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release of members imprisoned for words spoken in the house : nay, the form of requesting freedom of speech, as a favour from the crown, is still continued. But will any man maintain, that this imprisonment of a member was an exertion of legal power? This a much stronger cafe ; for here the people, by their representatives, acquiesced and submitted to the claim, when all its consequences were seen.
• You will be singular, in not understanding what I'mean by legislative power. It is the governing will of the community, which makes or alters laws. The judicial power explains and applies these laws to particular cases; or in a new case, not expressly provided for, decides, upon analogous reasoning. My grand objection to the power of expulsion, is, that, in the exercise of this pretended power, the house of commons make a law for each particular object, at the will of a majority; which, to my apprehension, would be rather an arbitrary act, even in the whole legislature. Whether this be just or not, your distinction between legislative and judicial power is ridiculous. Many subordinate legislatures exist in the several towns of the kingdom. Every power which is not fupreme, cannot be therefore judicial, or negatively not legislative. What if I should affirm, that no existing power in any state is, properly speaking, Supreme ? Even the authority of parliament is subordinate to the fundamental constitution of the established government. They can make laws, but not legislators. Par. liament cannnot grant to the house of commons a power of expulsion in the extent contended for, because it is inconsistent with the judicial power, which they already possess. For if they can expel whom they please, they may declare the consequence to be what they please; and are completely absolute. Such an act would be a renunciation of the trust reposed in parliament, but could not operate to submit the rights of the people to the will of any body of men. Men cannot be transferred from hand to hand, like a flock of theep. Neither does the acquiescence of the legislature always make law, otherwise any one branch thereof, poleffing an absolute negative, might enjoy what power it's members were pleased to assume. None can judge between this branch of the legislature and the people ; because none are superior in the state. Opposition must at first be made by remonftrance; and in this the people have fometimes supported the lords against their own representatives, in defence of the constitution. If these means fail, the contest can only be decided by an appeal to the God of Battles. By what authority was James II. expelled from his throne ? No written law existed upon this subject. No superior entitled to judge between him and his people. He assumed the legilla.' tive power, and thereby broke the original compact ; or, in other words, the fundamental laws, from which alone all right to power must be derived. He was, therefore, juftly deposed. We cannot doubt but our king, whose ancestors obtained the crown in consequence of such a revolution, will join his people in resisting every attempt of an house of commons to assume legislative power to themselves. The power of diffolving parliaments is the means entrusted in his hands for this purpose; and, to doubt his exertion of such right, if the obstinacy of any body of men should render this necessary, would be a degree of guilt little short of treason to the house of Hanover.
• My Effay was hastily written, and published with little correction; I, nevertheless, find that (mifrepresentation removed) there is but one argument in your pamphlet, on the head of expulsion, which has not there received an answer, The power of expulsion in corporations did not escape me; but I avoided mentioning what was obviously inapplicable. I might say that corporation law was established, when the crown exercised a legislative power in almost every part of go-. vernment; when opinions of judges were easily procured to fanctify an arbitrary act by legal forms; when all foreign commerce was abandoned to the wil of the crown; when the idea, that a legislative power over others than their own members might be derived to corporations by a grant from the crown was adopted by parliament, who enacted in the 19th year of Henry VII. “ That no trading company shall make bye-laws, which may affe&t the common profit of the people, unless they be approved by the chancellor, treasurer, and chief justices, or the justices of assize in their circuits.” All these arguments I shall not insist upon, for this of corporations is the very inItance I should have chosen to illustrate all my principles. The member is always expelled by the body which possesses the legislative power in that community, from the consent of all the members expressed by voluntarily becoming such, or, in new corporations, by an acceptance of the charter. This power generally resides in the body at large. In either case it is exa&ly analogous to a bill of banishment, which I believe you will not pretend the house of commons could enad. by their fole authority.
· This exercise of legislation by bodies corporate, after the defignation of a particular object, has been found from experience to be so liable to abuse, that the court of King's Bencha has, with the general approbation of the kingdom, assumed a power of comnianding by writ the re-adınission of meinbers expelled ; and has, by repeated adjudications, reduced this claim to a mere power of declaring a forfeiture of the fran.
chile at common law subject to the revifal of a superior tribunal.
There is yet an affertion, not an argument, which may des serve attention. You say, whether a power to send an offend, ing member back to his constituents, for them either to con. firm or reprobate their former choice, may not be properly vested in the house of commons, cannot be seriously considered. It involves a degree of ridicule, not to be expressed. Good Sir! be not outrageously wise. The principle has already been adopted by parliament. Decency, therefore, requires we should be moderate in our comments. This would be nothing more, than a power in the house of commons to do in particular cases, what the legislature has done respecting a general class of men. By the place-bill, parliament has declared, that the acceptance of certain offices may make such a change ia the member, that the people may no longer choose to truf him: that therefore they ought to proceed to a new election. This act supposes the right of choice in the people. If the power of expulfion is considered as a right of election in the re, presentative body, wbo ball or faid not fit among ibem; if the people must be contented with a conge a' clire, then indeed sucki a limitation would be truly ridiculous. But perhaps you will not affirm this to be the spirit of our constitution. For my own part, I thall be perfe&tly satisfied to see the pretended power wholly abolished, and the people governed by generale equal laws,'
THE AUTHOR. 24. Letter to Dr. Blackstone, by the Author of the Question pated
8vo. Pr. 15. 6d. Woodfall. Prefixed to this publication is a republication of Dr. Black Itone's letter to the author of the Question stated, which we have already reviewed. The author of the reply before us has been considered as one of the main champions for the re, eligibility of Mr. Wilkes after his expulsion, and therefore we look upon his performance as the ne plus ulira on that side of the question. We cannot, however, help observing, that the author's reasoning is confined to Dr. Blackstone's works; and that he has paid no regard to many strong arguments advanced against his fyftem by other writers, whose pieces we have rea viewed.
