Letters of Junius/Letter XLIV
TO THE PRINTER OF THE PUBLIC ADVERTISER.
22. April 1771.
SIR, TO write for profit, without taxing the press;—to write for fame and to be unknown;—to support the intrigues of faction, and to be disowned as a dangerous auxiliary, by every party in the kingdom, are contradictions which the minister must reconcile, before I forfeit my credit with the public. I may quit the service, but it would be absurd to suspect me of desertion. The reputation of these papers is an honourable pledge for my attachment to the people. To sacrifice a respected character, and to renounce the esteem of society, requires more than Mr. Wedderburne's resolution: and though, in him, it was rather a profession than a desertion of his principles, [I speak tenderly of this gentleman, for when treachery is in question, I think we should make allowances for a Scotchman] yet we have seen him in the house of commons overwhelmed with confusion, and almost bereft of his faculties.—But in truth, Sir, I have left no room for an accommodation with the piety of St. James's. My offences are not to be redeemed by recantation or repentance. On one side, our warmest patriots would disclaim me as a burthen to their honest ambition. On the other, the vilest prostitution, if Junius could descend to it, would lose its natural merit and influence in the cabinet, and treachery be no longer a recommendation to the royal favour.
The persons, who, till within these few years, have been most distinguished by their zeal for high-church and prerogative, are now, it seems, the great assertors of the privileges of the house of commons. This sudden alteration of their sentiments or language, carries with it a suspicious appearance. When I hear the undefined privileges of the popular branch of the legislature exalted by Tories and Jacobites, at the expense of those strict rights which are known to the subject and limited by the laws, I cannot but suspect, that some mischievous scheme is in agitation, to destroy both law and privilege, by opposing them to each other. They who have uniformly denied the power of the whole legislature to alter the descent of the crown, and whose ancestors, in rebellion against his Majesty's family, have defended that doctrine at the hazard of their lives, now tell us, that privilege of parliament is the only rule of right, and the chief security of the public freedom.—I fear, Sir, that, while forms remain, there has been some material change in the substance of our constitution. The opinions of these men were too absurd to be so easily renounced. Liberal minds are open to conviction.—Liberal doctrines are capable of improvement.—There are proselytes from atheism, but none from superstition.—If their present professions were sincere, I think they could not but be highly offended at seeing a question concerning parliamentary privilege unnecessarily started at a season so unfavourable to the house of commons, and by so very mean and insignificant a person as the minor Onslow. They knew that the present house of commons, having commenced hostilities with the people, and degraded the authority of the laws by their own example, were likely enough to be resisted per fas & nefas. If they were really friends to privilege, they would have thought the question of right too dangerous to be hazarded at this season, and, without the formality of a convention, would have left it undecided.
I have been silent hitherto, though not from that shameful indifference about the interests of society, which too many of us possess, and call moderation. I confess, sir, that I felt the prejudices of my education in favour of a house of commons still hanging about me. I thought that a question between law and privilege could never be brought to a formal decision without inconvenience to the public service, or a manifest diminution of legal liberty;—that it ought, therefore, to be carefully avoided: and when I saw that the violence of the house of commons had carried them too far to retreat, I determined not to deliver a hasty opinion upon a matter of so much delicacy and importance.
