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LETTERS, &c. 
 

SIX LETTERS 
 
 OF 
 
 JStt&ltcola, 
 
 ON THE 
 
 LIBERTY OF THE SUBJECT, 
 
 AND, 
 
 THE PRIVILEGES 
 
 OF 
 
 THE HOUSE OF COMMONS. 
 
 ORIGINALLY PUBLISHED IN THE TIMES ; 
 
 AND NOW COLLECTED, 
 
 an& tUustrate& tottf) Botes anti aOOitional proofs, 
 
 BY THE AUTHOR. 
 
 “ Reepice quid moneant Leges.’ 7 Juv. 8, 91. 
 
 LONDON: 
 
 PRINTED BY T. COLLINS, NO. 1, HARVEYS BUILDINGS, STRAND; 
 
 for j. budd, pall mall; AND w. WILSON, skinner street. 
 

 
 
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 DEDICATION 
 
 To 
 
 THE PUBLIC. 
 
 THE following Letters were originally published 
 in The Times. I have now collected them, with the 
 addition of such Notes as I think will tend to illus- 
 trate the subject, and beg to dedicate them to you 
 for whose benefit they were written. 
 
 The Power which the House of Commons have 
 lately exercised, and to which they pretend to be 
 entitled, is of a most alarming nature. It threatens 
 no less than the annihilation of that personal 
 liberty which has awakened the most noble emotions 
 ^ in our hearts, and excited the envy of all other 
 '{J. nations. Hitherto we have enjoyed the blessings of 
 freedom : whether we are now to be deprived of 
 rjr that inestimable jewel, is a question which cannot 
 fail to agrtate the minds of all good men ; for, as 
 Q^Mhe poet very truly observes, 
 
 u Jove fix’d it certain, that whatever da j 
 <£ Makes man a slave, takes half his worth away.” 
 
 Pope’s Hom. Od. 17 . 392 . 
 
Tl 
 
 DEDICATION. 
 
 . In a state of liberty, both virtue and genius are 
 kept alive ; in slavery, nothing exists but a spirit of 
 adulation and degeneracy of manners. Cicero, the 
 illustrious patriot and orator of Rome, speaking to 
 Catiline, was very different from the same Cicero 
 pleading before Caisar for Marcellus. It is easy 
 then to see the consequences that would arise if the 
 House of Commons had power to determine in cases 
 of libel, and to imprison the libeller during their 
 pleasure. Public spirit would be lost; genius 
 discouraged ; the Freedom of the Press destroyed ; 
 and liberty at last totally extinguished. For who 
 would be bold enough to censure the conduct of 
 public men, and expose the folly and wickedness of 
 public measures, if he could be dragged before a 
 Tribunal where some corrupt minister commanded 
 a majority, and that majority had power to imprison 
 at pleasure ? We know very well in what manner 
 the Commons have sometimes decided upon ques- 
 tions which concerned themselves. So notoriously 
 partial and unjust was their conduct with respect to 
 Elections, that in the year 1770, Mr. Grenville was 
 obliged to bring in a Bill which directs that in future 
 they shall proceed in those cases upon Oath . With 
 what integrity then can it be supposed that they would 
 act in matters of libel, where they are not bound to 
 decide upon their oaths ? Would Ministers have no 
 influence with some Members ? Would the love of 
 Power have no charms with others? May the 
 freedom of Englishmen never be trusted to such 
 hazards! Those who would vote away the public 
 
DEDICATION. 
 
 Vil 
 
 money without any concern for the burthens of the 
 people ; those who would approve of the very 
 worst of measures, in order to gratify a Patron 
 Minister; those, who would be vain of the exercise 
 of power, would feel but little reluctance in voting 
 away Magna Charta, and leaving the people in a 
 state of uncertainty and slavery. 
 
 But as it is the object of the following pages to 
 shew, that the Commons neither have, nor ought to 
 have, the power of imprisoning the people at their 
 pleasure, it would be superfluous for me to enlarge 
 upon the subject in this place. I shall, therefore, 
 take my leave of you with beseeching you most 
 earnestly to maintain your rights and liberties; 
 and that you may always deserve to enjoy them is 
 the fervent prayer of 
 
 PUBLICOLA. 
 

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 LETTER I, 
 
 TO THE MOST REV. FATHER IN GOD, 
 
 CHARLES MANNERS SUTTON, 
 
 BY DIVINE PROVIDENCE 
 
 ARCHBISHOP of CANTERBURY. 
 
 Magna fuit quondam Magna reverentia Chart a. Lord Coke. 
 
