trine, 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. elections, returns, &c. and he allows it in such contempts as immediately interrupts their proceedings; or, as Mr. Noye expresses it, fal ling out in their view in Parliament.

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 entrust 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.

TO THE

Printer of the Public Advertiser.

SIR,

May 28, 1771. ANY man who takes the trouble of perusing the journals of the House of Commons, will soon be convinced, 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," we have a law which cannot be "known, because it is er post facto: the party "is both legislator and judge, and the jurisdic"tion is without appeal." Well might the judges say, "The law of Parliament 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 led 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. 566,) the House, thonght proper to come to the following resolutions. "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."

2. "That the Serjeant at Arms, attending this

"House, do make no return of, or yield any "obedience to, the said writs of Habeas Corpus; "and for such his refusal, that he have the "protection of the House of Commons"."

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 Lientenant 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 détermine, what is, and what is not, the law of Parliament. The resolutions

If there be, in reality, any such law in Eng. land as the Law of Parliament, which (under the exception stated in my letter on privilege) I confess, after long deliberation, I very much doubt, it certainly is not constituted by, nor can it be collected from the resolutions of either House, whether enacting or declaratory. I de sire the reader will compare the above resolutions of the year 1704 with the following of the 3d of April, 1628. Resolved, That the writ of "Habeas Corpus cannot de denied, but ought to "be granted to every man that is committed or "detained in prison, or otherwise restrained by "the command of the King, the privy council, or any other, he praying the same."

a

I have quoted, stand upon your journals, uncon troverted and unrepealed: they contain 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 infal lible, and that Queen Anne, in consequence of the violent proceedings of that House of Com. mons, 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 constitute 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 had 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.

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 attached 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 lessen, at least, (for un doubtedly 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 basest fellow in the kingdom, I protest, my Lord, I do not think you so. You will have a dange. rous rival in that kind of fame to which you have hitherto so happily directed your ambi.