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To the Printer of the PUBLIC ADVERTISER.

March 16, 1771. I

CANNOT help being strongly of opinion that an Act of Parliament to the following purport would tend greatly to allay the discontents that have prevailed among the people ever since the Middlesex election : and therefore I beg you would insert the following draft of such a bill in your paper. The advantages that, I conceive, would arise from it are as follows.

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



and not proved with the striểness and folemnity that are deemed necessary to the convi&ion and punishinent of an offence of the lightest nature in our criminal courts of justice. The apprehension of the pollibility of such 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 case of Mr. Wilkes and the Middlesex ele&ion. To remove this apprehension is therefore an object of the last importance.

In the next place, such 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, arising from the circumstance of his being then in prison, in execution of a sentence of the court of King's Bench, and consequently unable to attend his duty in parliament; and, by so confirming the proceedings of the Commons, it would entirely preserve their honour and dignity, and make it unnecessary that they should receed from any of their resolutions.

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

6. Resolved,

« That John Wilkes, Esquire, having been in this feffion of parliament expelled this House, was and is incapable of being clected a member to serve in this present parliament," may at first sight seem to be contradicted and overruled by the provisions 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 confifient with those provisions, and even that this constru&tion is the true and proper construction that ought to be given to it. This I shall now endeavour to prove.


The judgments of every court of justice ought, if the words in which they are expressed will bear it, to be construed in such a manner as to make them adequate and commensurate to the points then under consideration in such courts, and to the authority legally vested in the Judges by whom they are pronounced, rather than in such a manner as will make them extend to cases not then under confideration, and which the judges therefore have not, perhaps, on such occasions a competent authority to determine. This, I presume, will readily be allowed; and, being so, we muft, in the next place, obferve, that the House of Commons, when they passed that resolution, 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 chosen knight of the shire for Middlesex on the preceeding day, the 16th day of February, 1769, was entitleci, by virtue of that election, to fit and vote as a member of that House. They did not pretend to a power of making him incapable of fitting there by an ex post facto resolution, if he was legally capabie 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, 10 a power of declaring “ what the law then was respecting bis capacity to be so elected:” they therefore had no right to consider, nor to give judgment upon, any other point, but that of his capacity to be elected a member of parliament for the county of Middlesex, on the said it th day of February, 1769. No other point was judicially before them : and, if they had clearly and expressly resolved, that Mr. Wilkes was not only then incapable of being elected a member of parliament, but that such incapacity would continue in him during this whole parliament, they would, in this second part of such resolution, have acted in an extrajudicial manner, and without a competent authority ; and such a decifion would have been entitled to but little regard cither from themselves on any subsequent occasion, or from any other person. But this they have not done in their resolution of the 17th of February, 1769, above recited, though at first fight it may seem to carry that meaning ; for the words of it are, “ that he was and is incapable of being elected a member to serve 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 say that he shall or will continue so during the whole continuance of this parliament, which was a point not then under consideration.

As to the words, “having been in this session of parliament expelled this House,” which immediately precede the words that declare his incapacity, they are introduced only by way of recital, and are not said to be the ground of the subsequent adjudication of incapacity, and need not necessarily be understood so; but they ought rather to be considered as a short reference to the grounds and reasons upon which he was expelled, some of which were likewise causes of an incapacity to be elected ; and so the meaning of the whole resolution will be as follows: " Whereas Mr. Wilkes was expelled from the House of Commons in this session of parliament, to wit, on the 3d of February, 2769, upon divers good and sufficient grounds and reasons, some of which were not only good grounds for expelling him, but did really and trulv, if they had been properly attended 10, render him incapable of being legally elected a member of this parliament; and whereas these reasons, that thus rendered him incapable of being legally clected a member of parliament, do still sublilt ; it is therefore resolved and


adjudged by this House, that he was at the time of his last election, to wit, on the 16th day of February, 1769, and {till is at this present time, to wit, on the 17th of February, 1769, incapable of being elected a member to serve in this present parliament.”

This seems to me to be a reasonable construction of this famous resolution: and if the words of it will bear this sense, as I flatter myself I have shown they will, it is surely better to understand them in this manner than to interpret them in the other manner above-mentioned, and thereby to make them, byconstruction contain a dangerous and extra-judicial resolution of the House of Coinmons in a matter of such high importance, which would be no way suitable to the dignity of the House, or to the character of wise and confiderate judges that were giving a judicial deterinination of the point that was then before them.

Now, if this mild and inoffensive interpretation of this resolution be allowed to be just, there will be nothing in the act of parliament here recommended in any degree contrary to this or any other of the resolutions of the House of Commons upon this subject. This is a second advantage in the bill here proposed.

A third advantage arising from t would be the removing of all the ridiculous doubts and opinions that have been entertained concerning the capacity of an Ouilaw to fit and vote in parliament ; notwithstanding he is a creature that, as Mr. Wilkes has well observed, 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 Majesty by the outlawry, and his body kept in prison during life. No well-wisher to the liberties of his country would, I presume, desire to see the representatives of the Communs of this kingdom composed of persons in such dependent circumstances. And if, after such an act of parliament, colonel Luttrel

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