not meet and censure him and his council. And in order to accomplish the important purpose of his reign, he thought that nothing could be more useful than to wrest from the commons into his own hands, or those of his creature, the chancellor, the adjudication of their elections and returns. Outlaws, whether for misdemeanors or debts, had been declared by the judges, in the reign of Henry the Sixth, incapable by law of a seat in the house, where they themselves must be lawgivers. Sir Francis Goodwin was now chosen for the county of Bucks; and his return was made as usual into chancery. The chancellor decreed him an outlaw, vacated his seat, and issued writs for a new election. Sir John Fortescue was chosen in his room. But the first act of the house was to reverse the decree of the chancellor, and restore Goodwin to his seat. At James's instigation, the lords desired a conference on this subject, but were absolutely refused by the commons, as the question regarded entirely their own privileges. They agreed, however, to make a remonstrance to the king, by their speaker; where they maintained that though the returns were by form made into chancery, yet the sole right of judging with regard to elections belonged to the house itself. James was not satisfied, and ordered a conference between the house and the judges. The commons were in some perplexity. Their eyes were now opened; and they saw the consequences of that power which had been assumed, and to which their predecessors had in some instances blindly submitted. This produced many free speeches in the house. "By this course," said one member, "the free election of the counties is taken away; and none shall be chosen but such as shall please the king and council. Let us therefore with fortitude, understanding, and sincerity, seek to maintain our privileges. This cannot be construed any contempt in us, but merely a maintenance of our common rights, which our ancestors have left us, and which is just and fit for us to transmit to our posterity." Another said, "This may be called a quo warranto, to seize all our liberties." "A chancellor," added a third, "by this course may call a parliament consisting of what persons he pleases. Any suggestion, by any person, may be the cause of sending a new writ. It is come to this plain question, whether the chancery or parliament ought to have authority." The commons, however, notwithstanding this watchful spirit of liberty,

appointed a committee to confer with the judges before the king and council. There the question began to appear a little more doubtful than the king had imagined; and, to bring himself off, he proposed that Goodwin and Fortescue should both be set aside, and a writ be issued by the house for a new election. Goodwin consented; and the commons embraced this expedient, but in such a manner that, while they showed their regard for the king, they secured for the future the free possession of their seats, and the right which they claimed of judging solely of their own elections and returns. Hume, who will not be suspected of prejudice against the Stuarts, and very nearly in whose words this story is related, remarks at the conclusion, "A power like this, so essential to the exercise of all their other powers, themselves so essential to public liberty, cannot fairly be deemed an encroachment in the commons, but must be regarded as an inherent privilege, happily rescued from that ambiguity which the negligence of former parliaments had thrown upon it." Smollett concludes his account of this affair with this reflection," Thus the commons secured to themselves the right of judging solely in their own elections and returns." And And my Lord Bolingbroke, whose knowledge of the constitution will not be disputed, whatever may be justly said of his religion and his morals, remarks upon this transaction of James thus, "Whether the will of the prince becomes a law independently of parliament, or whether it is made so upon every occasion by the concurrence of parliament, arbitrary power is alike established. The only difference lies here. Every degree of this power which is obtained without parliament, is obtained against the forms, as well as against the spirit of the constitution, and must, therefore, be obtained with difficulty, and possessed with danger. Whereas, in the other method of obtaining and exercising this power, by and with parliament, if it can be obtained at all, the progress is easy and short, and the possession of it so far from being dangerous, that liberty is disarmed as well as oppressed by this method; that part of the constitution, (namely, the house of commons,) which was instituted to oppose the encroachments of the crown, the maladministration of men in power, and every other grievance, being influenced to abet these encroachments, to support this maladministration, and even to concur in imposing the griev

Now, if we compare the attempt of King James with the attempt of the governor, who can discern a difference between them? James would have vacated the seat of Sir Francis Goodwin, because his election was against law; that is, because Sir Francis was an outlaw. The governor would have vacated the seats of Colonel Gerrish and Captain Little, because their election was against law, that is, because they were both chosen and returned by a town which by law was to choose and return but one. The king in one case, the governor in the other, made himself judge of the legality of an election, and usurped authority to vacate the seats of members. I consider the power of the chancellor here, which the king contended for, as the power of the king; because there is no great difference in such cases, as has been very well known from the time of James to this day, between the power of the creator and that of the creature. And I say, vacate the seats, because an exception from the dedimus is an absolute annihilation of a gentleman's seat; because by charter no man can vote or act as a representative till he has taken the oaths. It is as entire an exclusion from the house as an expulsion would be.

