This claim in their hands was no barren theory. It
was pursued into its utmost consequences; and a dangerous principle has begot a correspondent practice. A systematic spirit has been shown 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 country 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 bonâ 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 Mævius, 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 anything else is substituted in the place of such an actual choice, answer in the least degree the end of representation.
I know that the courts of law have made as strained
constructions in other cases. 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, crier, 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 suffered by the acquiescence of the whole kingdom, for ages; because the evasion of the old statute of Westminster, which authorized 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, I 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 defended, 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 the burden. They are certainly in the right. They ought not to trust the House of Commons with a power over their franchises; because the constitution, which placed two other co-ordinate powers to control 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 a House of Commons,
arrogating to its sole resolution the most harsh 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 endeavor to obtain new advantages at the expense of the other 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 submission is urged to us, in a contest between the representatives and ourselves, and where nothing can be put 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, shows that they are not worthy of it. They certainly will abuse it; because all men possessed of an uncontrolled discretionary power leading to the aggrandizement 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 operation, to overrule the course of nature.
But we must purposely shut our eyes, if we consider this matter merely as a contest between the House of Commons and the electors. The true contest is between the electors of the kingdom and the crown; the crown acting by an instrumental House of Commons. It is precisely the same, whether the ministers of the crown can disqualify by a dependent House of Commons, or by a dependent Court of Star Chamber, or by a dependent Court of King's Bench
If once members of Parliament can be practically convinced that they do not depend on the affection or opinion of the people for their political being, they will give themselves over, without even an appearance of reserve, to the influence of the court.