10

VINDICATION OF

[CHAP. I. one of those flippant productions, which the present ministers of the Crown, by their writers, vilify the people, if said empty paper did not affect to call itself the speech of the Chancellor. That we could wish the composition had confined itself to us, and had not spread its foul contents among the Common Council of Dublin, and the citizens in general, on behalf of their privileges legally assembled. We are sorry to have given any one an occasion to aggravate their present situation, and to overwhelm with a torrent of abuse, men already struggling under great wrong.

We cannot avoid expressing our disapprobation of such a malapert way of addressing the people, a disregard for whom, under any Government, is unwise,-under a free Government, graceless,—and in a minister, disqualification to hold the reins of power. We have not forgotten the gross language once before offered to the people-it was when they defended their country against the famous propositions. We flattered ourselves that we should never again be witness to the like froward discourse. The citizens, however, will bear with patience an evil it seems they only share in common with the rest of their fellow subjects: as for ourselves, observations falling from no superior height of public virtue, make no impression.

The author of the publication asserts, that the act of council to which our resolution of the former meeting refers, was strictly legal; but it is not in a free country that the assertion of any one man can decide. Had assertion been sufficient, there was not wanting prompt and flippant assertion against all your exertions. You had the assertion of great law officers against your declaration of right-you had their assertion in favour of the famous propositionsand you had their assertion that the King legislated in Ireland, as King of Great Britain, and that the British Parliament could make, for certain purposes, a statute Regent for Ireland, and that a Regent so made, could supersede the one appointed by your own Parliament. This nation paid but little regard to such assertions; and whatever she has acquired in constitution and consideration, is due to her wisdom in holding such assertions, and the assertions thereof, as men fallible and suspicious.

The author of the paper is made to declare, that the rejecting of Alderman Howison, and the approving Alderman James, was a necessary act of public duty. Here we

are concerned to be obliged directly to contradict the author. It was not a necessary act of public duty, it was not necessary, however proper at that particular time, to approve of either, for the parties might have been sent back to a new election; but if approbation of either was unavoidable, it was not necessary to give the preference in favour of Alderman James, who could not serve, and to reject Alderman Howison, who was legally elected.

To prove the truth of this part of the speech, three things are indispensable, none of which are fact:-1st, That the parties could not have been sent back to a new election; 2nd, That the Council could not by law approve of Alderman Howison. 3d, That they could not by law refuse Alderman James.

On the first great part of the defence, we must then observe, that it is not founded in fact; that it advances the plea of necessity, which notoriously did not exist, and that the resorting to such a plea, bespeaks in the author, a secret conviction, that such a proceeding can be excused by nothing else but the plea of necessity. From a misrepresentation of the fact, in the outset of the defence, the author of the speech proceeds to promise, that he will prove his point to the conviction of mankind-the most unlettered man. But first, he stops to reflect on the peers; and the author of the speech condemns two noble lords,* for expressing their sentiments on a point of right, which may afterwards come before them as judges. Their lordships, however, if they wished to shelter themselves under authority, have it, and on this very point, in the person of the Lord Chancellor, who did declare in the presence of the parties and the public, his law opinion very early on this very question, of which opinion the public were, by himself and his friends, fully possessed, and the public is much deceived, if his early and erroneous opinion on this subject has not been the principal cause of the disgrace of the Government and the ferment of the city. The noble lords will not, however, shelter themselves under his authority; they conceive that however improper to declare an early opinion in case of private property, yet where privileges are violated, where corporate rights are attacked, it is not unbecoming the peers of the realm to take an early part, and to consider themselves not merely as hereditary judges, but (what they value more infinitely) as hereditary free* Lord Moira and Lord Charlemont.

12

VINDICATION OF

[CHAP. I. men-bound by interest-bound by affection-and now, by the offences of his Majesty's ministers and their contumely, bound more than ever to make common cause with their countrymen; they should have thought they betrayed the liberties of their country, if they had waited for three years, the term idly prescribed to the citizens to amuse themselves in the courts of justice; and we say for ourselves, without presuming to dictate to others, that whenever the ministers of the Crown shall, as in the present case, attack the rights of the people, we shall always be forthcoming-uniting with our fellow subjects in common defence and common danger.

*

The author of the speech proceeds to give the public, on the present question, historic information, and informs us, that the right of electing the Lord Mayor was vested, by bye-laws, in the board of Aldermen solely. We know it; and we further know, and from this admission are instructed to collect, that the Commons were, by force of those bye-laws, ousted of that share in the election of the Lord Mayor which they had before under charters; and it is an addition to the case of the Commons, that they now desire nothing but what they have already, by express Act of Parliament, and until ousted, as is now confessed, by force of bye-laws, had originally by charter.

