The position is true, but the argument is useless. The commons must be controlled, or be exempt from control. If they are exempt, they may do injury which cannot be redressed, if they are controlled, they are no longer legislative.
If the possibility of abuse be an argument against authority, no authority ever can be established: if the actual abuse destroys its legality, there is no legal government now in the world.
This power, which the commons have so long exercised, they ventured to use once more against Mr. Wilkes, and, on the 3rd of February, 1769, expelled him the house, “for having printed and published a seditious libel, and three obscene and impious libels.”
If these imputations were just, the expulsion was, surely, seasonable; and that they were just, the house had reason to determine, as he had confessed himself, at the bar, the author of the libel which they term seditious, and was convicted, in the King’s Bench, of both the publications.
But the freeholders of Middlesex were of another opinion. They either thought him innocent, or were not offended by his guilt. When a writ was issued for the election of a knight for Middlesex, in the room of John Wilkes, esq. expelled the house, his friends, on the sixteenth of February, chose him again.
On the 17th, it was resolved, “that John Wilkes, esq. having been, in this session of parliament, expelled the house, was, and is, incapable of being elected a member to serve in this present parliament.”
As there was no other candidate, it was resolved, at the same time, that the election of the sixteenth was a void election.
The freeholders still continued to think, that no other man was fit to represent them, and, on the sixteenth of March, elected him once more. Their resolution was now so well known, that no opponent ventured to appear.
The commons began to find, that power, without materials for operation, can produce no effect. They might make the election void for ever, but if no other candidate could be found, their determination could only be negative. They, however, made void the last election, and ordered a new writ.
On the 13th of April was a new election, at which Mr. Lutterel, and others, offered themselves candidates. Every method of intimidation was used, and some acts of violence were done, to hinder Mr. Lutterel from appearing. He was not deterred, and the poll was taken, which exhibited, for
Mr. Wilkes 1143
Mr. Lutterel 296
The sheriff returned Mr. Wilkes; but the house, on April the fifteenth, determined that Mr. Lutterel was lawfully elected.
From this day began the clamour, which has continued till now. Those who had undertaken to oppose the ministry, having no grievance of greater magnitude, endeavoured to swell this decision into bulk, and distort it into deformity, and then held it out to terrify the nation.
Every artifice of sedition has been since practised to awaken discontent and inflame indignation. The papers of every day have been filled with exhortations and menaces of faction. The madness has spread through all ranks, and through both sexes; women and children have clamoured for Mr. Wilkes; honest simplicity has been cheated into fury, and only the wise have escaped infection.
The greater part may justly be suspected of not believing their own position, and with them it is not necessary to dispute. They cannot be convinced who are convinced already, and it is well known that they will not be ashamed. The decision, however, by which the smaller number of votes was preferred to the greater, has perplexed the minds of some, whose opinions it were indecent to despise, and who, by their integrity, well deserve to have their doubts appeased.
Every diffuse and complicated question may be examined by different methods, upon different principles; and that truth, which is easily found by one investigator, may be missed by another, equally honest and equally diligent.
Those who inquire, whether a smaller number of legal votes can elect a representative in opposition to a greater, must receive, from every tongue, the same answer.
The question, therefore, must be, whether a smaller number of legal votes shall not prevail against a greater number of votes not legal.
It must be considered, that those votes only are legal which are legally given, and that those only are legally given, which are given for a legal candidate.
It remains, then, to be discussed, whether a man expelled can be so disqualified by a vote of the house, as that he shall be no longer eligible by lawful electors.
Here we must again recur, not to positive institutions, but to the unwritten law of social nature, to the great and pregnant principle of political necessity. All government supposes subjects; all authority implies obedience: to suppose in one the right to command what another has the right to refuse, is absurd and contradictory; a state, so constituted, must rest for ever in motionless equipoise, with equal attractions of contrary tendency, with equal weights of power balancing each other.
Laws which cannot be enforced can neither prevent nor rectify disorders. A sentence which cannot be executed can have no power to warn or to reform. If the commons have only the power of dismissing, for a few days, the man whom his constituents can immediately send back; if they can expel, but cannot exclude, they have nothing more than nominal authority, to which, perhaps, obedience never may be paid.
The representatives of our ancestors had an opinion very different: they fined and imprisoned their members; on great provocation, they disabled them for ever; and this power of pronouncing perpetual disability is maintained by Selden himself.
These claims seem to have been made and allowed, when the constitution of our government had not yet been sufficiently studied. Such powers are not legal, because they are not necessary; and of that power which only necessity justifies, no more is to be admitted than necessity obtrudes.
The commons cannot make laws; they can only pass resolutions, which, like all resolutions, are of force only to those that make them, and to those, only while they are willing to observe them.
The vote of the house of commons has, therefore, only so far the force of a law, as that force is necessary to preserve the vote from losing its efficacy; it must begin by operating upon themselves, and extend its influence to others, only by consequences arising from the first intention. He that starts game on his own manor, may pursue it into another.
