But the people have been told, with great confidence, that the house cannot control the right of constituting representatives; that he who can persuade lawful electors to choose him, whatever be his character, is lawfully chosen, and has a claim to a seat in parliament, from which no human authority can depose him.
Here, however, the patrons of opposition are in some perplexity. They are forced to confess, that, by a train of precedents, sufficient to establish a custom of parliament, the house of commons has jurisdiction over its own members; that the whole has power over individuals; and that this power has been exercised sometimes in imprisonment, and often in expulsion.
That such power should reside in the house of commons, in some cases, is inevitably necessary; since it is required, by every polity, that where there is a possibility of offence, there should be a possibility of punishment. A member of the house cannot be cited for his conduct in parliament before any other court; and, therefore, if the house cannot punish him, he may attack, with impunity, the rights of the people, and the title of the king.
This exemption from the authority of other courts was, I think, first established in favour of the five members in the long parliament. It is not to be considered as an usurpation, for it is implied in the principles of government. If legislative powers are not coordinate, they cease, in part, to be legislative; and if they be coordinate, they are unaccountable; for to whom must that power account, which has no superiour?
The house of commons is, indeed, dissoluble by the king, as the nation has, of late, been very clamorously told; but while it subsists it is coordinate with the other powers, and this coordination ceases only, when the house, by dissolution, ceases to subsist.
As the particular representatives of the people are, in their publick character, above the control of the courts of law, they must be subject to the jurisdiction of the house; and as the house, in the exercise of its authority, can be neither directed nor restrained, its own resolutions must be its laws, at least, if there is no antecedent decision of the whole legislature.
This privilege, not confirmed by any written law or positive compact, but by the resistless power of political necessity, they have exercised, probably, from their first institution, but certainly, as their records inform us, from the 23rd of Elizabeth, when they expelled a member for derogating from their privileges.
It may, perhaps, be doubted, whether it was originally necessary, that this right of control and punishment should extend beyond offences in the exercise of parliamentary duty, since all other crimes are cognizable by other courts. But they who are the only judges of their own rights, have exerted the power of expulsion on other occasions, and when wickedness arrived at a certain magnitude, have considered an offence against society, as an offence against the house.
They have, therefore, divested notorious delinquents of their legislative character, and delivered them up to shame or punishment, naked and unprotected, that they might not contaminate the dignity of parliament.
It is allowed, that a man attainted of felony cannot sit in parliament, and the commons probably judged, that, not being bound to the forms of law, they might treat these as felons, whose crimes were, in their opinion, equivalent to felony; and that, as a known felon could not be chosen, a man, so like a felon that he could not easily be distinguished, ought to be expelled.