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.






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 ex post facto; the party is both legislature and judge, and the jurisdiction 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. 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.”

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*.'

* If there be, in reality, any such law in England 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

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 enquire 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

desire the reader will compare the above resolution of the year 1704, with the following of the 3d of April, 1628. “ Resolved, That the writs of Habeas Corpus cannot be 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.

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 constitute the law of parliament. When the king
was urged to dissolve the present parliament, you ad-
vised him to tell his subjects, that he was careful not to
assume any

of those

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.






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 lessen 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 government. I confess 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

you have

« ElőzőTovább »