 MAY IT PLEASE YOUR GRACE, 
 
 On the 15th day of June, in the year of our Lord 1215, 
 John, then King of England, granted unto his subjects a 
 Charter, called “ Tiie Charter of Liberties, or the Great 
 Charter.” By a chapter in this Charter which alone, (says 
 Mr. Justice Blacrstone,) would have merited the title that it 
 bears, of the Great Charter, every individual of the nation is 
 protected in the free enjoyment of his life, his liberty, and his 
 property, unless declared to be forfeited by the legal judgment 
 of his Peers, or the law of the land: « Nullus liber homo 
 ■capiatur, vel imprisonetur, nisi per legale judicium 
 tarium sxjorum, vel per legem terras;” words which deserve 
 to be written in letters of gold, and to be inscribed in capitals 
 on some conspicuous place in all our Courts of judicature. 
 
 B 
 
t 10 ] 
 
 Henry the son and successor of John, renewed the Great 
 Charter in the 9th year of his reign.* He did not, however, 
 govern himself by its restrictions with that fidelity which he 
 had professed, and therefore, when, in the year 1253, he de- 
 manded an aid to go to the Holy Land, the Barons refused to 
 grant it to him, unless he would promise to observe his father’s 
 Charter. Henry assured them it should be punctually kept. 
 Upon this assurance the aid was granted; and soon after 
 (May 3), without any solicitation , he convened in the Great 
 Hail of the Palace of Westminster, an Assembly, at which 
 
 * It is extremely worthy of observation, that Matthew Paris says, the 
 Statute was renewed by Henry in the same words with the Charter of King 
 John. Sir William Blackstone did not attend to this, or he would not 
 have mistaken a sp urious copy, called a Confirmation of the Great. Char- 
 ter by King Henry the Illd. for the authentic copy; but this was no 
 more than Sir Edward Coke had done before him. Sir William, in his 
 edition of the Great Charter, has not only omitted the whole Article in 
 which the word Terminum is inserted by King John, but he has also in 
 Henry the Third’s Confirmation of it copied the barbarous, unintelligible 
 word Turnum, not as an abbreviated,, but as an entire, radical word of it- 
 self. The fact is, that the Confirmation before mentioned, from which 
 Sir William took his copy, is a spurious one, and spurious in every Arti- 
 cle which either makes an addition to, or diminution of. King John’s 
 Great Charter. For Matthew Paris, who was contemporary with John 
 during his whole reign, and who also lived to see 42 years of the reign of 
 Henry the Illd. expressly insists, that the Charter of King John, and the 
 Confirmation of it (eleven years afterwards) by his son Henry III. were 
 in Nuiao dissimiles . And the authority of that English Historian, who,- 
 from his local situation as a monastic resident all his life-time so near the 
 seat of action as the monastery of St. Albans Avas, must necessarily have 
 seen both the one and the other ; and w ho, as the most accurate as well 
 as the most celebrated Historian of his own time hath carefully trans- 
 mitted to posterity, a faithful copy of the Great Charter itself, and yet hath 
 not handed down to us one single artiple of Henry the Third’s Confirma? 
 tion of it, adding, for a very good reason of such his silence and total 
 omission, that “ Charts ufrorumque Regum in nullo invemiuntur dissi- 
 u mi 7es.'’- -Vide Lord Chief Baron Gilbert’s Hisf. of Com. Pleas, 3rd. ed. 
 introd. p. 3, note: and the learned Selden, in his Argument for Sir Ed- 
 mund Hampden, Opp. III. 1938. 
 
[ 11 ] 
 
 Were present all the Lords Spiritual and Temporal, with lighted 
 tapers in their hands. The King would not hold one, saying} 
 he would lay his hand upon his heart during the whole cere- 
 mony, to shew he consented to what was going to be pro- 
 nounced. Then the Archbishop of Canterbury standing u]) 
 before all the people, denounced a terrible curse against all that 
 for the future should oppose, directly or indirectly, the obser- 
 vance of the Great Charter ; and likewise, against those that 
 should any way violate, diminish, or alter the Laws and Con- 
 stitutions of the kingdom. This anathema being denounced, the 
 Charter was read aloud and confirmed by the King, who kept 
 his hand all the while on his breast, and said, after all was per- 
 formed, So may God help I inviolably observe all these 
 things , as I am a man , as I am a Christian , as I am a Knight , 
 as f am a crowned and anointed King. This done, every one 
 threw down his taper upon the ground, and wished that those 
 who violated the Charter might thus smoke in Hell. (See M. 
 Paris, p. 866.) 
 
