 8th
Geo. 2. while that eminent lawyer Lord Hardwicke was
chief Justice, was cited. This was an information in
the nature of a quo warranto, againſt one Withers, for
taking upon him the office of one of the capital Bur-
geffes of W-
W.
It appeared, on fhewing caufe, that by the ancient
ufage of the borough whenever there was a vacancy
of a capital burgefs, the mayor had a right to nomi-
nate two perſons, out of which two perſons, and no
other, the Mayor, and burgeffes chooſe one to fill the
vacancy.
The defendant Withers and another were nominat-
ed by the mayor, purfuant to the custom. The defen-
dant had five votes, and the other perfon nominated by
the mayor had but one. But there were fix other bur-
geffes who infifted to vote, and did vote, for a perfon
not nominated by the mayor. The mayor, however,
refuſed to take the poll for the perfon not nominated
by him.
The court held, that the fix votes for the perſons
not nominated by the mayor were thrown away, and
on that foundation diſcharged the rule.
In the end, upon the found reafoning in Lord Lee's
direction, and the authority of thefe cafes, the court
were unanimous in refufing to grant a new trial,
But
[ 443 ]
But, independent of theſe great authorities, it is
clear upon the principles of common fenfe, that a vote
given for a perfon difqualified cannot be a legal vote.
For to conftitute a legal vote two requifites are effential:
1. That there be a capacity in the elector giving the
vote; and 2. That there fhould be a capacity in the
candidate receiving it. Mr. Wilkes, therefore having
no capacity to receive the votes, they were clearly ille-
gal, and muſt be confidered as thrown away.
Nay, indeed, it has been admitted on the other fide,
that they were thrown away: for, on the queſtion
whether the foregoing elections of Mr. Wilkes were
null and void, they were, without a divifion, deter-
mined to be null and void; which was, in fact, de-
termined that the votes given for him were thrown
away.
Still it is anſwered, on the other fide, that if they
were not good votes for Mr. Wilkes, they were ne-
vertheleſs good votes againſt Mr. Lutterell.
On any other occafion one might be afhamed to mif-
pend time in anſwering fuch futile objections. Did
ever any one hear of votes having a negative quality?
Suppoſe, on Mr. Lutterell's being propoſed, a num-
ber of electors had cried out, No! could a negative
of this kind be conſidered as a vote againſt him? Cer-
tainly not. There is no way as was faid by Lord Lee,
of voting againſt a perfon, but by voting for fome
other: and if a number of electors might put a nega-
tive upon a candidate in fuch a manner, they might
keep a feat in parliament vacant as long as they pleaſ-
ed; whereby they might deprive not only their fellow
electors, but the ftate, of the affiftance of a member.
It is contended, however, that admitting theſe votes
not to be good, yet the election fhould have been de-
clared void, and Mr. Lutterell ſhould not have been re-
ceived
[ 444 ]
ceived. To prove this, they fay it has been held that
the voting for a perſon under age, who had a majority,
did not make the next perfon elected, who had the
minority.
To this it may be anſwered, That every cafe muſt
depend on its own circumftances. Where indeed the
incapacity is of fuch a nature as can only be aſcertain-
ed by evidence, there, though the candidate having
the majority fhould appear to have been ineligible,
yet perhaps his competitor, having the minority,
fhould not be received; but the election fhould be
declared void. Becauſe it may be prefumed, that had
the incapacity been previously known, the majority
might have made choice of fome other perfon.
Thus, in the caſe of a minor, if fuch a candidate
be fo near being of age, that no man can, upon view
of his perfon, determine whether he be of age or not,
and if no certificate, or other proof of his mino-
rity, be produced, in a cafe of fuch uncertainty, it
would perhaps be too much to ſay that the votes for
him were thrown away, and the next candidate ſhould
be admitted.
But if in this cafe any certificate, or other good evi-
dence of his minority, be produced, or if a candidate.
be ſo young, that his minority is notorious and appa-
rent, in theſe cafes the votes fhould be confidered as
thrown away, and the next candidate fhould be re-
ceived.
The true criterion of diftinction is, whether the in-
capacity be or be not notorious of itſelf, and, if not
notorious of itſelf, whether there was, or was not
notice of it? If it be notorious of itſelf, or if it appear
that the electors had notice of it, in either cafe it
muſt be confidered as an obftinacy and contumacy in
the electors to vote for a difqualified perfon; their
votes,
[ 445 ]
votes, therefore, muſt be deemed as thrown away, and
then the next candidate ſhould be received.
The Houſe of Commons therefore, in fuch cafes,
will uſe their difcretion; and if they are fatisfied upon
evidence, that the electors had notice of the incapa-
city of the difqualified perſon at the time they voted
for him, they will reject their votes; and if there be
any other candidate, though with a leffer number of
votes, they will, as has been done in the cafes above
cited, admit him.
