As to G. A. I observe first, that if he did not admit of JUNIUS's state of the question, he should have shewn the fallacy of it, or given us a more exact one; secondly, that, considering the many hours and days, which the ministry and "Now the principle upon which I voted was this, that in all cases of election by a majority of votes, wherever the candidate for whom the most votes are given, appears to have been, at the time of the election, under a known legal incapacity, the person who had the next greatest number of votes ought to be considered as the person duly elected. And this, as a general principle, I take to be altogether uncontrovertible. We may differ in our ways of expressing the principle, or of explaining the grounds of it: some chusing to state it, that the electors voting for such incapable person, do, for that time, forfeit their right of voting; others, that their votes are thrown away; and others, that votes for a person not legally capable, are not legal votes. But in whatever way we assign the ground of the rule, the result and conclusion is still the same, that, in every such case, the election of the capable person by the inferior number of votes, is a good and valid election. "Nor is this rule, founded as it is in sound sense and public necessity, to be put out of countenance by a little ingenious sophistry, playing upon the ambiguity of certain undefined terms, taunting us with the reproach of elections by a minority, of inverting the rules of arithmetic, and the like. Not even the sacredness of the rights of the electors can stand against its authority; for sacred as those rights ought ever to be held, the exercise of them, as well as of all the other rights of individuals, must ever be confined within such bounds, and governed by such rules, as are consistent with the attainment of the great public ends for which they were established. But could any thing be more preposterous than if, while you are securing to individuals the right they have to take part in determining who shall be appointed to discharge the several public offices and trusts, no care should be taken that the public, in all events, may be secure of having any persons appointed at all? Yet to this inconvenience, the public must be perpetually exposed, if the rule were to be strictly and invariably followed, that nothing but a majority of the electors could ever make a good election. That a majority of the whole number intitled to have voice in the election, is not necessary, will be readily admitted; for at that rate, the absence of one half of the electors might defeat the possibility of any election at all. Neither is it necessary, in order to a candidate's being duly elected, that he should have the votes of more than one half of the electors present; since, if it were, diversity of inclinations among the electors, and the putting up of three candidates, might as completely frustrate all possibility of supplying the vacancy, as the absence of one half of the electors would in the former case. Accordingly, therefore, we constantly see, that wherever there are more than two candidates for one vacancy, the election is determined, not so properly by a majority, as by a plurality of voices; and the candidate, who has more voices than any one of his competitors, although 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. though fewer than one half of the electors present, is always determined to be well and duly elected; there being indeed no other method allowed by the constitution, of voting against one candidate, but by voting for another; nor any liberty of declaring whom I would prefer in the second place, in case my first vote should prove ineffectual; either of which allowances might prevent any election being made. "Thus far then we are guarded against the public service being disappointed, either by the remissness of the electors in absenting themselves from the election, or by such a diversity of opinions among the electors present, as though innocent in itself, would yet be of fatal consequence to the public, should it be suffered to operate so far as to prevent any effectual election from taking place. But much in vain have these rules been established, if it is still to be in the power of the same number of electors, by a little management, to effect the same purpose, and put an effectual bar to all possibility of a valid election. Had they, by staying away, declared that they would take no part in supplying the vacancy, their fellow electors, who chose to exercise their franchise, and upon whom, in that case, the complete right would have devolved, might have exercised their right accordingly, and the public service would have been provided for. But shall they be allowed to come, and by declaring that they will vote against one candidate, but for no other, or by voting for a person whom they know to be incapable of holding the office, as truly, to all intents and purposes, deprive their fellows of their right, and the public of its due, as if, instead of coming, they had only sent a prohibition of proceeding to any election till it should be their good pleasure to suffer one? Against such a mockery of the public authority common sense reclaims, and has therefore provided against this abuse, by pointing out this farther qualification of the rule by which elections are to be decided. That, as the electors who give no vote at all, have no power of excluding any candidate for whom other electors do vote, so those who give their votes for a person whom they know to be by law incapable, are to be considered exactly on the same footing as if they gave no votes at all? Not to give any vote, to declare I vote for nobody, or to vote for the Great Mogul, must undoubtedly have the same effect. "Thus 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 when "Thus then it appeared to me, that the general rule, that in case of a known legal incapacity in the person having the majority of voices, the capable person next upon the poll, although chosen by a minority, is duly elected, is consonant to reason, is the dictate of common sense. "That it had also the sanction of authority, I was as clearly convinced. The practice of the courts of law, in such cases, seems not to be disputed; they have, by repeated decisions, established the principle. "Upon these grounds, therefore, both of reason and authority, I not only thought myself fully justified in giving my vote, that Mr. Luttrell was duly elected, but in truth I could not think myself at liberty to vote otherwise, being convinced, that as, on the one hand, by so voting I should do no wrong to the 1143 freeholders of Middlesex, who, for the chance of being able to overbear the authority of the House of Commons, which had adjudged Mr. Wilkes to be incapable, had chosen to forego their right of taking part in the nomination of a capable person in his room; so, by a contrary decision, I should have done a most manifest injustice to Mr. Luttrell, and to the 296 freeholders who voted for him; and who, in failure of a nomination by an equal number of freeholders of any other capable candidate, had, upon every principle of reason, and every rule of law, as well as according to the uniform usage of parliament, conferred upon him a clear title to sit as one of the representatives for the county of Middlesex." EDIT. ever a question of privilege has arisen, it has invariably been disputed or maintained upon the footing of precedents alone*. 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 had no legal authority to establish the precedent; and the precedent itself is a mere fact, without any proof of right what soever. Your correspondent concludes with a question of the simplest nature: Must a thing be wrong, because it has never • 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. 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 birthright 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 to them by an act of the legislature. PHILO JUNIUS. LETTER XVIII. TO DR. WILLIAM BLACKSTONE, SOLICITOR GENERAL TO HER SIR, MAJESTY. 29 July, 1769. I SHALL make you no apology for considering a certain pamphlet, in which your late conduct is defended, as written by yourself*. The personal interest, the personal resentments, and above all, that wounded spirit, unaccustomed to reproach, and I hope not frequently conscious of deserving * This was at last admitted by the friends of the Solicitor General. The pamphlet was entitled, "An answer to the question stated;" and was a reply to a pamphlet from Sir William Meredith, one of the most active members of parliament of the Whig party, entitled, "The question stated," in reference to the adjudication of Wilkes's incapacity to sit in parliament after his last election; in the course of which also, the inconsistency of opinion between that delivered by the Solicitor General in his Commentaries, and that on the point in question was severely animadverted upon. The press was overwhelmed with tracts on this dispute from both sides, Of these, the chief, independently of Sir William Meredith's, and the reply to it by Sir William Blackstone, were "The case of the last election for the county of Middlesex considered," attributed to Mr. Dyson, who was nicknamed, by his opponents, Mungo: "Serious Considerations;" "Mungo on the use of Quotations;" "Mungo's case considered;" "Letter to JUNIUS;" "Postscript to JUNIUS," published in a subsequent edition to Sir William Blackstone's reply, and "The False Alarm," written by Doctor Johnson. Of all these some incidental notice is taken in the course of the volumes before us. EDIT. |