LETTER XIX.
ADDRESSED TO THE PRINTER OF THE PUBLIC ADVERTISER.
SIR,
A CORRESPONDENT of the St. James's Evening Post first wilfully misunderstands Junius, then censures him for a bad reasoner. Junius does not say that it was incumbent upon Doctor Blackstone to foresee and state the crimes, for which Mr. Wilkes was expelled. If, by a spirit of prophecy, he had even done so, it would have been nothing to the purpose. The question is, not for what particular offences a person may be expelled, but generally whether by the law of parliament expulsion alone creates a disqualification. If the affirmative be the law of parliament, Doctor Blackstone might and should have told us so. The question is not confined to this or that particular person, but forms one great general branch of disqualification, too important in itself, and too extensive in its consequences, to be omitted in an accurate work expressly treating of the law of parliament.
The truth of the matter is evidently this. Doctor Blackstone, while he was speaking in the house of commons, never once thought of his Commentaries, until the contradiction was unexpectedly urged, and stared him in the face. Instead of defending himself upon the spot, he sunk under the charge, in an agony of confusion and despair. It is well known that there was a pause of some minutes in the house, from a general expectation that the Doctor would say something in his own defence; but it seems, his faculties were too much overpowered to think of those subtleties and refinements, which have since occurred to him. It was then Mr. Grenville received that severe chastisement which the Doctor mentions with so much triumph. I wish the honourable gentleman, instead of shaking his head, would shake a good argument out of it. If to the elegance, novelty, and bitterness, of this ingenious sarcasm, we add the natural melody of the amiable Sir Fletcher Norton's pipe, we shall not be surprised that Mr. Grenville was unable to make him any reply.
As to the Doctor, I would recommend it to him to be quiet. If not, he may, perhaps, hear, again from Junius himself.
Since these papers were sent to the press, a writer in the public papers, who subscribes himself Junius, has made a feint of bringing this question to a short issue. Though the foregoing observations contain, in my opinion, at least, a full refutation of all that this writer has offered, I shall, however, bestow a very few words upon him. It will cost me very little trouble to unravel and expose the sophistry of his argument,
'I take the question, says he, 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.'
Waving, for the present, any objection I may have to this state of the question, I shall venture to meet our champion upon his own ground; and attempt to support the affirmative of it, in one of the two ways, by which he says it can be alone fairly supported. 'If there be no statute, says he, in which the specific disability is clearly created, &c. (and we acknowledge there is none) the custom of Parliament must then be referred to; and some case or cases, strictly in point, must be produced, with the decision of the court upon them.' Now, I assert, that this has been done. Mr. Walpole's case is strictly in point, to prove that expulsion creates absolute incapacity of being re-elected. This was the clear decision of the House upon it; and was a full declaration, that incapacity was the necessary consequence of expulsion. The law was as clearly and firmly fixed by this resolution, and is as binding in every subsequent case of expulsion, as if it had been declared by an express statute,"That a member, expelled by a resolution of the house of commons, shall be deemed incapable of being re-elected." Whatever doubt then there might have been of the law, before Mr. Walpole's case, with respect to the full operation of a vote of expulsion, there can be none now. The decision of the House, upon this case is strictly in point to prove, that expulsion creates absolute incapacity in law of being re-elected.
But incapacity in law, in this instance, must have the same operation and effect with incapacity in law in every other instance. Now, incapacity of being re-elected implies in its very terms, that any votes given to the incapable person, at a subsequent election, are null and void. This is its necessary operation, or it has no operation at all: It is vox et praeterea nihil. We can no more be called upon to prove this proposition, than we can to prove that a dead man is not alive; or, that twice two are four. When the terms are understood, the proposition is self-evident.
Lastly, It is, in all cases of election, the known and established law of the land, grounded upon the clearest principles of reason and common sense, that if the votes given to one candidate are null and void, they cannot be opposed to the votes given to another candidate; they cannot affect the votes of such candidate at all. As they have, on the one hand, no positive quality to add or establish, so have they, on the other hand, no negative one to subtract or destroy. They are, in a word, a mere non-entity. Such was the determination of the House of Commons in the Malden and Bedford elections; cases strictly in point to the present question, as far as they are meant to be in point. And to say that they are not in point in all circumstances, in those particularly which are independent of the proposition which they are quoted to prove, is to say no more than that Malden is not Middlesex, nor Serjeant Comyns Mr. Wilkes.
Let us see then how our proof stands. Expulsion creates incapacity, incapacity annihilates any votes given to the incapable person. The votes given to the qualified candidate stand upon their own bottom, firm, and untouched, and can alone have effect. This, one would think, would be sufficient. But we are stopped short, and told, that none of our precedents come home to the present case; and are challenged to produce, "a precedent in all the proceedings of the house of commons that does come home to it, viz. where an expelled member has been returned again, and another candidate, with an inferior number of votes, has been declared the sitting member."