The state of things is much altered in this country since it was necessary to protect our representatives against the direct power of the crown. We have nothing to apprehend from prerogative, but every thing from undue influence. Formerly, it was the interest of the people that the privileges of parliament should be left unlimited and undefined. At present, it is not only their interest, but I hold it to be essentially necessary to the preservation of the constitution, that the privileges of parliament should be strictly ascertained, and confined within the narrowest bounds the nature of the institution will admit of. Upon the same principle on which I would have resisted prerogative in the last century, I now resist privilege. It is indifferent to me whether the crown, by its own immediate act, imposes new, and dispenses with old laws, or whether the same arbitrary power produces the same effects through the medium of the house of commons. We trusted our representatives with privileges for their own defence and ours. We cannot hinder their desertion, but we can prevent their carrying over their arms to the service of the enemy.—It will be said, that I begin with endeavouring to reduce the argument concerning privilege to a mere question of convenience;— that, I deny, at one moment, what I would allow at another: and that, to resist the power of a prostituted house of commons, may establish a precedent injurious to all future parliaments. To this I answer, generally, that human affairs are in no instance governed by strict positive right. If change of circumstances were to have no weight in directing our conduct and opinions, the mutual intercourse of mankind would be nothing more than a contention between positive and equitable right. Society would be a state of war, and law itself would be injustice. On this general ground, it is highly reasonable, that the degree of our submission to privileges which never have been defined by any positive law, should be considered as a question of convenience, and proportioned to the confidence we repose in the integrity of our representatives. As to the injury we may do to any future and more respectable house of commons, I own I am not now sanguine enough to expect a more plentiful harvest of parliamentary virtue in one year than in another. Our political climate is severely altered; and, without dwelling upon the depravity of modern times, I think no reasonable man will expect that, as human nature is constituted, the enormous influence of the crown should cease to prevail over the virtue of individuals. The mischief, lies too deep to be cured by any remedy less than some great convulsion, which may either carry back the constitution to its original principles, or utterly destroy it. I do not doubt that, in the first session after the next election, some popular measures may be adopted. The present house of commons have injured themselves by a too early and public profession of their principles: and if a strain of prostitution, which had no example, were within the reach of emulation, it might be imprudent to hazard the experiment too soon. But, after, all, sir, it is very immaterial whether a house of commons shall preserve their virtue for a week, a month, or a year. The influence which makes a septennial parliament dependent on the pleasure of the crown, has a permanent operation, and cannot fail of success. My premises, I know, will be denied in argument; but every man's conscience tells him they are true. It remains, then, to be considered, whether it be for the interest of the people, that privilege of parliament (which in respect to the purposes for which it has hitherto been acquiesced under, is merely nominal) should be contracted within some certain limits; or, whether the subject shall be left at the mercy of a power, arbitrary upon the face of it, and notoriously under the direction of the crown.
I do not mean to decline the question of right; On the contrary, Sir, I join issue with the advocates for privilege, and affirm, that, "excepting the cases wherein the house of commons are a court of judicature [to which, from the nature of their office, a coercive power must belong] and excepting such contempts as immediately interrupt their proceedings, they have no legal authority to imprison any man for any supposed violation of privilege whatsoever."—It is not pretended that privilege, as now claimed, has ever been defined or confirmed by statute; neither can it be said, with any colour of truth, to be a part of the common law of England, which had grown into prescription long before we knew any thing of the existence of a house of commons. As for the law of parliament, it is only another name for the privilege in question: and since the power of creating new privileges has been formally renounced by both houses,—since there is no code in which we can study the law of parliament, we have but one way left to make ourselves acquainted with it;—that is, to compare the nature of the institution of a house of commons with the facts upon record. To establish a claim of privilege in either house, and to distinguish original right from usurpation, it must appear, that it is indispensably necessary for the performance of the duty they are employed in, and also that it has been uniformly allowed. From the first part of this description, it follows, clearly, that, whatever privilege does of right belong to the present house of commons, did equally belong to the first assembly of their predecessors, was so completely vested in them, and might have been exercised in the same extent. From the second we must infer, that privileges, which for several centuries were not only never allowed, but never even claimed by the house of commons, must be founded upon usurpation. The constitutional duties of a house of commons are not very complicated nor mysterious. They are to propose or assent to wholesome laws, for the benefit of the nation. They are to grant the necessary aids to the King;—petition for the redress of grievances; and prosecute treason or high crimes against the state. If unlimited privilege be necessary to the performance of these duties, we have reason to conclude, that, for many centuries after the institution of the house of commons, they were never performed. I am not bound to prove a negative: but I appeal to the English history, when I affirm, that, with the exceptions already stated, which yet I might safely relinquish, there is no precedent, from the year 1265, to the death of Queen Elizabeth, of the house of commons having imprisoned any man (not a member of their house) for contempt or breach of privilege. In the most flagrant cases, and when their acknowledged privileges were most grossly violated, the poor Commons, as they then styled themselves, never took the power of punishment into their own hands. They either sought redress, by petition to the King, or, what is more remarkable, applied for justice to the house of lords; and, when satisfaction was denied them or delayed, their only remedy was to refuse proceeding upon the king's business. So little conception had our ancestors of the monstrous doctrines now maintained concerning privilege, that, in the reign of Elizabeth, even liberty of speech, the vital principle of a deliberative assembly, was restrained by the queen's authority to a simple aye or no: and this restriction, though imposed upon three successive parliaments, was never once disputed by the house of commons.
