They have, therefore, no other way to enforce the sentence of incapacity, than that of adhering to it. They cannot otherwise punish the candidate so disqualified for offering himself, nor the electors for accepting him. But if he has any competitor, that competitor must prevail, and if he has none, his election will be void; for the right of the house to reject annihilates, with regard to the man so rejected, the right of electing.
It has been urged, that the power of the house terminates with their session; since a prisoner, committed by the speaker's warrant, cannot be detained during the recess. That power, indeed, ceases with the session, which must operate by the agency of others; because, when they do not sit, they can employ no agent, having no longer any legal existence; but that which is exercised on themselves revives at their meeting, when the subject of that power still subsists: they can, in the next session, refuse to re-admit him, whom, in the former session, they expelled. That expulsion inferred exclusion, in the present case, must be, I think, easily admitted. The expulsion, and the writ issued for a new election were in the same session, and, since the house is, by the rule of parliament, bound for the session by a vote once passed, the expelled member cannot be admitted. He that cannot be admitted, cannot be elected; and the votes given to a man ineligible being given in vain, the highest number for an eligible candidate becomes a majority.
To these conclusions, as to most moral, and to all political positions, many objections may be made. The perpetual subject of political disquisition is not absolute, but comparative good. Of two systems of government, or two laws relating to the same subject, neither will ever be such as theoretical nicety would desire, and, therefore, neither can easily force its way against prejudice and obstinacy; each will have its excellencies and defects; and every man, with a little help from pride, may think his own the best.
It seems to be the opinion of many, that expulsion is only a dismission of the representative to his constituents, with such a testimony against him, as his sentence may comprise; and that, if his constituents, notwithstanding the censure of the house, thinking his case hard, his fault trifling, or his excellencies such as overbalance it, should again choose him, as still worthy of their trust, the house cannot refuse him, for his punishment has purged his fault, and the right of electors must not be violated.
This is plausible, but not cogent. It is a scheme of representation, which would make a specious appearance in a political romance, but cannot be brought into practice among us, who see every day the towering head of speculation bow down unwillingly to groveling experience.
Governments formed by chance, and gradually improved by such expedients, as the successive discovery of their defects happened to suggest, are never to be tried by a regular theory. They are fabricks of dissimilar materials, raised by different architects, upon different plans. We must be content with them, as they are; should we attempt to mend their disproportions, we might easily demolish, and difficultly rebuild them.
Laws are now made, and customs are established; these are our rules, and by them we must be guided.
It is uncontrovertibly certain, that the commons never intended to leave electors the liberty of returning them an expelled member; for they always require one to be chosen in the room of him that is expelled, and I see not with what propriety a man can be rechosen in his own room.
Expulsion, if this were its whole effect, might very often be desirable. Sedition, or obscenity, might be no greater crimes in the opinion of other electors, than in that of the freeholders of Middlesex; and many a wretch, whom his colleagues should expel, might come back persecuted into fame, and provoke, with harder front, a second expulsion.
Many of the representatives of the people can hardly be said to have been chosen at all. Some, by inheriting a borough, inherit a seat; and some sit by the favour of others, whom, perhaps, they may gratify by the act which provoked the expulsion. Some are safe by their popularity, and some by their alliances. None would dread expulsion, if this doctrine were received, but those who bought their elections, and who would be obliged to buy them again at a higher price.