release of members imprifoned for words fpoken in the houfe: nay, the form of requefting freedom of fpeech, as a favour from the crown, is ftill 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, acquiefced and fubmitted to the claim, when all its confequences were feen. • You will be fingular, 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 cafes; or in a new cafe, not expressly provided for, decides, upon analogous reafoning. My grand objection to the power of expulfion, 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 apprehenfion, 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 fubordinate legiflatures exift in the feveral towns of the kingdom. Every power which is not fupreme, cannot be therefore judicial, or negatively not legiflative. What if I should affirm, that no exifting power in any state is, properly speaking, Supreme? Even the authority of parliament is fubordinate to the fundamental conftitution of the established government. They can make laws, but not legiflators. Parliament cannnot grant to the house of commons a power of expulfion in the extent contended for, because it is inconfiftent with the judicial power, which they already poffefs. For if they can expel whom they pleafe, they may declare the confequence to be what they pleafe; and are completely abfolute. Such an act would be a renunciation of the trust reposed in parliament, but could not operate to fubmit the rights of the people to the will of any body of men. Men cannot be tranfferred from hand to hand, like a flock of fheep. Neither does the acquiefcence of the legislature always make law, otherwife any one branch thereof, paffelfing an abfolute negative, might enjoy what power it's members were pleased to affume. None can judge between this branch of the legislature and the people; because none are fuperior in the ftate. Oppofition must at first be made by remonftrance; and in this the people have fometimes fupported the lords against their own reprefentatives, in defence of the conftitution. If thefe means fail, the conteft 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 exifted upon this fubject. No fuperior entitled to judge between him and his people. He affumed the legifla- tive 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 depofed. We cannot doubt but our king, whose ancestors obtained the crown in confequence of fuch a revolution, will join his people in refifting every attempt of an houfe of commons to affume legislative power to themfelves. The power of diffolving parliaments is the means entrusted in his hands for this purpose; and, to doubt his exertion of fuch right, if the obftinacy of any body of men should render this neceffary, would be a degree of guilt little fhort of treason to the house of Hanover. My Effay was haftily written, and publifhed with little correction; I, nevertheless, find that (mifrepresentation removed) there is but one argument in your pamphlet, on the head of expulfion, which has not there received an answer. The power of expulfion in corporations did not escape me; but I avoided mentioning what was obviously inapplicable. I might fay that corporation law was established, when the crown exercised a legislative power in almoft every part of go-. vernment; when opinions of judges were eafily procured to' fanctify an arbitrary act by legal forms; when all foreign commerce was abandoned to the will 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 fhall make bye-laws, which may affect the common profit of the people, unless they be approved by the chancellor, treasurer, and chief juftices, or the juftices of affize in their circuits." All thefe arguments I fhall not infift upon, for this of corporations is the very instance I should have chosen to illuftrate all my principles. The member is always expelled by the body which poffeffes the legislative power in that community, from the consent of all the members expreffed by voluntarily becoming fuch, or, in new corporations, by an acceptance of the charter. This power generally refides in the body at large. In either cafe it is exaly analogous to a bill of banishment, which I believe you. will not pretend the house of commons could enact by their Jole authority. This exercise of legislation by bodies corporate, after the defignation of a particular object, has been found from experience to be fo liable to abuse, that the court of King's Bench has, with the general approbation of the kingdom, affumed a power of commanding by writ the re-admiflion of members expelled; and has, by repeated adjudications, reduced this claim to a mere power of declaring a forfeiture of the fran chife at common law fubject to the revifal of a fuperior tribunal. • There is yet an affertion, not an argument, which may deferve attention. You fay, whether a power to fend an offend ing member back to his conftituents, for them either to confirm or reprobate their former choice, may not be properly vested in the house of commons, cannot be seriously confidered. It involves a degree of ridicule, not to be expreffed. Good Sir! be not outrageoufly wife. The principle has already been adopted by parliament. Decency, therefore, requires we fhould be moderate in our comments. This would be nothing more, than a power in the houfe of commons to do in particular cafes, what the legiflature has done refpecting a general clafs of men. By the place-bill, parliament has declared, that the acceptance of certain offices may make fuch a change in the member, that the people may no longer choose to trust him that therefore they ought to proceed to a new election. This act fuppofes the right of choice in the people. If the power of expulfion is confidered as a right of election in the reprefentative body, who ball or stall not fit among them; if the people must be contented with a conge d'elire, then indeed fuck a limitation would be truly ridiculous. But perhaps you will not affirm this to be the fpirit of our conftitution. For my own part, I shall be perfectly fatisfied to fee the pretended power wholly abolished, and the people governed by general, equal laws.' THE AUTHOR. 