The author of the speech informs us, that it was by the new rules,† the Lord Lieutenant and Council got the right of approbation, but he adds, that they got no judicial power; however, we cannot forget on a late occasion, that they displayed some things much resembling the exercise of a judicial power, when the Chancellor limited the lawyers to speak to the abstract point of law, and when the books of the corporation were sent for and examined, and the corporators interrogated, touching their tests and engagements; however, it is not for us to reconcile this parade and judicial authority, with the opinion of the author of the speech denying the Council any judicial power; it is sufficient to say, that the observation has nothing to do with the question. The question not being whether the Lord Lieutenant and Council have given an erroneous judgment, but whether they have not committed an arbitrary and illegal act.

The author of the speech now approaches the point, Expressions of the Chancellor in giving his decision.、 + Passed in the time of Charles II.

*

CHAP. I.]

THE WHIG CLUB.

13

and states, that the Council has not only no judicial power, but no power to judge of the legality of the election. Here again we find it impossible to reconcile the opinion of the author with the proceedings of the Council; for the Council, and the Chancellor in particular, as a member of that Council, did examine publicly, and in the presence of the parties, into the merits of the election, and the conduct of the ballot, and limited the lawyers to the abstract point of law, and interrogated the common councilmen, and explored the books and minutes of the corporations and common council, and inquired into the tests taken by the different corporations, or said to be taken against electing of police magistrates; all which was, as we conceive, inquiring into facts, and an insistance on matter which could relate to nothing but the legality of the election, of which the author now asserts the Council had no authority to judge.

The author of the speech proceeds, and explains what power the Council have, and states it to be a power to approve of the man who has, prima facie, the best title. Now the only title any man can have is legal election, and the only way of judging who has, prima facie, the best title, is to exercise some degree of judgment on the legality of his election; unless the author of the speech would say that the Lord Lieutenant and Council had decided that Alderman James had the best prima facie title, without exercising in fact any judgment whatever on the subject. Thus does the author stand in flat contradiction to himself, and thus does he impeach all those proceedings which he affects to defend. We might well agree with the author, that the council have only a power to return who, prima facie, has the best title; we might add, they are obliged so to do; and we complain that they rejected that Alderman, who, prima facie, was elected, and approved of that Alderman, who, prima fucie, was rejected, and decided not only against the right, but the colourable title, in favour of the man who had neither.

We have not forgotten, that the Chancellor declared, to the lawyers," 'tis true, on a superficial reading of the Act of Parliament, the words will bear out the construction of the Commons."

The author proceeds, and explains still further the powers of the council, and says that the council is confined to a single object, and professing to exemplify a single

14

VINDICATION OF

[CHAP. I. object, he states two. The first he states is disaffection; the other personal disability. Personal disability is legal incapacity-disaffection a wicked perversion of mindgood cause for a complete exclusion from office, but which can work no legal incapacity, until brought into action. Thus the author either confounds legal disability with disaffection, or he asserts, that the Lord Lieutenant and Council have a power to inquire into the question of legal disability, which relates merely to those merits, and that right, that the same author has just alleged belonged exclusively to another judicature, the courts of law.

The author has stated, that the council derive their power under the new rules, and the new rules are conceived in the words of the 33d of Geo. II. under which the common council derives its power. The author states disaffection to be the single object for the inquiry of the Privy Council; it remained for him to prove disaffection to be merely a law question, of corporate incapacity, or to allow that the common council was not confined to that law question, by the Act of Parliament; and so give up the opinion advanced by the Chancellor. The author seems aware of the difficulty, and he therefore enumerates two distinct objects, disaffection and legal incapacity as one and the same, committing a solecism in terms, to secure a studied confusion in sense.

The speech informs us, that in a double return, to approve of one, has always been a matter of course; here we are again sorry to be obliged directly to contradict the author of the speech; it has not been a matter of courseit has been common to approve of neither-it has been common to send back the parties to a new election-it was the case in 1763-it was the case twice this very year. But even though the author of the speech should not have been wrong, as he is, in point of fact, yet he would remain wrong in point of argument. To make out his defence, it is not sufficient to prove it a matter of course to approve of one of the parties; he must show it to be a matter of indifference which, whether the man who is legally elected, or the man who is by law disqualified; or rather, indeed, he must go farther for a precedent, and show it to be a matter of course to approve of the latter, that is, the man disqualified by law.

The author of the speech informs us, that the Council cannot decide the point of law-we acknowledge it, but