Letters of Junius/Letter XVII

by Junius

LETTER XVII.

TO THE PRINTER OF THE PUBLIC ADVERTISER.

1. August, 1769.

SIR,

IT will not be necessary for Junius to take the trouble of answering your correspondent G. A. or the quotation from a speech without doors, published in your paper of the 28th of last month. The speech appeared before Junius's letter; and, as the author seems to consider the great proposition on which all his argument depends, viz. that Mr, Wilkes was under that known legal incapacity, of which Junius speaks as a point granted, his speech is, in no shape, an answer to Junius, for this is the very question in debate.

As to G. A. I observe first, that if he did not admit Junius's state of the question, he should have shown the fallacy of it, or given us a more exact one;—secondly, that, considering the many hours and days, which the ministry and their advocates have wasted, in public debate, in compiling large quartos, and collecting innumerable precedents, expressly to prove that the late proceedings of the house of commons are warranted by the law, custom, and practice of parliament, it is rather an extraordinary supposition, to be made by one of their own party even for the sake of argument, that no such statute, no such custom of parliament, no such case in point can be produced. G. A. may however, make the supposition with safety. It contains nothing, but literally the fact, except that there is a case exactly in point, with a decision of the house, diametrically opposite to that which the present house of commons came to in favour of Mr. Luttrell.

The ministry now begin to be ashamed of the weakness of their cause; and, as it usually happens with falsehood, are driven to the necessity of shifting their ground, and changing their whole defence. At first we were told that nothing could be clearer than that the proceedings of the house of commons were justified by the known law and uniform custom of parliament. But now it seems, if there be no law, the house of commons have a right to make one; and if there be no precedent, they have a right to create the first;—for this, I presume, is the amount of the questions proposed to Junius. If your correspondent had been at all versed in the law of parliament, or generally in the laws of this country, he would have seen that this defence is as weak and false as the former.

The privileges of either house of parliament, it is true, are indefinite, that is, they have not been described or laid down in any one code or declaration whatsoever; but, whenever a question of privilege has arisen, it has invariably been disputed or maintained upon the footing of precedents alone^[1]. In the course of the proceedings upon the Aylesbury election, the house of lords resolved, "That neither house of parliament had any power, by any vote or declaration, to create to themselves any new privilege, that was not warranted by the known laws and customs of parliament." And to this rule, the house of commons, though otherwise they had acted in a very arbitrary manner, gave their assent, for they affirmed that they had guided themselves by it, in asserting their privileges.—Now, Sir, if this be true with respect to matters of privilege, in which the house of commons, individually and as a body, are principally concerned, how much more strongly will it hold against any pretended power in that house, to create or declare a new law, by which not only the rights of the house over their own member, and those of the member himself are concluded, but also those of a third and separate party; I mean the freeholders of the kingdom. To do justice to the ministry, they have not yet pretended that any one, or any two, of the three estates, have power to make a new law, without the concurrence of the third. They know that a man who maintains such a doctrine, is liable, by statute, to the heaviest penalties. They do not acknowledge that the house of commons have assumed a new privilege, or declared a new law.—On the contrary, they affirm that their proceedings have been strictly conformable to, and founded upon the ancient law and custom of parliament. Thus, therefore, the question returns to the point at which Junius had fixed it, viz. Whether or no this be the law of parliament. If it be not, the house of commons bad no legal authority to establish the precedent; and the precedent itself is a mere fact, without any proof of right whatsoever.

Your correspondent concludes with a question of the simplest nature: Must a thing be wrong because it has never been done before? No. But, admitting it were proper to be done, that alone does not convey an authority to do it. As to the present case, I hope I shall never see the time, when not only a single person, but a whole county, and, in effect, the entire collective body of the people, may again be robbed of their birth-right by a vote of the house of commons. But if, for reasons which I am unable to comprehend, it be necessary to trust that house with a power so exorbitant and so unconstitutional, at least let it be, given them by an act of the legislature.

PHILO JUNIUS.

1. This is still meeting the ministry upon their own ground; for, in truth, no precedents will support either natural injustice, or violation of positive right.