They can properly make laws only for themselves: a member, while he keeps his seat, is subject to these laws; but when he is expelled, the jurisdiction ceases, for he is now no longer within their dominion.
The disability, which a vote can superinduce to expulsion, is no more than was included in expulsion itself; it is only a declaration of the commons, that they will permit no longer him, whom they thus censure, to sit with them in parliament; a declaration made by that right, which they necessarily possess, of regulating their own house, and of inflicting punishment on their own delinquents.
They have, therefore, no other way to enforce the sentence of incapacity, than that of adhering to it. They cannot otherwise punish the candidate so disqualified for offering himself, nor the electors for accepting him. But if he has any competitor, that competitor must prevail, and if he has none, his election will be void; for the right of the house to reject annihilates, with regard to the man so rejected, the right of electing.
It has been urged, that the power of the house terminates with their session; since a prisoner, committed by the speaker’s warrant, cannot be detained during the recess. That power, indeed, ceases with the session, which must operate by the agency of others; because, when they do not sit, they can employ no agent, having no longer any legal existence; but that which is exercised on themselves revives at their meeting, when the subject of that power still subsists: they can, in the next session, refuse to re-admit him, whom, in the former session, they expelled. That expulsion inferred exclusion, in the present case, must be, I think, easily admitted. The expulsion, and the writ issued for a new election were in the same session, and, since the house is, by the rule of parliament, bound for the session by a vote once passed, the e
xpelled member cannot be admitted. He that cannot be admitted, cannot be elected; and the votes given to a man ineligible being given in vain, the highest number for an eligible candidate becomes a majority.
To these conclusions, as to most moral, and to all political positions, many objections may be made. The perpetual subject of political disquisition is not absolute, but comparative good. Of two systems of government, or two laws relating to the same subject, neither will ever be such as theoretical nicety would desire, and, therefore, neither can easily force its way against prejudice and obstinacy; each will have its excellencies and defects; and every man, with a little help from pride, may think his own the best.
It seems to be the opinion of many, that expulsion is only a dismission of the representative to his constituents, with such a testimony against him, as his sentence may comprise; and that, if his constituents, notwithstanding the censure of the house, thinking his case hard, his fault trifling, or his excellencies such as overbalance it, should again choose him, as still worthy of their trust, the house cannot refuse him, for his punishment has purged his fault, and the right of electors must not be violated.
This is plausible, but not cogent. It is a scheme of representation, which would make a specious appearance in a political romance, but cannot be brought into practice among us, who see every day the towering head of speculation bow down unwillingly to groveling experience.
Governments formed by chance, and gradually improved by such expedients, as the successive discovery of their defects happened to suggest, are never to be tried by a regular theory. They are fabricks of dissimilar materials, raised by different architects, upon different plans. We must be content with them, as they are; should we attempt to mend their disproportions, we might easily demolish, and difficultly rebuild them.
Laws are now made, and customs are established; these are our rules, and by them we must be guided.
It is uncontrovertibly certain, that the commons never intended to leave electors the liberty of returning them an expelled member; for they always require one to be chosen in the room of him that is expelled, and I see not with what propriety a man can be rechosen in his own room.
Expulsion, if this were its whole effect, might very often be desirable. Sedition, or obscenity, might be no greater crimes in the opinion of other electors, than in that of the freeholders of Middlesex; and many a wretch, whom his colleagues should expel, might come back persecuted into fame, and provoke, with harder front, a second expulsion.
Many of the representatives of the people can hardly be said to have been chosen at all. Some, by inheriting a borough, inherit a seat; and some sit by the favour of others, whom, perhaps, they may gratify by the act which provoked the expulsion. Some are safe by their popularity, and some by their alliances. None would dread expulsion, if this doctrine were received, but those who bought their elections, and who would be obliged to buy them again at a higher price.
But as uncertainties are to be determined by things certain, and customs to be explained, where it is possible, by written law, the patriots have triumphed with a quotation from an act of the fourth and fifth of Anne, which permits those to be rechosen, whose seats are vacated by the acceptance of a place of profit. This they wisely consider as an expulsion, and from the permission, in this case, of a reelection, infer, that every other expulsion leaves the delinquent entitled to the same indulgence. This is the paragraph:
“If any person, being chosen a member of the house of commons, shall accept of any office from the crown, during such time as he shall continue a member, his election shall be, and is hereby declared to be void; and a new writ shall issue for a new election, as if such person, so accepting, was naturally dead. Nevertheless such person shall be capable of being again elected, as if his place had not become void as aforesaid.”
How this favours the doctrine of readmission, by a second choice, I am not able to discover. The statute of the thirtieth of Charles the second had enacted, that “he who should sit in the house of commons, without taking the oaths, and subscribing the test, should be disabled to sit in the house during that parliament, and a writ should issue for the election of a new member, in place of the member so disabled, as if such member had naturally died.”
