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agents only, or their representatives. It follows directly, from the very idea of choice, that such choice must be free and uncontroled, admitting of no restrictions but the law of the land, to which king and lords are equally subject, and what must arise from the nature of the trust. A peer of parliament, for instance, cannot be clected a member of the house of commons, because he already forms part of another branch of the same legislative body. A lunatic has a natural incapacity. Other instances might be mentioned, but those two are sufficient. The freedom of election is, then, the common right of the people, their fair and just share of power; and I hold it to be the most glorious inheritance of every subject of this realm, the noblest, and I trust, the most solid part of that beautiful fabric, the English constitution. Here I might learn, sir, on the most respectable authorities which can be cited, the supreme judicature of the kingdom, and the veneral'e judges of former ages as well as of our own times. I met them accidentally this morning in the course of my reading, as an old friend (the duke of Grafton) of Wilkes and Liberty, now, alas! lost to every sense of duty to his country, frequently tells another assembly, he accidentally meets all the tiresome quotations he makes. The house of peers, in the case of Ashby and White in 1704, determined, “ A man has a right to his freehold by the common law; and the . law having annexed his rights of voting to his freehold, it is of the nature of his freehold, and must depend upon it.” On the same occasion likewise they declared, “ It is absurd to say, the electors' right of choosing is founded upon the law and custom of parliament. It is an original right, part of the constitution of the kingdom, as much as a parliament is, and from whence the persons elected to serve in parliament do derive their authority, and can have no other but that which is given to them by those that have the original right to choose them.” The greatest law authorities, both ancient and modern, agree in opinion, that every subject of the
realm, not disqualified by law, is eligible of common right. Lord Coke, lord Chief Justice Holt, and Mr. Justice Blackstone, are the only authorities I shall cite. I regard not, sir, the slavish courtly doctrines propagated by lawyers in either house of parliament, as to the rights of the subject, no more than I do as to what they call high treason and rebellion. Such doctrines are de. livered here only to be reported elsewhere. These men have their reward. But the venal tongue of a prostitute advocate or judge is best answered by the wise and sober pen of the same man, when in a former cool mament, unheated by party rage or faction, after the fullest deliberation, he gave to the nation, to the present age, and to posterity, a fair and impartial detail of their undoubted rights; and when he laid down in clear and express terms the plain law of the land Lord Coke says, “ He which is eligible of common right, cannot be disabled by the said ordinance of parliament, unless it had been by act of parliament.” Lord Chief Justice Holt declares, “ The election of knights belongs to the freeholders of counties, and it is an original right, vested in, and inseparable from the freehold, and can no more be severed from their freehold, than their freehold itself can be taken away.” Mr. Justice Blackstone, in the first book of his commentaries, has the following words : “ Subject to these restrictions and dis. qualifications, every subject of the realm is eligible of common right.” This common right of the subject, sir, was violated by the majority of the last house of commons, and I affirm, that they, and in particular, if I am rightly informed, the noble lord with the blue ribband, committed high treason against Magna Charta. This house only, without the interference of the other parts of the legislature, took upon them to make the law. They adjudged me incapable of being elected a member to serve in that parliament, although I was qualified by the law of the land ; and the noble lord declared, any other candidate had only six votes, he would seat
him for Middlesex*.” I repeat it, sir, this violence was a direct infringement of Magna Charta,
high trea. son against the sacred charter of our liberties. The words to which I allude ought always to be written in letters of gold, “No freeman shall be disseized of his free. hold, or liberties, or free customs, unless by the lawful judgment of his peers, or by the law of the land.” By the conduct of that majority, and of the noble lord, they assumed to themselves the power of making the law, and at the same moment invaded the rights of the people, the king, and the lords. The two last tamely acquiesced in the exercise of a power, which had been in a great instance fatal to their predecessors, had put an end to their very existence; but the people, sir, and in particular, the spirited freeholders of this county, whose ruling passion is the love of liberty, have not yet forgiven the attack on their rights. So dangerous a precedent of violence and injustice, which may in future times be cited by a despotic minister of the crown, ought to be expunged from the journals of this house.