But it is faid on the other fide, that in the cafe
of Mr. Walpole, who was returned after he was expelled,
the houſe did not receive Mr. Taylor, the other can-
didate, but declared the election void.
True; but this cafe is by no means applicable to
that of the Middlefex election. For though Mr. Wal-
pole was returned after expulfion, and though, as has
been contended, the incapacity was the neceffary effect
of the expulfion, yet in as much as this was the firſt
and only inſtance in which the electors of any county
or borough had returned a perfon expelled to ferve in
the fame parliament, and the electors might be
prefumed nor to have due notice of the effect of ex-
pulfion, the houfe gave them an opportunity to correct
their error, by giving exprefs notice, and by reſolving,
that he was thereby incapable of being elected, and
at the fame time declaring the election void.
It may be faid, indeed, that by their voting for a
perſon ineligible, a right attached, by operation of law,
in Mr. Taylor. But a right of this kind in an indivi-
dual, ftanding in competition with the rights of fo
many electors, and the law, with regard to the effect
of expulfion, having never been before declared, it was
proper and juft in the houſe to give the electors, who
had voted for an incapable candidate, an opportunity of
making
[ 446 ]
}
+
making a new choice, after the law creating the inca
pacity had been expounded.
But this their refolution leaves no room to doubt
what part they would have taken, if, upon a ſubſequent
re-election of Mr. Walpole, there had been any other
candidate in competition with him. For, by their vote
they could have no other intention than to admit ſuch
other candidate; otherwife their vote would amount to
a refolution that the feat fhould remain vacant during
that parliament.
But how unlike to this is the prefent cafe! In the
prefent cafe, the houſe, with the fame moderation, ex-
plained the effect of the expulfion, by declaring that
Mr. Wilkes was thereby incapable of being elected.
Still however after the fulleft notice, after he had been
again and again declared incapable of being elected,
they obftinately perfifted in chooſing him.
pre-
Therefore, as there was not the leaſt colour for
fuming that they had not notice of his incapacity and
as Mr. Lutterell ftood next upon the poll, the houſe
could not, without injuſtice to him, without betraying
their own jurifdiction, without violating the precedents
of Parliament, and the correfponding determinations
of the Courts at Weſtminſter; in fhort, without op-
pofing the principles both of reafon and law, they
could not act otherwife than they did.
In truth, there was no alternative but to admit Mr.
Lutterell, or to refuſe iffuing a new writ. To have re-
jected Mr. Lutterell, after the law in fuch cafes had
been expounded, would have been to have denied him
his right: To have refuſed iffuing a new writ would
have been a violation of the rights of the freeholders.
By arbitrarily keeping feats vacant, the houſe may be
purged, as in Oliver's time, to any degree a minifter
thinks proper: And this mode of proceeding, which
fome pretended patriots affect to prefer, would have
been,
[ 447 ]
been as has been faid, not only unjuſt with regard to
Mr. Lutterell, but dangerous and unconftitutional with
reſpect to the people.
Nevertheleſs it is pretended on the other fide, that
though the rejecting the perſon returned, and receiv-
ing the other candidate, might have been right, had
the perfon rejected been difqualified by act of parlia-
ment, yet it is otherwife, as he is difqualified only by
the judgment of the houſe. By this means they con-
tend the franchifes of the electors are taken away,
which nothing but an act of parliament can do; for
that the houſe, being but one of three branches of the
legiſlature cannot make laws to bind the people; and
that though their orders and refolutions are binding
upon themſelves, yet they do not operate without
doors.
In answer to this, it is to be obferved that though
the houſe of commons, in their legiſlative capacity as
one only of the three branches of the legislature can-
not, as has been faid, make laws to bind the people;
yet it is to be remembered, as was ſtated in the begin-
ning, that they have a judicial as well as a legiſlative
capacity, and it is in their judicial capacity that they
take cognizance of elections. Confidered therefore
as a court of judicature, their adjudications are as
obligatory as the judgments of any other court what-
ever; nay, more fo, as has been intimated, becauſe they
are without appeal.
To fhew however, that the judgments of parliament
are not binding without doors, they are extravagant
enough, on the other fide, to cite the caſe of the King
and Queen again ft Knollys, commonly called Lord
Banbury's cafe, which was fhortly thus:
* Salk. 47, 509, 512. 3 Salk. 242. Carth 297. Comb. 273.
Skin. 336, 517. Caf. B. R. 55.
!
Holt 530.
Charles
1
[ 448 ]
Charles Knollys, Earl of Banbury, was indicted for
the murder of Capt. Lawfon, by the name of Charles
Knolly's, Efq; and this indictment was removed into
the King's Bench, where the defendant pleaded in
abatement, that he was a peer. To which it was replied
that the defendant had petitioned the lords in parliament
to be tried by his Peers; upon which the lords, by an
order of their houſe, difallowed his peerage, and dif-
miffed the petition. To this replication there was a de-
murrer, and a joinder in demurrer. Notwithstanding
this order of the lords, however, judgment was given
for the defendant, and the indictment abated.
