General Noye gave his opinion as follows: "No doubt "but, in some cases, this House may give judgment ;-"in matters of returns, and concerning members of our "House, or falling out in our view in parliament; but, "for foreign matters, knoweth not how we can judge "it-Knoweth not that we have been used to give judg"ment in any case, but those before-mentioned."

Sir Edward Coke, upon the same subject, says, page 604, "No question but this is a house of record, and "that it hath power of judicature in some cases ;—hath power to judge of returns and members of our House; once, no Member, offending out of the parliament, "when he came hither, and justified it, was censured "for it."

Now, Sir, if you will compare the opinion of these great sages of the law with Junius's doctrine, you will find they tally exactly.--He allows the power of the House to commit their own members, which, however, they may grossly abuse. He allows their power in cases where they are acting as a court of judicature, viz. elec tions, returns, &c.-And he allows it in such contempts as immediately interrupt their proceedings; or, as Mr. Noye expresses it, "falling out in their view in parlia

"ment.'

They, who would carry the privileges of parliament farther than Junius, either do not mean well to the public, or know not what they are doing. The government of England is a government of law. We betray ourselves, we contradict the spirit of our laws, and we shake the whole system of English jurisprudence, whenever we intrust a discretionary power over the life, liberty, or fortune of the subject, to any man or set of men whatsoever, upon a presumption that it will not be abused.

PHILO JUNIUS.

LETTER XLVIII..

SIR,

TO THE PRINTER OF THE PUBLIC ADVERTISER.

May 28. 1771.

ANY man who takes the trouble of perusing the Journals of the House of Commons, will soon be con

vinced, that very little, if any regard at all, ought to be paid to the resolutions of one branch of the legislature, declaratory of the law of the land, or even of what they call the law of parliament. It will appear that these resolutions have no one of the properties, by which, in this country particularly, law is distinguished from mere will and pleasure; but that, on the contrary, they bear every mark of a power arbitrarily assumed, and capriciously applied; that they are usually made in times of contest, and to serve some unworthy purpose of passion or party; that the law is seldom declared, until after the fact by which it is supposed to be violated;--that legislation and jurisdiction are united in the same persons, and exercised at the same moment ;-and that a court, from which there is no appeal, assumes an original jurisdiction in a criminal case: In short, Sir, to collect a thousand absurdities into one mass, 66 we have a law, which cannot be "known, because it is ex post facto, the party is both le"gislator and judge, and the jurisdiction is without ap "peal." Well might the judges say, "The law of par"liament is above us.".

You will not wonder, Sir, that, with these qualifications, the declaratory resolutions of the House of Commons should appear to be in perpetual contradiction, not only to common sense, and to the laws we are acquainted with (and which alone we can obey), but even to one another. I was lead to trouble you with these observations, by a passage which, to speak in lutestring, I met with this morning, in the course of my reading, and upon which I mean to put a question to the advocates for privilege. On the 8th of March, 1704, (Vide Journals, Vol. XIV. p. 565.), the House thought proper to come to the following resolutions 1. "That no commoner "of England, committed by the House of Commons for "breach of privilege, or contempt of that House, ought to be, by any writ of Habeas Corpus, made to appear in any other place, or before any other judicature, during that session of parliament wherein such person was so committed."

R

2. “That the Sergeant at Arms, attending this House, "do make no return of, or yield any obedience to the aid writs of Habeas Corpus; and, for such his refusal,

