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LETTER,

&c.

GENTLEMEN,

THE decision which has been pronounced upon the petition against the legality of Lord Binning's qualification to represent you in Parliament, will have excited disappointment and surprise. But when you reflect upon the motives by which you were actuated, and retrace the steps you have pursued, disappointment and surprise will be lost, in the proud conviction that you have performed a duty of a high and sacred character, and that your conduct will be hailed by the approbation of every friend of liberty and independence throughout the country. A simple Statement of the Facts which have taken place, will be a sufficient demonstration that nothing has been done which an honest man would not rejoice to do again.

On the first day of the late Election, it was required by one of Lord Biuning's friends, that the several Candidates should produce their qualifications. Mr. Barnett and myself swore to landed estates in England; and Lord Binning gave in, as his qualification, that he was the eldest son of the Earl of Haddington, in Scotland. The sufficiency of this qualification was doubted, not only by myself, but by some of the most intelligent Freemen in your city. I repeatedly urged my objection in the public hall and before the poll commenced, and before I consented to its being closed, I stated to the returning Officer, that I reserved the point for future discussion, and by no means relinquished the rights

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which might belong to me, if it should be found that Mr. Barnett and myself were the only Candidates legally qualified. Not only the Mayor, but Lord Binning himself, acquiesced in this reservation; and the numbers being in favor of his Lordship and Mr. Barnett, they were returned as duly elected.

A few days after the close of the Election, I took the opinion of Mr. Harrison on the question, whether the eldest son of a Peer of that part of Great Britain called Scotland, was entitled to represent an English county, city, or borough, without possessing a landed property in England. The opinion of this eminent parliamentary Lawyer was given in the following words :

"I cannot find, after a very diligent search in the Journals, as well as in other books, that this point has ever been raised. And the Cases and Dictum in Hatsell's Note do not affect the question. Scotland stands upon a different footing from Ireland, with respect to qualifications. The Scotch and English laws were not made interchangeably similar, as was done by the 41 Geo. III. with respect to Ireland and England: And in consequence, landed property in Scotland gives no qualification for an English or Irish county or borough. See 9 Anne, c. 5 And the Members for Scotch counties and boroughs are not obliged to give in or swear to any qualifications in the House, under the 33 Geo. III. c. 20.

"The law as to the eldest sons of Scotch Peers not being eligible to serve as Members for Scotch counties or boroughs, was finally settled in the case of Lord Daer, the eldest son of the Earl of Selkirk, reported in 8 Brown's Parliamentary Cases, Third Edit. 8vo. p. 1; but as there is no law to exclude them from representing English counties or boroughs; and as the principle upon which they have been excluded in Scotland does not apply to England, there can be no doubt that they are personally eligible to serve for England; and Mr. Hatsell is therefore right in his observation as to the expressions used in the resolutions cited by him, that the incapacity ought to have been confined to the sitting for Scotch burghs, and not stated as general incapacity to sit. But the observation of Mr. Hatsell does not affect the question of qualification, which must be decided by reference to the letter and spirit of the laws relating to qualifications in the two countries. It is obvious that the exception which exempts eldest sons of Peers, and of persons qualified to serve as Knights of Shires, from the law which requires the Candidate to possess a certain amount of landed property, is founded upon the principle, that the presumed reversionary interest of such eldest son is equivalent, with reference to the object of the law, to the possession of the property required; and the notoriety of such

property is sufficiently attained by the description of eldest son: but as landed property in Scotland, however large, would give no qualification for an English county or borough, I think it would be difficult to contend that the character of eldest son of a Scotch peer could give it according to the spirit and fair interpretation of the laws relating to English qualifications; and I think, also, upon the grounds stated in the case, that B. is not within the letter of the law.

"Upon very full consideration, therefore, which I have given to this case, I am of opinion, that B.'s character of eldest son of a peer of Scotland does not qualify him to sit for the borough of A.

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"Under the peculiar circumstances of this case, I think that B. may, upon taking his seat, deliver in a landed qualification in England or Ireland, and that such qualification will be sufficient, if he can show that he possessed it at the time of the Election. As I think a committee would not, in such case, the not delivering in a landed qualification at the Election, in consequence of his relying upon his character as an eldest son of a Scotch peer, into such a refusal to give in his landed qualification under the statute of Anne, (if he really then possessed one) as to avoid his election on that ground. If it is intended to try the question, nothing should be said upon it until after Parliament has met; and the petition must state the circumstances specially, and will require considerable attention.

July, 1818."

(Signed) "WILLIAM HARRISON."