I know there are many precedents of arbitrary commitments for contempt; but, besides that they are of too modern a date to warrant a presumption that such a power was originally vested in the house of commons,—fact alone does not constitute right. If it does, general warrants were lawful.—An ordinance of the two houses has a force equal to law: and the criminal jurisdiction assumed by the commons in 1421, in the case of Edward Lloyd, is a good precedent to warrant the like proceedings against any man who shall unadvisedly mention the folly of a King, or the ambition of a Princess.—The truth is, Sir, that the greatest and most exceptionable part of the privileges now contended for, were introduced and asserted by a house of commons, which abolished both monarchy and peerage, and whose proceedings, although they ended in one glorious act of substantial justice, could no way be reconciled to the forms of the constitution. Their successors profited by their example, and confirmed their power by a moderate or popular use of it. Thus it grew, by degrees, from a notorious innovation at one period, to be tacitly admitted as the privilege of parliament at another.
If, however, it could be proved, from considerations of necessity or convenience, that an unlimited power of commitment ought to be entrusted to the house of commons, and that, in fact, they have exercised it without opposition, still, in contemplation of law, the presumption is strongly against them. It is a leading maxim of the laws of England (and without it all laws are nugatory) that there is no right without a remedy, nor any legal power without a legal course to carry it into effect. Let the power, now in question, be tried by this rule. The Speaker issues his warrant of attachment. The party attached either resists force with force, or appeals to a magistrate, who declares the warrant illegal, and discharges the prisoner. Does the law provide no legal means for enforcing a legal warrant? Is there no regular proceeding pointed out in our law books, to assert and vindicate the authority of so high a court as the house of commons? The question is answered directly by the fact; their unlawful commands are resisted, and they have no remedy. The imprisonment of their own members is revenge indeed: but it is no assertion of the privilege they contend for. Their whole proceeding stops; and there they stand, ashamed to retreat, and unable to advance. Sir, these ignorant men should be informed, that the execution of the laws of England is not left in this uncertain, defenceless condition. If the process of the courts of Westminster-hall be resisted, they have a direct course to enforce submission. The court of king's bench commands the sheriff to raise the posse comitatûs. the courts of chancery and exchequer issue a writ of rebellion, which must also be supported, if necessary, by the power of the country. To whom will our honest representatives direct their writ of rebellion? The guards, I doubt not, are willing enough to be employed: but they know nothing of the doctrine of writs, and may think it necessary to wait for a letter from lord Barrington.
It may now be objected to me, that my arguments prove too much: for that certainly there may be instances of contempt and insult to the house of commons, which do not fall within my own exceptions, yet, in regard to the dignity of the house, ought not to pass unpunished. Be it so.—The courts of criminal jurisdiction are open to prosecutions, which the Attorney-General may commence by information or indictment. A libel tending to asperse or vilify the house of commons, or any of their members, may be as severely punished in the court of king's bench, as a libel upon the king. M. DeGrey thought so, when he drew up the information of my letter to his majesty, or he had no meaning in charging it to be a scandalous libel upon the house of commons. In my opinion, they would consult their real dignity much better, by appealing to the laws, when they are offended, than by violating the first principle of natural justice, which forbids us to be judges, when we are parties to the cause.