"that he have the protection of the House of Com 66 mons

Welbore Ellis, What say you? Is this the law of parliament, or is it not? I am a plain man, Sir, and cannot follow you through the phlegmatic forms of an oration. Speak out, Grildrig; say yes, or no.-If you say yes, I shall then inquire by what authority Mr. De Grey, the honest Lord Mansfield, and the Barons of the Exchequer, dared to grant a writ of Habeas Corpus for bringing the bodies of the Lord Mayor and Mr. Oliver before them; and why the Lieutenant of the Tower made any return to a writ, which the House of Commons had, in a similar instance, declared to be unlawful.-If you say no, take care you do not at once give up the cause, in support of which you have so long and so laboriously tortured your understanding. Take care you do not confess that there is no test by which we can distinguish,—no evidence by which we can determine what is, and what is not the law of parliament. The resolutions. I have quoted stand upon your Journals, uncontroverted and unrepealed ;they contain a declaration of the law of parliament, by a court competent to the question, and whose decision, as you and Lord Mansfield say, must be law, because there is no appeal from it: and they were made, not hastily, but after long deliberation upon a constitutional question. -What farther sanction or solemnity will you annex to any resolution of the present House of Commons, beyond what appears upon the face of those two resolutions, the legality of which you now deny? If you say that parliaments are not infallible; and that Queen Anne, in consequence of the violent proceedings of that House of Commons, was obliged to prorogue and dissolve them; I shall agree with you very heartily, and think that the precedent ought to be followed immediately. But you, Mr. Ellis, who hold this language, are inconsistent with your own principles. You have hitherto maintained, that the House of Commons are the sole judges of their own privileges, and that their declaration does ipso facto constitute the law of parliament: yet now you confess that parliaments are fallible, and that their resolutions may be illegal; consequently, that their resolutions do not consti.. tute the law of parliament. When the king was urged

to dissolve the present parliament, you advised him to tell his subjects, that " he was careful not to assume any of "those powers which the constitution has placed in other "hands," &c. Yet Queen Anne, it seems, was justified in exerting her prerogative to stop a House of Commons, whose proceedings, compared with those of the assembly of which you are a most worthy member, were the perfection of justice and reason.

In what a labyrinth of nonsense does a man involve himself, who labours to maintain falsehood by argument? How much better would it become the dignity of the House of Commons to speak plainly to the people, and tell. us at once," that their will must be obeyed, not because "it is lawful and reasonable, but because it is their will?” Their constituents would have a better opinion of their candour, and, I promise you, not a worse opinion of their integrity.

PHILO JUNIUS

LETTER XLIX.

TO HIS GRACE THE DUKE OF GRAFTON.

MY LORD,

June 22. 1771.

THE profound respect I bear to the gracious. prince who governs this country with no less honour to himself than satisfaction to his subjects, and who restores you to your rank under his standard, will save you from a multitude of reproaches. The attention I should have paid to your failings is involuntarily attracted to the hand that rewards them; and though I am not so partial to the royal judgment, as to affirm, that the favour of a king can remove mountains of infamy, it serves to lesson at least, for undoubtedly it divides, the burden. While I remember how much is due to his sacred character, I cannot, with any decent appearance of propriety, call you the meanest and the basest fellow in the kingdom. I protest, my Lord, I do not think you so. You will have a

dangerous rival in that kind of fame to which you have hitherto so happily directed your ambition, as long as there is one man living who thinks you worthy of his confidence, and fit to be trusted with any share in his govern

ment. I confess you have great intrinsic merit; but take care you do not value it too highly. Consider how much of it would have been lost to the world, if the King had not graciously affixed his stamp, and given it currency among his subjects. If it be true that a virtuous man, struggling with adversity, be a scene worthy of the gods, the glorious contention between you and the best of Princes, deserves a circle equally attentive and respectable. I think I already see other gods rising from the earth to behold it.

But this language is too mild for the occasion. The King is determined that our abilities shall not be lost to society. The perpetration and description of new crimes will find employment for us both. My Lord, if the persons who had been loudest in their professions of patriotism, had done their duty to the public with the same zeal and perseverance that I did, I will not assert that government would have recovered its dignity, but at least. our gracious sovereign must have spared his subjects this last insult ; which, if there be any feeling left among us, they will resent more than even the real injuries they received from every measure of your Grace's administration. In vain would he have looked round him for another cha racter so consummate as yours. Lord Mansfield shrinks from his principles;-his ideas of government perhaps go farther than your own; but his heart disgraces the theory of his understanding.-Charles Fox is yet in blossom; and as for Mr. Wedderburne, there is something about him which even treachery cannot trust. For the present, therefore, the best of princes must have contented himself with Lord Sandwich.-You would long since have received your final dismission and reward; and I, my Lord, who do not esteem you the more for the high office you possess, would willingly have followed you to your retirement. There is surely something singularly benevolent in the character of our sovereign. From the moment he ascended the throne, there is no crime, of which human nature is capable (and I call upon the Re corder to witness it), that has not appeared venial in his sight. With any other prince, the shameful desertion of him in the midst of that distress which you alone had created, in the very crisis of danger, when he fancied he