Letters of Junius/Letter XVI

by Junius

LETTER XVI.

TO THE PRINTER OF THE PUBLIC ADVERTISER.

19. July, 1769.

SIR,

A GREAT deal of useless argument might have been saved, in the political contest, which has arisen from the expulsion of Mr. Wilkes, and the subsequent appointment of Mr. Luttrell, if the question had been once stated with precision, to the satisfaction of each party, and clearly understood by them both. But in this, as in almost every other dispute, it usually happens that much time is lost in referring to a multitude of cases and precedents, which prove nothing to the purpose, or in maintaining propositions, which are either not disputed, or, whether they be admitted or denied, are entirely indifferent as to the matter in debate; until at last the mind, perplexed and confounded with the endless subtleties of controversy, loses sight of the main question, and never arrives at truth. Both parties in the dispute are apt enough to practise these dishonest artifices. The man who is conscious of the weakness of his cause is interested in concealing it: and, on the other side, it is not uncommon to see a good cause mangled by advocates, who do not know the real strength of it.

I should be glad to know, for instance, to what purpose, in the present case, so many precedents have been produced to prove, that the house of commons have a right to expel one of their own members; that it belongs to them to judge of the validity of elections; or that the law of parliament is part of the law of the land^[1]? After all these propositions are admitted, Mr. Luttrell's right to his seat will continue to be just as disputable as it was before. Not one of them is at present in agitation. Let it be admitted that the house of commons were authorized to expel Mr. Wilkes; that they are the proper court to judge of elections, and that the law of parliament is binding upon the people; still it remains to be enquired, whether the House, by their resolution in favour of Mr. Luttrell; have, or have not truly declared that law. To facilitate this enquiry, I would have the question cleared of all foreign or indifferent matter. The following state of it will probably be thought a fair one by both parties; and then I imagine there is no gentleman in this country, who will not be capable of forming a judicious and true opinion upon it. I take the question to be strictly this: "Whether or no it be the known, established law of parliament, that the expulsion of a member of the House of Commons, of itself creates in him such an incapacity to be re-elected, that, at a subsequent election, any votes given to him are null and void; and that any other candidate, who, except the person expelled, has the greatest number of votes, ought to be the sitting member."

To prove that the affirmative is the law of parliament, I apprehend it is not sufficient for the present house of commons to declare it to be so. We may shut our eyes indeed to the dangerous consequences of suffering one branch of the legislature to declare new laws, without argument or example, and it may perhaps be prudent enough to submit to authority; but a mere assertion will never convince, much less will it be thought reasonable to prove the right by the fact itself. The ministry have not yet pretended to such a tyranny over our minds. To support the affirmative fairly, it will either be necessary to produce some statute, in which that positive provision shall have been made, that specific disability clearly created, and the consequences of it declared; or, if there be no such statute, the custom of parliament must then be referred to; and some case or cases^[2], strictly in point, must be produced, with the decision of the court upon them; for I readily admit, that the custom of parliament, once clearly proved, is equally binding with the common and statute law.

The consideration of what may be reasonable, or unreasonable, makes no part of this question. We are enquiring what the law is, not what it ought to be. Reason may be applied to shew the impropriety or expedience of a law, but we must have either statute or precedent to prove the existence of it. At the same time, I do not mean to admit that the late resolution of the house of commons is defensible on general principles of reason, any more than in law. This is not the hinge on which the debate turns.

Supposing, therefore, that I have laid down an accurate state of the question, I will venture to affirm, 1st, That there is no statute existing, by which that specific disability which we speak of, is created. If there be, let it be produced. The argument will then be at an end.

2dly, That there is no precedent, in all the proceedings of the house of commons, which comes entirely home to the present case, viz. "where an expelled member has been returned again, and another candidate, with an inferior number of votes, has been declared the sitting member." If there be such a precedent, let it be given to us plainly and I am sure it will have more weight than all the cunning arguments which have been drawn from inferences and probabilities.

The Ministry, in that laborious pamphlet, which I presume contains the whole strength of the party, have declared^[3], "That Mr. Walpole's was the first and only instance in which the electors of any county or borough had returned a person expelled to serve in the same parliament." It is not possible to conceive a case more exactly in point. Mr. Walpole was expelled, and, having a majority of votes at the next election, was returned again. The friends of Mr. Taylor, a candidate set up by the ministry, petitioned the House that he might be the sitting member. Thus far the circumstances tally exactly, except that our House of Commons saved Mr. Luttrell the trouble of petitioning. The point of the law, however, was the same. It came regularly before the House, and it was their business to determine upon it. They did determine it; for they declared Mr. Taylor not duly elected. If it be said that they meant this resolution as matter of favour and indulgence to the borough, which had retorted Mr. Walpole upon them, in order that the burgesses, knowing what the law was, might correct their error. I answer,

I. That it is a strange way of arguing, to oppose a supposition, which no man can prove, to a fact which proves itself.

II. That if this were the intention of the house of commons, it must have defeated itself. The burgesses of Lynn could never have known their error, much less could they have corrected it by any instruction they received from the proceedings of the house of commons. They might perhaps have foreseen, that, if they returned Mr. Walpole again, he would again be rejected; but they never could infer, from a resolution by which the candidate with the fewest votes was declared not duly elected, that, at a future election, and in similar circumstances, the house of commons would reverse their resolution, and receive the same candidate as duly elected, whom they had before rejected.

This, indeed, would have been a most extraordinary way of declaring the law of parliament, and what I presume no man, whose understanding is not at cross purposes with itself, could possibly understand.

If, in a case of this importance, I thought myself at liberty to argue from suppositions rather than from facts, I think the probability, in this instance, is directly the reverse of what the Ministry affirm; and that it is much more likely that the house of commons at that time would rather have strained a point in favour of Mr. Taylor, than that they would have violated the law of parliament, and robbed Mr. Taylor of a right legally vested in him, to gratify a refractory borough, which, in defiance of them, had returned a person branded with the strongest mark of the displeasure of the House.

But really, Sir, this way of talking, for I cannot call it argument, is a mockery of the common understanding of the nation, too gross to be endured. Our dearest interests are at stake. An attempt has been made, not merely to rob a single county of its rights, but, by inevitable consequence, to alter the constitution of the house of commons. This fatal attempt has succeeded, and stands as a precedent recorded for ever, If the ministry are unable to defend their cause by fair argument founded on facts, let them spare us at least the mortification of being amused and deluded like children. I believe there is yet a spirit of resistance in this country, which will not submit to be oppressed; but I am sure there is a fund of good sense in this country, which cannot be deceived.

JUNIUS.

1. The reader will observe, that these admissions are made, not as of truths unquestionable, but for the sake of argument, and in order to bring the real question to issue.
2. Precedents, in opposition to principles, have little weight with Junius; but he thought it necessary to meet the Ministry upon their own ground.
3. Case of the Middlesex election considered, page 38.