The closing recommendation to conceal the intention of petitioning against Lord Binning's return, until after he had taken his seat, was not followed. Several weeks before the assembling of Parliament, I called a public meeting of the independent Freemen, and stated to them, that it was the opinion of Mr. Harrison, that the qualification given in by his Lordship at the time of the Election was insufficient; and that, therefore, if a Petition were prescribed against him, his seat must be vacated, and a new Writ issued for the city of Rochester. The meeting, which was extremely numerous, immediately appointed a Committee to take this communication into consideration, and to report to the Freemen at large their opinion respecting the measures which it might be expedient to adopt.

The first step taken by the Committee was to obtain a second opinion upon the legality of the qualification given in by Lord Binning. The case was laid before Mr. Warren, who answered it in these terms:

"1st,-I do not think that this case can be considered clear of

doubt or difficulty, but I apprehend that Lord Binning, in the character above described, is not qualified to sit for the city of Rochester in the House of Commons.

"2nd,-I think that as Lord Biuning declared at the time of the Election, upon a question put to him by the returning officer, that he had no other qualification than that of being the eldest son of a Scotch peer, he cannot avail himself of a different qualification before a committee, if a petition should be presented against him; but it is not necessary that the qualification which he gives in on taking his seat, should be the same as that he gave in at the time of the poll. He may have acquired a new qualification. (Signed) "C. WARREN."

"Lincoln's-Inn,

November 17, 1818."

Having thus obtained the opinion of the two most eminent parliamentary lawyers in the kingdom, against the sufficiency of Lord Binning's qualification, your committee signed a requisition to the Mayor for a Common Hall, in order to submit the same to the Freemen at large, and to consult them on the measures, proper to be pursued. The Hall was granted; extraordinary means were employed to procure a full attendance of Lord Binning's friends, and yet, on the questions being put, it was carried by a vast majority, that a petition should be presented against his Lordship's return, and that a subscription should be immediately. entered into for the purpose of defraying the expenses of the

same.

Such, Gentlemen, is the history of the petition which a committee of the House of Commons has pronounced to be frivolous and vexatious. Your conduct throughout the whole transaction displays the highest rectitude of principle, guided by the most sound discretion; and there is not a free and honest mind throughout the country which will not applaud what you have done. Is it frivolous to watch with assiduity and care over the sacred rights of the Elective Franchise? Is it vexatious to try a great constitutional question under the sanction of opinions obtained from the most distinguished parliamentary lawyers of the day? The propositions involve self-evident absurdity; and to state, is to refute them.

It is quite clear, however, that when a petition is presented to the House of Commons against the return of a sitting Member, and afterwards declared to be frivolous and vexatious, there must be an error somewhere. This error may rest with the legal men who advised the Petition; or with the members of the committee who tried it; or with the persons by whom it was preferred. Now, Gentlemen, I do not attempt to pronounce that the very eminent parliamentary lawyers, by whose advice we were guided

in petitioning against Lord Binning's return, betrayed professional ignorance in the opinions which they gave. Neither do I presume, in any way to insinuate, that any members of the committee, sworn as they were, to do impartial justice, allowed themselves to be guided, in the slightest degree, by party spirit, much less by party spleen. What I say, and what I am prepared to maintain is, that you, the independent Freemen of Rochester, conducted yourselves throughout the whole transaction in a manner which must command the approbation of every man possessing a sound understanding, and an honest heart. However strongly you objected to the politics of Lord Binning, and however much you deplored the want of confidence and union to which alone he owed his situation on the poll, you had no inclination to enter into groundless and vexatious litigation. There was nothing rash or precipitate in your conduct. In committees, in general meetings, and in common halls, you dispassionately discussed the important question,-whether you were legally represented; and it was not until your opinions were borne out and confirmed, by those of two professional men of the highest character, that you' at length determined to petition the House of Commons for redress. Your conduct has been worthy of Rochester, and of Kent; and if you have failed to obtain the object which you sought, you have proved to the world that you are deserving of success.

For myself, I can most truly assure you, that the unexpected decision which has taken place, has in no way abated the satisfac tion with which, in obedience to the wishes conveyed to me by several most respectable Freemen, I signed your Petition against Lord Binning's return. Every thing which occurred during the discussion of this important question, tended only to strengthen my conviction that his Lordship does not possess, in his character as eldest son of the Earl of Haddington, a legal qualification to represent any county, city, or borough in England. I do not say that the Committee did not act conscientiously; but with the strong opinions which I entertain upon the subject, I had much rather be an unsuccessful Candidate, and a defeated Petitioner, than one of those who pronounced it vexatious to try the constitutional question respecting the qualification of the son of a Scotch peer.

Under all the circumstances of the case, our opponents will have little reason to exult at the temporary success they have obtained. A general election cannot be a very distant event, and the spirit of independence is as an elastic ball, the harder it is struck the higher it rebounds.

As many of the independent Freemen have not had an opportunity of hearing the discussions which took place respecting Lord