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defence of the popular interest, to become a ground for the majority of that House to form a disqualification out of the line of the law, and at their pleasure, attended not only with the loss of the franchise, but with every kind of personal disgrace.—-If this shall happen, the people of this kingdom may be assured that they cannot be firmly or faithfully served by any man. It is put of the nature of men and things that they should; and their presumption will be equal to their folly, if they expect it. The power of the people, within the laws, must shew itself sufficient to protect every representative in the animated performance of his duty, or that duty cannot be performed. The House of Commons can never be a controul on other parts of Government unless they are controuled themselves by their constituents; and unless these constituents possess some right in the choice of that House, which it is not in the power of that House to take away. If they suffer this power of arbitrary incapacitation to stand, they have utterly perverted every other power of the House of Commons. The late proceeding, I will not fay, is contrary to law; it must be so; for the power which is claimed'cannot, by any possibility, be a legal power in any limited member of Government.
The power which they claim, of declaring incapacities, would not be above the just claims of a final judicature, if they had not laid it down as a leading principle, that they had no rule in the exercise of this claim, but their own discretion^
Not Not one of their abettors has ever undertaken to assign the principle of unfitness, the species or degree of delinquency, on which the House of Commons will expel, nor the mode of proceeding upon it, nor the evidence upon which it is established. The direct consequence of which is, that the first franchise of an Englishman, and that on which all the rest vitally depend, is to be forfeited for some offence which no man knows, and which is to be proved by no known rule whatsoever of legal evidence. This is so anomalous to our whole constitution, that I will venture to say, the most trivial right which the subject claims, never was, nor can be, forfeited in such a manner.
The whole of their usurpation is established upon this method of arguing. We do not make laws. No; we do not contend for this power. We only declare law; and, as we are a tribunal both competent and supreme, what we declare to be law becomes law, although it should not have been so before. Thus the circumstance of having' no appeal from their jurisdiction is made to imply that they have no rule in the exercise of it; the judgement does not derive its validity from its conformity to the law; but preposterously the law is made to attend on the judgement} and the rule of the judgement is no other than the accqfional -will of the House. An arbitrary discretion leads, legality follows; which is just the Very nature and description of a legislative act.
This claim in their hands was no barren theory. It was pursued into its utmost consequences; and
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a dangerous principle has begot a correspondent practice. A systematic spirit has been fhewii upon both sides. The electors of Middlesex chose a person whom the House of Commons had voted incapable; and the House of Commons has taken in a member whom the electors of Middlesex had not chosen. By a construction on that legislative power which had been assumed, they declared that the true legal sense of the county was contained in the minority, on that occasion; and might, on a resistance to a vote of incapacity, be contained in any minority.
When any construction of law goes against the spirit of the privilege it was meant to support, it is a vicious construction. It is material to us to be represented really and bona fide, and not in forms, in types, and shadows, and fictions of law. The right of election was not established merely as a matter of form, to satisfy some method and rule of technical reasoning; it was not a principle which might substitute a Titius or a Maevius, a John Doe or Richard Roe, in the place of a man specially chosen; not a principle which was just as well satisfied with one man as with another. It is a right, the effect of which is to give to the people, that man, and that man only, whom by their voices, actually, not constructively given, they declare that they know, esteem, love, and trust. This right is a matter within their own power of judging and feeling; not an ens rationis and creature of law: nor can those devices, by which any thing else is substituted in the place of such an actual choice,
answer answer in the least degree the end of representation. ;, ■ ,
I know that the courts of law have made as strained constructions in other cafes. Such is the construction in common recoveries. The method of construction which in that case gives to the persons in remainder, for their security and representative, the door-keeper, cryer, or sweeper of the Court, or some other shadowy being without substance or effect, is a fiction of a very coarse texture. This was however sufferedy/ by the acquiescence of the whole kingdom, for agesjr because the evasion of the old statute of Westminster, which authorised perpetuities, had more sense and utility than the law which was evaded. But an attempt to turn the right of election into such a farce and mockery as a fictitious fine and recovery, will, 1 hope, have another fate; because the laws which give it are infinitely dear to us, and the evasion is infinitely contemptible.
The people indeed have been told, that this power of discretionary disqualification is vested in hands that they may trust, and who will be sure not to abuse it to their prejudice. Until I find something in this argument differing from that on which every mode of despotism has been defend-: ed, I shall not be inclined to pay it any great compliment. The people are satisfied to trust themselves with the exercise of their own privileges, and do not desire this kind intervention of the House of Commons to free them from tha burthen. They are certainly in the right. Theyought not to trust the House of Commons with a
G a- power power over their franchises: because the constitution, which placed two other co-ordinate powers to controul it, reposed no such confidence in that body. It were a folly well deserving servitude for its punishment, to be full of confidence where the laws are full of distrust; and to give to an House of Commons, arrogating to its sole resolution the most harm and odious part of legislative authority, that degree of submission which is due only to the Legislature itself.
When the House of Commons, in an endeavour to obtain new advantages at the expence of the ether orders of the State, for the benefit of the Commons at large, have pursued strong measures; if it were not just, it was at least natural, that the constituents should connive at all their proceedings; because we were ourselves ultimately to profit. But when this submiflion is urged to us, in a contest between the representatives and ourselves, and where nothing can beput into their scale which is not taken from ours, they fancy us to be children when they tell us they are our representatives, our own flesh and blood, and that all the stripes they give us are for our good. The very desire of that body to have such a trust contrary to law reposed in them, shews that they are not worthy of it. They certainly will:abuse it; because all men possessed of an uncontrouled discretionary power leading to the aggrandisement and profit of their own body have always abused it: and I see no particular sanctity in our times, that is at all likely, by a ''--" miraculous