You will not wonder, Sir, that, with these qualifications, the declaratory refolutions of the house of commons fhould appear to be in perpetual contradiction, not only to common fenfe, 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 thefe obfervations by a paffage, which, to speak in luteftring, I met with this morning in the courfe of my reading, and upon which I mean to put a queftion to the advocates for privilege. On the 8th of March 1704, (vide Journals, vol. XIV. p. 565.) the houfe thought proper to come to the following refolutions.-. "That no "commoner of England, committed by the house "of commons for breach of privilege, or contempt "of that houfe, ought to be, by any writ of Ha "beas Corpus, made to appear in any other place, "or before any other judicature, during that fef"fion of parliament wherein fuch perfon was fo "committed."

2. "That the Serjeant at Arms, attending this "houfe, do make no return of, or yield any obe"dience to the faid writs of Habeas Corpus; and, "for fuch his refufal, that he have the protection "of the house of commons *."

Welbore Ellis, What fay you? Is this the law of parliament, or is it not? I am a plain man, Sir, and cannot follow you through the phlegmatick forms of an oration. Speak out, Gildrig; fay yes, or no. If you fay yes, I fhall then inquire by what authority

*If there be, in reality, any fuch law in England as the law of parliament, which, (under the exception ftated in my letter on privilege), I confefs, after long deliberation, I very much doubt, it certainly is not conftituted by, nor can it be collected from, the refolutions of either Houfe, whether enacting or declaratory. I defare the reader will compare the above refolution of the year 1704, with the following of the 3d of April 1628.-" Refolved, That "the writ 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 fame."

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par

authority Mr. De Grey, the honeft 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 fimilar inftance, declared to be unlawful.-If you fay no, take care you do not at once give up the cause in support of which you have so long and fo laboriously tortured your underftanding. Take care you do not confefs that there is no teft by which we can diftinguifh,-no evidence by which we can determine, what is, and what is not, the law of parliament. The refolutions I have quoted stand upon your journals, uncontroverted and unrepealed: they contain a declaration of the law of liament, by a court competent to the queftion, and whofe decifion, as you and Lord Mansfield fay, must be law, because there is no appeal from it; and they were made, not haftily, but after long deliberation upon a conftitutional queftion. -What farther fanction or folemnity will you an nex to any refolution of the present house of commons, beyond what appears upon the face of those two refolutions, the legality of which you now deny? If you fay that parliaments are not infallible, and that Queen Anne, in confequence of the violent proceedings of that houfe of commons, was obliged to prorogue and diffolve them; I fhall agree with you very heartily, and think that the precedent ought to be followed immediately. But you, Mr, Ellis, who hold this language, are inconfiftent with your own principles. You have hitherto maintained, that the house of commons are the fole judges of their own privileges, and that their declaration does ipfo facto conftitute the law of parliament: yet now you confefs that parliaments are fallible, and that their refolutions may be illegal; confequently, that their refolutions do

not

not conftitute the law of parliament. When the King was urged to diffolve the present parliament, you advised him to tell his fubjects, that he was careful not to affume any of those powers which the conftitution had placed in other hands, &c. Yet Queen Anne, it seems, was juflified in exerting her prerogative to ftop a houfe of commons, whose proceedings, compared with thofe of the affembly of which you are a moft worthy member, were the perfection of juftice and reason.

In what a labyrinth of nonfenfe does a man involve himself, who labours to maintain falfehood by argument? How much better would it become the dignity of the Houfe of Commons, to speak plainly to the people, and tell us at once, that their avill must be obeyed, not because it is lawful and reafonable, but because it is their will? Their conftiouents 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. TH HE profound refpect I bear to the gracious Prince who governs this country with no less honour to himself than fatisfaction to his fubjects, and who reftores you to your rank under his ftandard, will fave you from a multitude of reproaches. The attention I fhould have paid to your failings is involuntarily attracted to the hand that rewards them; and though I am not fo partial to the royal judgment as to affirm, that the favour of a King can remove mountains of infamy, it ferves to leffen at least, for undoubtedly it divides, the burden. While I remember how much is due to his facred character,

character, I cannot, with any decent appearance of propriety, call you the meaneft and the bafest fellow in the kingdom. I proteft, my Lord, I do not think you fo. You will have a dangerous rival in that kind of fame to which you have hitherto fo happily directed your ambition, as long as there is one man living who thinks you worthy of his confidence, and fit to be trufted with any fhare in his government. I confefs I confefs you have great intrinfick merit; but take care you do not value it too highly. Confider how much of it would have been loft to the world, if the King had not gracioufly affixed his ftamp, and given it currency among his fubjects. If it be true that a virtuous man, ftruggling with adverfity, be a fcene worthy of the gods, the glorious contention between you and the best of Princes deferves a circle equally attentive and refpectable: I think I already fee other gods rifing from the earth to behold it.

But this language is too mild for the occafion. The King is determined that our abilities shall not be loft to fociety. The perpetration and defcription of new crimes will find employment for us both. My Lord, if the perfons who have been loudeft in their profeffions of patriotifm, had done their duty to the publick with the fame zeal and perfeverance that I did, I will not affert that government would have recovered its dignity, but at least our gracious Sovereign must have spared his fubjects this laft infult*; which, if there be any feeling left among us, they will refent 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 character fo confummate as your's. Lord Mansfield fhrinks from his principles;-his ideas of government perhaps go farther than your own, but his heart difgraces the theory of his understanding.Charles

Y

The Duke was lately appointed Lord Privy Scal,

Charles Fox is yet in bloffom; and as for Mr. Wedderburne, there is something about him which even treachery cannot trust. For the prefent, therefore, the best of princes must have contented himself with Lord Sandwich.-You would long fince have received your final difmiffion and reward; and I, my Lord, who do not esteem you the more for the high office you poffefs, would willingly have followed you to your retirement. There is furely fomething fingularly benevolent in the character of our Sovereign. From the moment he afcended the throne, there is no crime, of which human nature is capable, (and I call upon the Recorder to witness it), that has not appeared venial in his fight. With any other Prince, the fhameful defertion of him in the midft of that diftress which you alone had created,-in the very crifis of danger, when he fancied he faw the throne already furrounded by men of virtue and abilities, would have outweighed the memory of your former fervices. But his Majefty is full of juftice, and understands the doctrine of compenfations. He remembers with gratitude how foon you had accommodated your morals to the neceffity of his fervice;-how cheerfully you had abandoned the engagements of private friendship, and renounced the most folemn profeffions to the publick. The facrifice of Lord Chatham was not loft upon him. Even the cowardice and perfidy of deferting him may have done you no differvice in his esteem. The inftance was painful, but the principle might please.

You did not neglect the magiftrate, while you flattered the man. The expulfion of Mr. Wilkes, predetermined in the cabinet ;-the power of depriving the fubject of his birthright, attributed to a refolution of one branch of the legiflature ;-the constitution impudently invaded by the house of commons; the right of defending it treacherously

renounced