I have heard and read much of precedents to justify the proceeding of the majority of the last house of commons. I own, sir, I value very little the doctrine of precedents. There is scarcely any new villainy under the sun. A precedent can never justify any action in itself wicked ;--a robbing, for instance, on the heaths of Hounslow or Bagshot, of which there are innumerable precedents. The basest actions may be justified from precedents drawn from bad times and bad men, The sole question is, whether this power is not a direct usurpation on the rights of the people? If that is proved, I care not how long the usurpation has been continued, how often practised. It is high time to put an end to it. It
• This is a mistake. Lord Stanley said the worthy magistrate was mistaken in ascribing to the noble lord (lord North) the declaration, If any other candidate had only six votes, he should be member for Middlesex. It was his father, the late lord Strange, dhe said, who made that declaration,
was the case with general warrants. One precedent, however, the most insisted upon, I must take notice of, because it is said fully to come up to the point ; but in my opinion, in almost every part it proves the contrary of what it has been brought to support-I mean the res markable case of Mr. Walpole in 1711, a period in which the rankest tory principles were countenanced more than in any period of our history prior to 1760. The case has been so partially quoted, even by a person whose sole merit here was an assumed
accuracy, which he never possessed (Jeremiah Dyson, Esq.) that I shall desire it may be read to the house from our Journals. The date is March 6, 1711.
[The Clerk reads, “ Resolved, that Robert Walpole, Esq. having been this session of parliament, committed a prisoner to the Tower of London, and expelled this house for an high breach of trust in the execution of his office, and notorious corruprion when secretary of war, was and is incapable of being elected a member to serve in the present parliament.”]
Now, sir, I must observe, that even that parliament. at an æra so hostile to the liberties not only of England but of Europe, did not venture to judge him incapable of being elected a member to serve in that parliament only because he was expelled ; but in the body of the resolution itself they add another reason, which would be trifing, if one was sufficient and adequate to the pointthe high breach of trust in the execution of his office, notorious corruption, when secretary of war. As trustees for the public, they assigned a cause, which must interest every member of the community. In the case of Mr. Wilkes, the late majority declared, “ That John Wilkes, Esq. having been in this session of parliament expelled this house, was and is incapable of being elected a member to serve in this present parliament.” The having heen expelled, whether justly or unjustly, is the only reason they gave to the public. I shall not yet, sir, dismiss the case of Mr. Walpole. It will prove another pro
position I have maintained—the injustice of the late majority in seating Mr. Luttrell in this house. The fact is, that the house of commons having expelled Mr. Walpole, ordered a new writ to issue. At the subsequent election, Mr. Walpole was again returned. A Mr. Taylor, who had a minority of votes, petitioned, but the election was vacated. Had the doctrine propagated by the late majority, and by the noble lord in the blue ribband, been just, Mr. Taylor ought to have sat; the house should have resolved he ought to have been returned, and the greatest injustice was actually done to him. But even that parliament, whose memory the nation execrates, dared not proceed to such enormous wickedness. It was reserved for the present æra, when shame has lost its blush. Mr. Luttrell was for some years declared to represent the county of Middlesex, although a great majority of the freeholders abhorred and reprobated the idea, and on every public occasion declared it.
Sir, when the strong reasons on which any doctrine is founded, bear me out, I care little about precedents. I recollect, however, another instance, of Mr. Woollaston, which directly meets an objection, which has been much relied upon, " That expulsion necessarily implies incapacity.” It is the last I shall desire the clerk to read. I wish him to turn to the journals of February 20, 1698.
[The Clerk reads, “ Resolved, that Richard Woollaston, Esq. being a member of the house of commons, and having since been concerned and acted as a receiver of the duties, &c. contrary to the act made in the 5th and 6th of his majesty's reign, &c. be expelled this house."]
Now, sir, I defy all the subtlety of the most expert court lawyer among us, all the sophistry of the bar, lo reconcile this case with the favourite court tenet, that expulsion implies incapacity, because the fact is ascertained, that a new writ did issue for the borough of Whitchurch, and that Mr. Woollaston was re-elected, and sat in the same parliament. Incapacity, therefore, does not necessarily follow expulsion.