24. Letter to Dr. Blackstone, by the Author of the Queftion flated. 8vo. Pr. 1s. 6d. Woodfall. Prefixed to this publication is a republication of Dr. Blackftone's letter to the author of the Question stated, which we have already reviewed. The author of the reply before us has been confidered as one of the main champions for the reeligibility of Mr. Wilkes after his expulfion, and therefore we look upon his performance as the ne plus ulira on that fide of the question. We cannot, however, help obferving, that the author's reafoning is confined to Dr. Blackftoue's works; and that he has paid no regard to many ftrong arguments advanced against his fyftem by other writers, whofe pieces we have re viewed. This writer's first attempt is to feparate the two ideas of jurifdiction and legiflation; becaufe without fuch feparation no rational conception of the prefent queftion can be formed. • See Vol. xxviii. p. 70. VOL. XXIX. Jan. 1770. F * That That it is effential, fays he, to every court of law which competent to try a caufe, to adjudge and declare what the law is, relating to the caufe under trial; and that the judgment of fuch 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 muft abfolutely ftand 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 legiflation?' We are afraid that this writer is here a little defective in precifion, by fuppofing the house of commons to be a court of law; but we have not room to investigate this question, nor do we in the leaft intend to be parties in this difpute. In cases of election, fays he, members of parliament are as mere judges as thofe of Westminster-hall.'-Is there no fallacy here?—The judges in Weftminfter-hall try cafes of property; that of an election is of a very different nature. The legiflation 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 fome cafes of one feffion. But how does the cafe ftand 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 must be nonfuited. The house of commons made a rule, if we may call it fo, that Mr. Wilkes was not eligible during the feffion of parliament, and therefore the petitions were rejected for difregarding that rule-Are not the cafes fimilar by this writer's own ftate of the queftion ? We are of opinion, that there is no difference between a legal and a parliamentary right, and that the authors on both fides have been a little too profufe in quoting modern authorities. If acts of parliament fhould be found contradictory one to another, why not opinion and precedents, which are no more than the effects of opinions too often influenced by party confiderations, be the fame ? This author afferts the freeholder's right to be a common law, and he thinks it confequential, that the maxims to try that right must also be a common law. This fentiment is not extremely perfpicuous. The maxims of a law is the law itself, otherwife the words mean nothing. In treating of the three claffes of difabilities, minors, traitors, and felons, Dr. Blackstone fays, that though a minor was incapacitated at all times from fitting in either houfe of parliament by the law and cuftom of parliament, yet that incapacity is exprefly declared by by the ftatute of the 7th and 8th of William III. with regard to the house of commons. The difference, fays our author, between these two great authors is, that Sir Edw. Coke does not mention "the law and cuftom of parliament," which words are added by doctor Blackstone. But as there was no ftatute in Sir Edw. Coke's time; nor has ever been any vote concerning minors, we have Sir Edw. Coke's authority at leaft, that the difability 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; ftill, as the incapacity exifted before the ftatute, and as there is no vote concerning minors-on what ground is it poffible for the doctor to fix this law and cuftom of parliament, but merely upon the law of the land?' This laft 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 fame with the law of the land. There might be at that time reasons for such a parliamentary decree. The civil law fuppofed, as well as our law, incapacities of minors, but the judges difpenfed with those incapacities when a minor's fhrewdness made amends for defect of years. The law of England required greater precifion. No pretence of a precox ingenium, a maturity of understanding, or an appearance of manhood, which was often the cafe, was to fmuggle a minor into either house of parliament, which, by Sir Edward Coke's testimony, was frequently the cafe. This writer, in examining the Journals, is bold to affirm, ⚫ that they do not warrant the affertion of any incapacity, being founded merely on a vote of the houfe of commons; on the contrary, every incapacity recorded in thofe Journals, appears to have previously exifted in common-law, and the votes are merely declaratory of that common law. To prove this, he mentions the cafe of Mr. Steward, in 1623, a Scotchman, who was not naturalized an Englishman, but returned to parliament; upon which the election was refolved to be void in law. The refolution was very proper, and yet directly in the teeth of our author's affertion; it appears in that very case, that the house of commons thought themselves at liberty to dispense with the common law, in the cafes of Levinus Muncke, and Horatio Palevicyne, who, though not naturalized, had been fmuggled into the houfe, and fuffered to keep their feats. With what confiftency then can this gentleman fay, in clear and ftrong terms then did the house, on this occafion, difavow the power of adjudging a denifon capable, whom the law has made incapable.' |