This last clause is, apparently, copied in the act of Anne, but with the common fate of imitators. In the act of Charles, the political death continued during the parliament; in that of Anne it was hardly worth the while to kill the man whom the next breath was to revive. It is, however, apparent, that in the opinion of the parliament, the dead-doing lines would have kept him motionless, if he had not been recovered by a kind exception. A seat vacated could not be regained, without express permission of the same statute.
The right of being chosen again to a seat thus vacated, is not enjoyed by any general right, but required a special clause and solicitous provision.
But what resemblance can imagination conceive between one man vacating his seat by a mark of favour from the crown, and another driven from it for sedition and obscenity? The acceptance of a place contaminates no character; the crown that gives it, intends to give with it always dignity, sometimes authority. The commons, it is well known, think not worse of themselves, or others, for their offices of profit; yet profit implies temptation, and may expose a representative to the suspicion of his constituents; though, if they still think him worthy of their confidence, they may again elect him.
Such is the consequence. When a man is dismissed by law to his constituents, with new trust and new dignity, they may, if they think him incorruptible, restore him to his seat; what can follow, therefore, but that, when the house drives out a varlet, with publick infamy, he goes away with the like permission to return?
If infatuation be, as the proverb tells us, the forerunner of destruction, how near must be the ruin of a nation that can be incited against its governours by sophistry like this! I may be excused, if I catch the panick, and join my groans, at this alarming crisis, with the general lamentation of weeping patriots.
Another objection is, that the commons, by pronouncing the sentence of disqualification, make a law, and take upon themselves the power of the whole legislature. Many quotations are then produced to prove, that the house of commons can make no laws.
Three acts have been cited, disabling members, for different terms, on different occasions; and it is profoundly remarked, that if the commons could, by their own privilege, have made a disqualification, their jealousy of their privileges would never have admitted the concurrent sanction of the other powers.
I must for ever remind these puny controvertists, that those acts are laws of permanent obligation; that two of them are now in force, and that the other expired only when it had fulfilled its end. Such laws the commons cannot make; they could, perhaps, have determined for themselves, that they would expel all who should not take the test, but they could leave no authority behind them, that should oblige the next parliament to expel them. They could refuse the South sea directors, but they could not entail the refusal. They can disqualify by vote, but not by law; they cannot know that the sentence of disqualification pronounced to-day may not become void to-morrow, by the dissolution of their own house. Yet, while the same parliament sits, the disqualification continues, unless the vote be rescinded; and, while it so continues, makes the votes, which freeholders may give to the interdicted candidate, useless and dead, since there cannot exist, with respect to the same subject, at the same time, an absolute power to choose and an absolute power to reject.
In 1614, the attorney general was voted incapable of a seat in the house of commons; and the nation is triumphantly told, that, though the vote never was revoked, the attorney general is now a member. He, certainly, may now be a member, without revocation of the vote. A law is of perpetual obligation; but a vote is nothing, when the voters are gone. A law is a compact reciprocally made by the legislative powers, and, therefore, not to be abrogated but by all the parties. A vote is simply a resolution, w
hich binds only him that is willing to be bound.
I have thus punctiliously and minutely pursued this disquisition, because I suspect, that these reasoners, whose business is to deceive others, have sometimes deceived themselves, and I am willing to free them from their embarrassment, though I do not expect much gratitude for my kindness.
Other objections are yet remaining, for of political objections there cannot easily be an end. It has been observed, that vice is no proper cause of expulsion; for if the worst man in the house were always to be expelled, in time none would be left; but no man is expelled for being worst, he is expelled for being enormously bad; his conduct is compared, not with that of others, but with the rule of action.
The punishment of expulsion, being in its own nature uncertain, may be too great or too little for the fault.
This must be the case of many punishments. Forfeiture of chattels is nothing to him that has no possessions. Exile itself may be accidentally a good; and, indeed, any punishment, less than death, is very different to different men.
But, if this precedent be admitted and established, no man can, hereafter, be sure that he shall be represented by him whom he would choose. One half of the house may meet early in the morning, and snatch an opportunity to expel the other, and the greater part of the nation may, by this stratagem, be without its lawful representatives.
He that sees all this, sees very far. But I can tell him of greater evils yet behind. There is one possibility of wickedness, which, at this alarming crisis, has not yet been mentioned. Every one knows the malice, the subtlety, the industry, the vigilance, and the greediness of the Scots. The Scotch members are about the number sufficient to make a house. I propose it to the consideration of the supporters of the bill of rights, whether there is not reason to suspect that these hungry intruders from the north are now contriving to expel all the English. We may then curse the hour in which it was determined, that expulsion and exclusion are the same; for who can guess what may be done, when the Scots have the whole house to themselves?
Complete Works of Samuel Johnson Page 168