Instead of a precedent, I will beg leave to put a case; which, I fancy, will be quite as decisive to the present point. Suppose another Sacheverel (and every party must have its Sacheverel) should, at some future election, take it into his head to offer himself a candidate for the county of Middlesex. He is opposed by a candidate whose coat is of a different colour; but however of a very good colour. The divine has an indisputable majority; nay, the poor layman is absolutely distanced. The sheriff, after having had his conscience well informed by the reverend casuist, returns him, as he supposes, duly elected. The whole house is in an uproar, at the apprehension of so strange an appearance amongst them. A motion, however, is at length made, that the person was incapable of being elected, that his election therefore is null and void, and that his competitor ought to have been returned. No, says a great orator; First, shew me your law for this proceeding. "Either produce me a statute, in which the specific disability of a clergyman is created; or produce me a precedent, where a clergyman has been returned, and another candidate, with an inferior number of votes, has been declared the sitting member." No such statute, no such precedent to be found. What answer then is to be given to this demand? The very same answer which I will give to that of Junius. That there is more than one precedent in the proceedings of the house—"where an incapable person has been returned, and another candidate, with an inferior number of votes, has been declared the sitting member; and that this is the known and established law, in all cases of incapacity, from whatever cause it may arise."
I shall now therefore beg leave to make a slight amendment to Junius's state of the question, the affirmative of which will then stand thus:
"It is the known and established law of parliament, that the expulsion of any member of the house of commons creates in him an incapacity of being re-elected; that any votes given to him at a subsequent election are, in consequence of such incapacity, null and void; and that any other candidate, who, except the person rendered incapable, has the greatest number of votes, ought to be the sitting member."
But our business is not yet quite finished. Mr. Walpole's case must have a re-hearing, "It is not possible, says this writer, 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 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."
Instead of examining the justness of this representation, I shall beg leave to oppose against it my own view of the case, in as plain a manner and as few words as I am able.
It was the known and established law of parliament, when the charge against Mr. Walpole came before the house of commons, that they had power to expel, to disable, and to render incapable for offences. In virtue of this power they expelled him.
Had they, in the very vote of expulsion, adjudged him, in terms, to be incapable of being re-elected, there must have been at once an end with him. But though the right of the house, both to expel, and adjudge incapable, was clear and indubitable, it does not appear to me, that the full operation and effect of a vote of expulsion singly was so. The law in this case had never been expressly declared. There had been no event to call up such a declaration. I trouble not myself with the grammatical meaning of the word expulsion. I regard only its legal meaning. This was not, as I think, precisely fixed. The house thought proper to fix it, and explicitly to declare the full consequences of their former vote, before they suffered these consequences to take effect. And in this proceeding they acted upon the most liberal and solid principles of equity, justice, and law. What then did the burgesses of Lynn collect from the second vote? Their subsequent conduct will tell us: it will with certainty tell us, that they considered it as decisive against Mr. Walpole; it will also, with equal certainty, tell us, that, upon supposition that the law of election stood then as it does now, and that they knew it to stand thus, they inferred, "that, at a future election, and in case of a similar return, the house would receive the same candidate, as duly elected, whom they had before rejected." They could infer nothing but this.
It is needless to repeat the circumstance of dissimilarity in the present case. It will be sufficient to observe, that, as the law of parliament, upon which the house of commons grounded every step of their proceedings, was clear beyond the reach of doubt, so neither could the freeholders of Middlesex be at a loss to foresee what must be the inevitable consequence of their proceedings in opposition to it. For, upon every return of Mr. Wilkes, the house made enquiry whether any votes were given to any other candidate? But I could venture, for the experiment's sake, even to give this writer the utmost he asks; to allow the most perfect similarity throughout, in these two cases; to allow that the law of expulsion was quite as clear to the burgesses of Lynn as to the freeholders of Middlesex. It will, I am confident, avail his cause but little. It will only prove, that the law of election at that time was different from the present law. It will prove, that, in all cases of an incapable candidate returned, the law then was, that the whole election should be void. But now we know that this is not law. The cases of Malden and Bedford were, as has been seen, determined upon other and more just principles. And these determinations are, I imagine, admitted on all sides to be law.
I would willingly draw a veil over the remaining part of this paper. It is astonishing, it is painful, to see men of parts and ability, giving in to the most unworthy artifices, and descending so much below their true line of character. But, if they are not the dupes of their sophistry, (which is hardly to be conceived) let them consider that they are something much worse.
The dearest interests of this country are its laws and its constitution. Against every attack upon these, there will, I hope, be always found amongst us the firmest spirit of resistance; superior to the united efforts of faction and ambition. For ambition, though it does not always take the lead of faction, will be sure in the end to make the most fatal advantage of it, and draw it to its own purposes. But, I trust, our day of trial is yet far off; and there is a fund of good sense in this country, which cannot long be deceived, by the arts either of false reasoning, or false patriotism.