This writer's first attempt is to separate the two ideas of jurisdiction and legislation ; because without such separation no rational conception of the present question can be formed.
• Şee Vol. xxviii. p. 70.
VOL. XXIX. Jan. 1770.
«That it is essential, says he, to every court of law which is competent to try a cause, to adjudge and declare what the law is, relating to the cause under trial; and that the judgment of such court is binding until it is reversed; that, the house of commons being the court competent to try every case relative to the election and qualification of members; what the house ADJUDGES and DECLARES to be law, in fact, becomes law; and as there lies no appeal to any other court, to reverse their judgment, that judgment must absolutely stand as law. Then let me ask, if the effect of that judgment is altering the old, or making a new law, what is it but legislation ?"
We are afraid that this writer is here a little defective in precision, by supposing the house of coinmons to be a court of law; but we have not room to investigate this question, nor do we in the least intend to be parties in this dispute. In cases of election, says he, members of parliament are as mere judges as those of Westminster-hall.'-Is there no fallacy here? --The judges in Westminster-hall try cases of properly ; that of an election is of a very different nature. The legislation of the house of commons is no more than a precedent; and though it may be afterwards quoted, it binds no longer than the duration of one parliament, and in some cases of one selfion. But how does the case stand even in Westminster-hall ?We apprehend that if a man was to bring an action there in direct violation of a rule of court, he muft be nonsuited. The house of commons made a rule, if we may call it so, that Mr. Wilkes was not eligible during the session of parliament, and therefore the petitions were rejected for disregarding that rule - Are not the cases similar by this writer's own state of the question ?
We are of opinion, that there is no difference between a legal and a parliamentary right, and that the authors on both sides have been a little too profuse in quoting modern authorities, If acts of parliament should be found contradictory one to ano. ther, why not opinion and precedents, which are no more than the effects of opinions too often influenced by party considerations, be the fame>
This author afferts the freeholder's right to be a common law, and he thinks it consequential, that the maxims to try that right must also be a common law. This sentiment is not extremely perspicuous. The maxiins of a law is the law itSelf, otherwise the words mean nothing. In treating of the three classes of disabilities, minors, traitors, and felons, Dr. Blackstone says, that though a minor was incapacitated at all times from fitting in either house of parliament by the law and custom of parliament, yet that incapacity is exprefly declared
by the statute of the 7th and 8th of William II]. with regard to the house of commons.
i The difference, says our author, between these two great authors is, that Sir Edw. Coke does not mention " the law and custom of parliament,” which words are added by doctor Blackstone. But as there was no statute in Sir Edw. Coke's time; nor has ever been any vote concerning minors, we have Sir Edw. Coke's authority at least, that the disability of minors, was originally at common law. Take it in doctor Blackstone's words, that they were incapacitated by the law and custom of parliament ; still, as the incapacity existed before the statute, and as there is no vote concerning minors-on what ground is it pollible for the doctor to fix this law and custom of parliament, but merely upon the law of the land?
This last is a very odd question, and admits of a very easy reply. It may be fixed upon the law of common fense, which is, or ought to be, the same with the law of the land. There might be at that time reasons for such a parliamentary decree.
The civil law supposed, as well as our law, incapacities of minors, but the judges dispensed with those incapacities when a minor's shrewdness made amends for defect of years. The law of England required greater precision. No pretence of a precox ingenium, a maturity of understanding, or an appearance of manhood, which was often the case, was to smuggle a minor into either house of parliament, which, by Sir Edward Coke's testimony, was frequently the case.
This writer, in examining the Journals, is bold to affirm, • that they do not warrant the assertion of any incapacity, being founded inerely on a vote of the house of coinmons; on the contrary, every incapacity recorded in those Journals, appears to have previously existed in common-law, and the votes are merely declaratory of that common law,' To prove this, he mentions the case of Mr. Steward, in 1623, a Scotchman, who was not naturalized an Englishman, but returned to parliament ; upon which the election was resolved to be void in law. The resolution was very proper, and yet directly in the teeth of our author's affertion; it appears in that very care, that the house of commons thought themselves at liberty to dispense with the common law, in the cases of Levinus Muncke, and Horatio Palevicyne, who, though not naturalized, had been smuggled into the house, and suffered to keep their seats. With what consistency then can this gentleman fay, .in clear and strong terms then did the house, on this occasion, disavow the power of adjudging a denison capable, whom the law has made incapable.'