But the grounds on which the court refted their opi-
nion, as expreffed by Lord Holt, was that the order of
the lords was not any determination, for that the cauſe
was not properly before them: It was not properly be-
fore them becauſe the petition was preferred to the
lords, in the firſt inftance, whereas it ſhould have been
referred to the king and from his majefty have been
referred to the confideration of the lords: fo that the
petition to the lords, was coram non judice.
This cafe therefore, is not applicable to the cafe in
queſtion in any point whatever. For, in Lord Banbu-
ry's cafe, the reaſon, it is feen, which influenced the
court, was, that the proceeding coming irregularly be-
fore the houſe of lords, their order thereon was not a
judgment of the houſe. From whence it is to be in-
ferred, that if, in this cafe, the lords had acted judi-
cially, in a manner regularly laid before them, the court
would, and they certainly muft, have taken notice of
their judgment. But, in the prefent cafe, the houſe
of commons acted as a court of judicature, in a cauſe
regularly before them; their declaration therefore
was the adjudication of the court; and the adjudica-
tion of a court having competent juriſdiction, more
eſpecially
L し
​449 J
eſpecially of a court without an appeal, is the law
of the land.
It has already been obferved that there are in this
kingdom, as in most others, divers laws for the admi-
niſtration of government.
Will any one fay, that the common law is not as
binding as the ſtatute law? that the cuſtoms of par-
ticular places are not of equal force with the ftatute
law? And will any one fay, that the law of parlia-
ment is of leſs force and efficacy then the ſtatute law?
Are not all equally the law of the land? And does
not the juriſdiction of the houſe of commons, in mat-
ters of elections, ſtand upon as firm a footing as the
juriſdiction of any other court in the kingdom? nay,
has it not been recognized again and again by the
ftatute law?
If it be afked when, and how they acquired this
jurifdiction; the anſwer is, that they gained it at the
fame time, and by the fame means that they gained
their right by impeaching the greateſt perfonages in
the land; at the fame time, and by the fame means,
that they acquired the right they exerciſe with regard
to money bills, and other undoubted privileges. In
short, their jurifdiction in this refpect, which is con-
firmed by immemorial ufage, is as ancient as the com-
mon law, and must be fo deemed, for no written law
can be produced which fhews the commencement of
the inftitution: It is coeval with the conftitution;
and without fuch a jurifdiction the houſe of commons,
as has been fhewn, could not exift as an independent
body: And if this jurifdiction is queftioned, all their
other privileges may, on as good a foundation, be dif-
puted; fince thefe, together with many privileges of
the other houſe, can only be fupported by immemo-
rial ufage.
As
}
[ 450 ]
As to the pretence that the houſe, by the exerciſe
of this jurifdiction, have taken away the franchiſes of
the electors, which nothing but an act of parliament
can do, this infinuation is altogether fallacious.
Is the prohibiting of them from exercifing their
franchiſe againſt law the fame thing as depriving them
of it? Is it not neceffarily understood in the exerciſe
of every franchiſe, that it fhall not be uſed contrary to
the rules of law?
In the preſent inftance, they exercifed it fo clearly
contrary to the rules and reaſon of the law, that, in-
dependent of the declaration of incapacity by the
houfe, the fheriff might, on the authority of the cafe
of Leimfter, above cited, have even refuſed to have
taken any poll for Mr. Wilkes, and even that would
not have avoided the election; but any other candi-
date, having a majority of legal votes, would have
been duly elected.
But how does the determination of the houſe de-
prive the electors of their franchiſe? No one diſputes
their rights: All that is contented is, that they have
exerciſed their right ineffectually. Their right, as
has been faid, is to vote for whom they pleafe, being
duly qualified, to repreſent them. But they have
wilfully and obftinately, with their eyes and ears open,
voted for one difqualified, and of whofe incapacity
they were not only bound by law to take notice, but
of which notice was actually and repeatedly given
them.
Their votes therefore, on this occafion, muft be
confidered as not given at all. But ftill, tho' in ftrictneſs
of law, perhaps, a wilful mifurer of a franchiſe is a
cauſe of forfeiture, yet no one contends that their
franchiſe is hereby forfeited. No one means to take
away
451].
away
their franchiſe: They have ftill the right of voting,
on any future occafion, for whom they pleaſe, being
'duly qualified. But furely no one will contend that
the electors of Middlefex are above the law; and that
their will is to over-rule the fenfe of the people at
large, declared by their reprefentatives.
But it has been faid, and an abfolete act of Hen.
the 4th has been cited, which declares, that "All
"elections ſhall be free without being interupted by
"the Pope, or by commandment of the king;"
much leſs, ſay the objectors, ought elections to be in-
terrupted by commandment of the houfe of commons.
