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OCCASIONAL ESSAYS

ON

POLITICAL SUBJECTS.

ON THE EXCLUSION OF MR. JOHN WILKES FROM HIS SEAT IN THE HOUSE OF COMMONS, AS MEMBER FOR THE COUNTY Of middlesex, AFTER HIS EXPULSION AND RE-ELECTION.

To the Printer of the PUBLIC ADVERTISer.
March 16, 1771.

SIR,

I CANNOT

CANNOT help being ftrongly of opinion that an Act of Parliament to the following purport would tend greatly to allay the difcontents that have prevailed among the people ever fince the Middlefex election: and therefore I beg you would infert the following draft of fuch a bill in your paper. The advantages that, I conceive, would arise from it are as follows.

In the first place, it would fecure the rights of the Electors of Great Britain to chufe their own representatives, from being controuled on any future occafion by the negative of a majority of the House of Commons, exercised under the form of an expulfion from that Houfe for fome vague and arbitrary crime, or defect, in the object of their displeasure, unknown to, and undefined by, the known laws of the land,

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and not proved with the ftrictness and folemnity that are deemed neceffary to the conviction and punishment of an offence of the slightest nature in our criminal courts of justice. The apprehenfion of the poffibility of fuch proceedings in time to come, is what alarms the generality of impartial people rather than an opinion that this power was really so abused in the cafe of Mr. Wilkes and the Middlefex election. To remove this apprehenfion is therefore an object of the laft importance.

In the next place, fuch an act of parliament would confirm all the proceedings of the House of Commons with respect to Mr. Wilkes on the rational and substantial ground of his being under a temporary incapacity of being elected a member of parliament, arifing from the circumftance of his being then in prifon, in execution of a sentence of the court of King's Bench, and confequently unable to attend his duty in parliament; and, by fo confirming the proceedings of the Commons, it would entirely preferve their honour and dignity, and make it unneceffary that they should receed from any of their refolutions.

I am fenfible, however, that it may here be objected that one of their refolutions, namely, the important refolution of Mr. Wilkes's incapacity to be a member of parliament, made on the 17th day of February, 1769, and which is expreffed in the words following, to wit,

"Refolved,

"That John Wilkes, Efquire, having been in this feffion of parliament expelled this Houfe, was and is incapable of being elected a member to ferve in this present parliament," may at firft fight feem to be contradicted and overruled by the provifions of the annexed act of parliament: but, upon a clofer examination of it, it will be found to be capable of a construction that is confiftent with

thofe

thofe provifions, and even that this conftruction is the true and proper conftruction that ought to be given to it. This I fhall now endeavour to prove.

The judgments of every court of juftice ought, if the words in which they are expreffed will bear it, to be conftrued in fuch a manner as to make them adequate and commenfurate to the points then under confideration in fuch courts, and to the authority legally vefted in the Judges by whom they are pronounced, rather than in fuch a manner as will make them extend to cafes not then under confideration, and which the judges therefore have not, perhaps, on fuch occafions a competent authority to determine.— This, I prefume, will readily be allowed; and, being fo, we muft, in the next place, obferve, that the House of Commons, when they paffed that refolution, were acting in a judicial, and not in a legislative, capacity: they were determining whether, according to the laws then in being, Mr. Wilkes, who had been chofen knight of the fhire for Middlesex on the preceeding day, the 16th day of February, 1769, was entitled, by virtue of that election, to fit and vote as a member of that Houfe. They did not pretend to a power of making him incapable of fitting there by an ex post facto refolution, if he was legally capable of being elected to fit there at the time of such election ; but only, as the proper judges of the validity of all parliamentary elections, to a power of declaring "what the law then was refpecting his capacity to be fo elected:" they therefore had no right to confider, nor to give judgment upon, any other point, but that of his capacity to be elected a member of parliament for the county of Middlefex, on the faid 16th day of February, 1769. No other point was judicially before them : and, if they had clearly and expreffly refolved, that Mr. Wilkes was not only then incapable of being elected a member of parliament, but that fuch incapacity would continue in him during this whole parliament, they would,

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in this fecond part of fuch refolution, have acted in an extrajudicial manner, and without a competent authority; and fuch a decifion would have been entitled to but little regard either from themselves on any fubfequent occafion, or from any other perfon. But this they have not done in their refolution of the 17th of February, 1769, above recited, though at first fight it may feem to carry that meaning; for the words of it are," that he was and is incapable of being elected a member to ferve in this present parliament; that is, as I conceive, he was at the time of his election on the pre ceding day, the 16th of February, 1769, and is at the time then present, namely, the 17th day of February, incapable of being elected a member of parliament. It does not fay that he fhall or will continue fo during the whole continuance of this parliament, which was a point not then under confideration.

As to the words, "having been in this feffion of parliament expelled this Houfe," which immediately precede the words that declare his incapacity, they are introduced only by way of recital, and are not faid to be the ground of the subsequent adjudication of incapacity, and need not neceffarily be underfood fo; but they ought rather to be confidered as a fhort reference to the grounds and reasons upon which he was expelled, fome of which were likewife caufes of an incapacity to be elected; and fo the meaning of the whole refolution will be as follows: "Whereas Mr. Wilkes was expelled from the Houfe of Commons in this feffion of parliament, to wit, on the 3d of February, 1769, upon divers good and fufficient grounds and reafons, fome of which were not only good grounds for expelling him, but did really and truly, if they had been properly attended to, render him incapable of being legally elected a member of this parliament; and whereas thefe reafons, that thus rendered him incapable of being legally elected a member of parliament, do still fubfift; it is therefore refolved and adjudged

adjudged by this House, that he was at the time of his laft election, to wit, on the 16th day of February, 1769, and till is at this prefent time, to wit, on the 17th of February, 1769, incapable of being elected a member to ferve in this prefent parliament."

This feems to me to be a reasonable conftruction of this famous refolution: and if the words of it will bear this fenfe, as I flatter myself I have fhown they will, it is furely better to understand them in this manner than to interpret them in the other manner above-mentioned, and thereby to make them, byconftruction contain a dangerous and extra-judicial refolution of the Houfe of Coinmons in a matter of fuch high importance, which would be no way fuitable to the dignity of the Houfe, or to the character of wife and confiderate judges that were giving a judicial determination of the point that was then before them.

Now, if this mild and inoffenfive interpretation of this refolution be allowed to be juft, there will be nothing in the act of parliament here recommended in any degree contrary to this or any other of the refolutions of the House of Cummons upon this fubject. This is a fecond advantage in the bill here propofed.

A third advantage arifing from t would be the removing of all the ridiculous doubts and opinions that have been entertained concerning the capacity of an Outlaw to fit and vote in parliament; notwithstanding he is a creature that, as Mr. Wilkes has well obferved, has no political existence, but is liable to have all his goods and chatte!s, and the rents and profits of his lands, taken into the king's hands, as forfeited to his Majefty by the outlawry, and his body kept in prifon during life. No well-wisher to the liberties of his country would, I prefume, defire to fee the reprefentatives of the Commons of this kingdom compofed of perfons in fuch dependent circumstances.

And if, after fuch an act of parliament, colonel Luttrel

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