I do not mean to pursue them through the remainder of their proceedings. In their first resolutions, it is possible they might have been deceived by ill-considered precedents. For the rest, there is no colour of palliation or excuse. They have advised the king to resume a power of dispensing with the laws by royal proclamation; and kings, we see, are ready enough to follow such advice. By mere violence, and without the shadow of right, they have expunged the record of a judicial proceeding. Nothing remained but to attribute to their own vote a power of stopping the whole distribution of criminal and civil justice.
The public virtues of the chief magistrate have long since ceased to be in question. But, it is said, that he has private good qualities; and I myself have been ready to acknowledge them. They are now brought to the test. If he loves his people, he will dissolve the parliament, which they can never confide in or respect.—If he has any regard for his own honour, he will disdain to be any longer connected with such abandoned prostitution. But, if it were conceivable, that a king of this country had lost all sense of personal honour, and all concern for the welfare of his subjects, I confess, sir, I should be contented to renounce the forms of the constitution once more, if there were no other way to obtain substantial justice for the people.
- The necessity of securing the house of commons against the King's power, so that no interruption might be given either to the attendance of the members in parliament, or to the freedom of debate, was the foundation of parliamentary privilege: and we may observe, in all the addresses of new appointed speakers to the sovereign, the utmost privilege they demand, is liberty of speech, and freedom from arrests. The very word privilege means no more than immunity, or a safeguard to the party who possesses it, and can never be construed into an active power of invading the rights of others.
- In the years 1593—1597—and 1601.
- Upon their own principles, they should have committed Mr. Wilkes, who had been guilty of a greater offence than even the lord mayor or alderman Oliver. But, after repeatedly ordering him to attend, they at last adjourned beyond the day appointed for his attendance, and, by this mean, pitiful evasion, gave up the point.—Such is the force of conscious guilt.
- "If it be demanded, in case a subject should be committed by either house for a matter manifestly out of their jurisdiction, What remedy can he have? I answer, that it cannot well be imagined that the law, which favours nothing more than the liberty of the subject, should give us a remedy against commitments by the king himself, appearing to be illegal, and yet give us no manner of redress against a commitment by our fellow subjects, equally appearing to be unwarranted. But, as this is a case which I am persuaded, will never happen, it seems needless over-nicely to examine it." Hawkins, 2. 110.—N. B. He was a good lawyer, but no prophet.
- That their practice might be every way conformable to their principles, the house proceeded to advise the crown to publish a proclamation, universally acknowledged to be illegal. Mr. Moreton publicly protested against it before it was issued; and lord Mansfield, though not scrupulous to an extreme, speaks of it with horror. It is remarkable enough, that the very men who advised the proclamation, and who hear it arraigned every day, both within doors and without, are not daring enough to utter one word in its defence: nor have they ventured to take the least notice of Mr. Wilkes, for the discharging the persons apprehended under it.
- Lord Chatham very properly called this the act of a mob, not of a senate.
- When Mr. Wilkes was to be punished, they made no scruple about the privileges of parliament; and although it was as well known as any matter of public record and uninterrupted custom could be, That the members of either house are privileged, except in case of treason, felony, or breach of peace, they declared, without hesitation, That privilege of parliament did not extend to the case of a seditious libel: and undoubtedly they would have done the same if Mr. Wilkes had been prosecuted for any other misdemeanour whatsoever. The ministry, are, of a sudden, grown wonderfully careful of privileges, which their predecessors were as ready to invade. The known laws of the land, the rights of the subject, the sanctity of charters, and the reverence due to our magistrates, must all give way, without question or resistance, to a privilege of which no man knows either the origin or the extent. The house of commons judge of their own privileges without appeal : they may take offence at the most innocent action, and imprison the person who offends them during their arbitrary will and pleasure. The party has no remedy; he cannot appeal from their jurisdiction: and if he questions the privilege which he is supposed to have violated, it becomes an aggravation of his offence. Surely this doctrine is not to be found in Magna Charta. If it be admitted without limitation, I affirm, that there is neither law nor liberty in this kingdom. We are the slaves of the house of commons; and, through them, we are the slaves of the king and his ministers.