It must be considered, that those votes only are legal which are legally given, and that those only are legally given, which are given for a legal candidate.
It remains, then, to be discussed, whether a man expelled can be so disqualified by a vote of the house, as that he shall be no longer eligible by lawful electors.
Here we must again recur, not to positive institutions, but to the unwritten law of social nature, to the great and pregnant principle of political necessity. All government supposes subjects; all authority implies obedience: to suppose in one the right to command what another has the right to refuse, is absurd and contradictory; a state, so constituted, must rest for ever in motionless equipoise, with equal attractions of contrary tendency, with equal weights of power balancing each other.
Laws which cannot be enforced can neither prevent nor rectify disorders. A sentence which cannot be executed can have no power to warn or to reform. If the commons have only the power of dismissing, for a few days, the man whom his constituents can immediately send back; if they can expel, but cannot exclude, they have nothing more than nominal authority, to which, perhaps, obedience never may be paid.
The representatives of our ancestors had an opinion very different: they fined and imprisoned their members; on great provocation, they disabled them for ever; and this power of pronouncing perpetual disability is maintained by Selden himself.
These claims seem to have been made and allowed, when the constitution of our government had not yet been sufficiently studied. Such powers are not legal, because they are not necessary; and of that power which only necessity justifies, no more is to be admitted than necessity obtrudes.
The commons cannot make laws; they can only pass resolutions, which, like all resolutions, are of force only to those that make them, and to those, only while they are willing to observe them.
The vote of the house of commons has, therefore, only so far the force of a law, as that force is necessary to preserve the vote from losing its efficacy; it must begin by operating upon themselves, and extend its influence to others, only by consequences arising from the first intention. He that starts game on his own manor, may pursue it into another.
They can properly make laws only for themselves: a member, while he keeps his seat, is subject to these laws; but when he is expelled, the jurisdiction ceases, for he is now no longer within their dominion.
The disability, which a vote can superinduce to expulsion, is no more than was included in expulsion itself; it is only a declaration of the commons, that they will permit no longer him, whom they thus censure, to sit with them in parliament; a declaration made by that right, which they necessarily possess, of regulating their own house, and of inflicting punishment on their own delinquents.