by houfe of com mons. There is another general difqualification for Incapacitation a limited time, as it creates an ineligibility either to county, city, or borough, during the time it lafts, which cannot be beyond the period of one parliament; that is, where a perfon is declared by a folemn resolution of the house of commons to be incapable of fitting as a member thereof during that parliament. The exercife of this power of removing a member by a vote of the house of commons feems grounded on continued ufage, which is called the law of parliament. Such a power feems naturally and even neceffarily to belong to all aggregate bodies. They cannot exift honourably, and fulfil the object of their creation without it. The ufe, however, of this power fhould be regulated by the ftricteft juftice; for, if once the violence of party is let loofe upon an object, and a representative of the people is discharged of the truft conferred upon him by his conftituents, without good caufe, the representative body affumes a power of control over the constituent body inconfiftent with the freedom of election. Any crime which renders a man infamous has been made a ground, fometimes, of actual and exprefs expulfion;-fometimes (which amounts to the fame, clothed only in gentler terms) of being discharged from fitting as a member of that house. Thus bribery, before as well as fince the ftatute of King William, has been held a fufficient reafon for expulfion. So a breach of Com. Journ. 13 P. 251. 12 12 An. 32. p. W. 3 17. p. 128. 387.9 G. 3. v. 1. p. 632. 11 Journ. 632. declaration of Expulfion, and 17 Journ. p. 128. Hale Parl. 113. truft in an office of the ftate, or corruption in that office, has been refolved a good caufe. And a conviction for obicene and blafphemous libel, followed by a judgment of the King's Bench, of fine and imprisonment, and actual execution under it, have been determined fufficient to call forth this mark of cenfure from the house. But it seems neceffary for the house to follow up its refolution of expulfion, by an actual declaration of the party expelled being incapable of fitting as a member, to make him actually ineligible. For whatever crime a member be removed, even in the cafe of a felon convict, the new writ cannot iffue till after the judgment of removal is pronounced by the house. In the inftances alluded to above, the house did proceed to such declaration, and in confequence thereof, declared the re-election of the fame perfon, in the two former instances, void. In the last inftance, the expulfion was not followed up by a declaration of incapacity immediately, and the party expelled being reelected and returned again, his election was refolved to be void, and he was then declared incapable of being elected a member to ferve in that parliament. And having again become a candidate and being re-elected and returned, his election was again held void, and the votes, being given with notice of the declaration of incapacity, were deemed to be thrown away, and the candidate with a smaller number of votes was declared duly elected. This refolution however, however, was afterwards, at a confiderable interval, expunged by order of another refolution of the house. The precedent, therefore, is not only done away, but reprobated. If, however, the question were to arise upon the cafe of a felon convict, or of one convicted of perjury, or upon a cafe of acknowledged infamy, divested of all party considerations, whether a perfon expelled for fuch offence, and declared incapable of fitting in that parliament, could be re-elected, it is probable the house of commons would feel confiderable reluctance to fubmit in this refpect to the obftinacy of the place represented; for the power of expulfion feems to involve in it fuch a power of incapacitation. Otherwise, if a perfon fo expelled and declared ineligible, could be re-elected, and must be again re-expelled, and so toties quoties, as long as the infamy and fentence of incapacitation continued, the place for which such person fhould be re-elected, would remain unreprefented, and the reprefentative body, in this ftruggle, would continue imperfect, to the prejudice of the rights of the people at large, who are interested in having the popular affembly of the nation complete, and to the delay and hindrance of public affairs. have taken their feats. Any perfon already a member of parliament, Members who after he is returned, is ineligible for any other place, unless he vacates his former feat; for it would be actum agere, and the due number of * D 3 the Petitioner, Placemen. 5 W. & M. c. 7. 1. 57. 12 & 13 W. 3. c. 10. the reprefentative body would be wanting. But perfons elected, before they are returned, are eligible, and frequently are elected for other places alfo, and cannot make their election till fourteen days after their return. It has been held also, that a petitioner, depending his petition in parliament, may be chofen for another place. The acceptance of almost any public office or emolument under government, by various acts of parliament fince the Revolution, has, in fome inftances, rendered the acceptor thereof ineligible; and, in others, has vacated his feat. Thus, by the 12 & 13 W. 3. it is enacted, that no member of the house of commons should, after that parliament, be capable of executing by himself, or deputy, any office or place concerning the farming, collecting, or managing of the customs: And if he did, fuch perfon is thereby declared incapable of fitting or voting as a member of the house in 6 An. c. 7. f. 25, fuch parliament. And by the 6th of Anne, no person who fhall in his own name, or in the but are re-eligi- name of any other, have, &c. any new office, or place of profit under the crown (created fince the 25 Oct. 1705), nor any person who is a commiffioner of prizes; fecretary or receiver of the prizes; nor any comptroller of the accounts of the army; nor any commiffioner of transports; nor any commiffioner of the fick 26. Perfons whofe feats are avoided ble. and wounded; nor any agent for any regiment; nor commiffioner for wine licences; nor any governor or deputy governor of the plantations; nor commiffioner of the navy employed in the outports; nor penfioner of the crown during pleasure (which by 1 G. 1. c. 56. is extended to a penfioner for years certain); fhall be capable of being elected, or of fitting or voting as a member of parliament; and fuch election is declared void to all intents and purpofes; and the perfon fo fitting or voting, fhall forfeit gool. But that act is declared not to S. 26. extend to any officers in the navy or army: And it is alfo provided, that if any perfon, being chosen a member, fhall accept of any office of profit from the crown, during the time of his continuing member, whereby his feat becomes void, and a new writ iffues, that such perfon fhall be capable of being again elected. By 7 G. 2. no judge of the court of feffions, 7 G. 2. c. 56. or jufticiary, or baron of the court of exchequer, in Scotland, fhall be capable of being elected or of fitting and voting as a member. And by the 15 G. 2. no perfon who fhall be commiffioner of the revenue in Ireland; or commiffioner of the navy or victual ling offices; nor any deputies or clerks in any of the faid offices, or in any of the feveral offices of lord high treasurer; or the commiffioners of the treafury; or chancellor of the exchequer; or of the lord high admiral; or the commiffioners of the admiralty; or 15 G. 2. c. 22. Perfons incapa ble of being elected, or fitting. |