We will now, if you please, throw together a few reflections upon the soothing, amazing, melting solution of this arduous difficulty with which Philanthrop has entertained the public.

He begins with an instruction to the governor from his majesty not to consent to the division of towns. There has often been conversation during the administration of several late governors, concerning such a royal instruction, which, for any thing I know, may be a good one; but let it be good or evil, or whether there is any such or not, it has been found in experience, that when the division of a town would make way for the election of a friend, this instruction has been no impediment; and I need not go further than Concord and Newbury for two examples of this. Though I must go as far as the celebrated Berkshire for an instance of another member and favorite chosen and returned as expressly against the instruction and law of the province, and knowingly suffered by the governor to be sworn, without any exception in the dedimus, and to vote for the council; and finally left to the house, without any exception, caveat, message, or hint, to judge of their privilege, and vacate his seat. But to return to the instruction, is it a command to the governor to

take upon himself to judge of the legality or illegality of the choice, returns, or qualifications of the members of the house? No man will pretend this, or dare throw such an infamous affront upon his majesty or his ministers, who perfectly know that even his majesty himself has no right or authority whatever to judge in this matter; and that for the king himself to attempt to judge of the elections, returns, or qualifications of the members of the house of commons, or of the house of representatives, would be an invasion of their privilege as really, as for them to coin money, or issue commissions in the militia, would be an encroachment on the royal prerogative. If Newbury had sent ten, and Boston forty, members, has the common law, or any act of parliament, or any law of the province, or this, his majesty's instruction, made the governor the judge, that those towns have not a right by law to send so many? The only question is, who shall judge? Is it the purport of that instruction, that the governor should except the forty and the ten out of the dedimus? Would it not be as much as the king would expect of the governor, if he should give the dedimus in the usual form, that is, to swear all the members, and leave it to the house to

judge who the members were? And if the governor really supposed, as Philanthrop says he did, that the house would be jealous of the honor of their own laws, why should he have taken that jealousy away from them? Why did he not leave it to them to vindicate their own cause? If he had known any facts in this case, of which the house was not apprized, it would have been friendly and constitutional in him to have hinted it privately to some member of the house, that he might have moved it there. But there was no pretence of this, the case of Newbury being as well known to the house as to the governor. Or if he must have inserted himself in the business publicly, he might have sent the necessary information to the house in a message, recommending it to their consideration, not giving his own opinion, for this would have been an infraction of their privilege, because they are the sole judges in the matter, and ought not to be under the influence even of a message from his Excellency, expressing his opinion, in deciding so very delicate a point as elections and returns, a point on which all the people's liberties depend. Five members chosen and returned by Boston would be an illegal election; but how

should the governor come by his knowledge, that Boston had chosen and returned five? How should the precepts and returns come into his hands? It is no part of his excellency's duty to examine the returns which are made to the sheriff, and lodged in the secretary's office. There can be no objection to his looking over them to satisfy his curiosity; but to judge of them belongs wholly to another department. Suppose him to have inspected them, and found five returned for Boston; would not this be as manifestly against the spirit of the instruction, and the standing law of the province, as the case of Newbury? And what pretence would he have to judge of this illegal election, any more than of any other? Suppose, for instance, it was proved to his excellency, that twenty members returned were chosen by corruption, that is, had purchased the votes of the electors by bribery; or let it be proved that any members had taken Rhode Island or New Hampshire bills, were outlaws, or chosen by a few inhabitants of their towns without any legal meeting, these would be equally illegal elections, equally against the instructions and the law of the land; but shall the governor judge of these things, and vacate all such seats, by refusing them their oaths? Let it be suggested that a member is an infant, an idiot, a woman in man's clothing, a leper, a petit-maitre, an enemy to government, a friend to the governor's enemies, a turbulent destroyer of the public peace, an envious, malicious pretender to patriotism, any one of these or a thousand other pretences, if the governor is once allowed to judge of the legality or illegality of elections and returns, or of the qualifications or disqualifications of members, may soon be made sufficient to exclude any or all whom the governor dislikes. The supposition that Boston should send forty, and all the other towns ten, is possible; but it is not less improbable than that the governor, and all others in authority, should be suddenly seized with a delirium, negative every counsellor chosen, dissolve the house, call another, dissolve that, command all the militia to muster and march to the frontiers, and a thousand other raving facts; and all that can be said is, that when such cases shall happen, the government will be dissolved, and individuals must scramble as well as they can for themselves, there being no resource in the positive constitution for such wild cases. But surely, a negative, a right of exception in the dedimus, would be of no