One would fufpect, by the levity of fuch argu-
ments, that they who uſe them really meant to betray
the cauſe which they affect to fupport. That elec-
tions ſhould be free no one will difpute; but
the freedom here fpoken of is a freedom limited by
law. That the Pope fhould interfere with elections,
we have no reaſon to fear: as little reafon have we to
apprehend, that our fovereign will interrupt the free
courſe of elections. Nevertheleſs it was provident in
our forefathers to declare any commandment of the
king to be illegal; for fhould a commandment of
that kind be admitted, it would directly tend to de-
ſtroy the independence of the houſe of commons; ſo
would the influence of any other power whatever.
But the objectors are to learn, that the refolution, or
the commandment, if they chooſe to call it fo, of the
houſe of commons, is not againft law, but declara-
tory of the law of the land. They are the proper
and fole judicature, entrusted with the expofition of
the law in fuch cafes.
**
When the juriſdiction of the houfe, however, can
no longer be diſputed, attempts are made to alarm
us with the dreadful confequences, which, as fome
VOL III.
F f
affect
I 452 ]
affect to apprehend, may enfue from it. At this rate,
fay they, 'the houfe of commons may declare that no
freeholder under 10l. per annum fhall vote at an
election for a knight of the fhire.
If they were ſerious in this apprehenfion, it might 、
eafily 'be removed, by affuring them that the ftat.
of Hen. the VIth having fixed the qualification of
the freeholders at 40s. per annum, it is not in the
power of the houfe of commons, nor of any judica-
ture whatſoever, to alter it: The legislature only can
enlarge or diminish the qualification.
There muſt in all cafes, ultimately be a power of
judicature fome where, without appeal; and where-
ever the conftitution has thought proper to veft it,
it is not ſuppoſed that it will, or ever can, be exer-
cifed against the exprefs letter of the law.
Upon the whole, whether the jurifdiction of the
houſe, with reſpect to elections, be examined on the
foundation of parliamentary precedents and authori-
ties of law, or on the general grounds of reafon and
conftitutional policy, it is evident that they have and
ought to have, the fole and exclufive right of judicature
in all fuch cafes: that it cannot, confiftent with the pre.
fervation of public liberty, be lodged any where elſe;
and that, in the inftance in queftion, they have exer-
cifed this right not only according to the eftabliſhed
law and uſage of parliament, but in conformity with
the adjudications of the courts at Weftminſter, on the
like occafions.
It is fearce to be credited, that in theſe days, which
we boaſt of as enlightened, the public fhould be fo
far mifled as to question the exerciſe of a jurifdiction,
on which their own welfare and fecurity depends.
B
[ 453 ]
F
But what ſhall be faid of thofe, who have employ
ed every artifice thus to 'miſlead and irritate the minds
of the public, and who induftriouſly augment the diffi-
culties of adminiftration, by obliging the miniſtry to
pay that attention to their intereſted oppofition, which
might be better employed in improvements for the
public good!
"6
If Lord Coke had reaſon to lament that " much
time was ſpent in parliament concerning the right
"of elections &c. which might be more profitably
employed for the public good *," how would he
have lamented, had he lived in theſe days, to have
feen one election only confume fo confiderable a por-
tion of a long feffion of parliament; and to have
known, that this deplorable wafte of time was occa-
fioned by the oppoſition of a party, who laboured to
force a member upon parliament againſt law, whom
they themſelves had cauſed to be expelled!
What fruits are to be expected from fuch a flagrant
inconfiftence of conduct?
However ftrongly fuch a party may be united at
prefent, by a common intereft, the purfuit of profit
and power, yet when they come to a diftribution of
that power and that profit, how foon would they
divide! Their different views, difpofitions and paſ-
fions, would quickly fet them at variance; new fac-
tions would be formed; new difcords would ariſe;
and the public intereft be facrificed to private views
and refentments.
Theſe conſequences are obvious to the difcerning
and diſpaſſionate part of the people, who unhappily
for the affairs of mankind, feldom compofe a ma-
jority.
4
Inft. 49.
It
£ 454]
It is to be hoped, however, that, before it too
late, the public judgment will be corrected. They
will then find, that the perfons. whom they have been
perfuaded to confider as the invaders of their rights,
are in truth the affertors and protectors of thoſe rights;
and they will then know in what eftimation to hold
thofe, who, by every unwarrantable artifice, have la-
boured to inflame their minds with reprefentations
of imaginary grievances, at the very time that, by a
felfiſh oppofition, they were entailing real mifery upon
them and their poſterity.
4
END OF THE THIRD VOLUme.
MAR 1 i 1919
UNIVERSITY OF MICHIGAN
3 9015 01678 3063
B 685,895
DUPL