 The Sentence or Curse given against the breakers of the 
 Great Charter is in these words : — 
 
 u In the year of our Lord 1253, the third day of May, in 
 * £ the Great Hall of the King at Westminster, in the presence, 
 <c and by the assent, of the Lord Henry, by the grace of God, 
 x( King of England, and the Lord Richard Earl of Cornwall, 
 his brother, Roger Bigot, Earl of Norfolk and Suffolk, 
 u Mareschal of England, Humfrey Earl of Hereford, Henry 
 u Earl of Oxford, John Earl Warren, and other estates of 
 u the Realm of England ; William Boniface, by the mercy of 
 <c God, Archbishop of Canterbury, Primate of England, E. 
 u of London, II. of Ely, S. of Worcester, E. of Lincoln, 
 u W. of Norwich, G. of Hereford, W. of Salisbury, W. of 
 u Durham, R. of Exeter, M. of Carlisle, W. of Bath, E. of 
 Rochester, T. of St. David’s, Bishops apparelled in pon- 
 tificals, with tapers burning, against the breakers of the 
 B 2 
 
[ «■] 
 
 44 Church’s liberties, and of the liberties or other customs of 
 44 the Realm of England, and namely, of these which are con~ 
 
 44 tained in the Charter of the Common Liberties of England, 
 
 44 have denounced the Sentence of excommunication in this 
 44 form. By the authority of Almighty God* the Father, the 
 44 Son* and the Holy Ghost, and of the glorious Mother of 
 44 God, and perpetual Virgin Mary, of the blessed Apostles 
 44 Peter and Paul, and of all Apostles, and of all Martyrs, of 
 44 blessed Edward King of England, and of all the Saints of 
 44 Heaven, we excommunicate, accurse, and from the benefits* 
 44 of our holy mother, the church, we sequester all those that 
 44 hereafter willingly and maliciously deprive and spoil the 
 44 church of her right; and all those that by any craft or 
 44 wileness do violate, break, diminish* or change the Church’s 
 44 liberties, and free customs contained in ike Charter of the 
 44 common liberties , granted by our Lord the King, to Arch* 
 44 bishops, Bishops, and other Prelates of England ; and 
 44 likewise to the Earls, Barons, Knights, and other Free- 
 44 holders of the realm and all that secretly or openly , by 
 <s deed , word , or council, do make Statutes , or observe them 
 44 being made , and that bring in customs , or keep them when 
 44 they be brought in , against the said liberties, or any of them,. 
 44 the Writers, the Law-makers, Councellors, and the Execu- 
 44 tioners of them, and all those that shall presume to judge 
 44 against them : all and every which persons before-mentioned, 
 44 that willingly shall commit any of the premises, let them 
 44 well know that they incur the foresaid sentence, ipso facto^ 
 44 (i. e. upon the deed done)* And those that commit ought 
 44 ignorantly, and he admonished, except they reform them- 
 44 selves within fifteen days after the time, of their, admonition,. 
 44 and make full satisfaction for that they have done, at the 
 44 will of the ordinary, shall be frtfm that time wrapped in the 
 44 said sentence. To the perpetual memory of which thing, 
 44 we, the aforesaid Prelates, have put our seals to these 
 44 presents.” 
 
t 13 3 
 
 Henry the Third was succeeded by Edward the First and" in 
 the 25’th yeaT of his reign, (being the year of our Lord 1 297 )? 
 your Grace is aware, that the Great Charter Was again con*, 
 firmed. u And we will (says the Statute) that our Justices^ 
 Sheriffs , Mayors , and other Ministers , which under us havt 
 the laws of our land to guide, shall allow the same Charier , 
 pleaded before them in all its points , as the common law.” 
 
 Chap. 2. u And we will , that if any judgment be given from 
 henceforth , contrary • £o the points of the Charter aforesaid , 
 the Justices , or awy oMer Ministers that hold plea before 
 them , against the points of the Charier , & shall 'be imdone^ 
 and holden for nought .” 
 
 Chap. 3. zee that the same Charter shall be 
 
 sent , under our seal , Cathedral Churches throughout our 
 
 Realm , there to remain , and shall be read before the people two< 
 limes by the year.” Here (says my Lord Coke) it is to be' 
 observed what care was taken: for the preservation of this 
 Charter., for (adds he) it is good chance to obtain, but great 
 wisdom to keep. (2 Inst. 52 7.) 
 
 Chap. 4. u And that all Archbishops and Bishops shall pro — 
 nounce the sentence cf excommunication against all those , Ma# 
 % word, deed , or council , t/o contrary to the feresaid Charter r 
 or that in any point break or undo it. And that the said 
 ourses -be twice a year denounced and published by the Prelates 
 aforesaid. And if the same Prelates , Bishops , or any of them 
 be remiss in the denunciation of the said sentence , the Arch- 
 bishops of Canterbury awe? York, for the time being , sAa/Y 
 compel and distrain them to the execution of their duties in 
 form aforesaid.”* 
 
 * This excommUnieation the Prelates could not pronounce Without, 
 warrant by authority of Parliament, because it concerned temporal af- 
 fairs.— -2. Inst. 527. 
 
C 14 ] 
 
 Now I, as a Freeman of England, naturally jealous of tfie 
 liberties secured to me by the Great Charter, do approach your 
 Grace with the utmost reverence, to request that you will 
 direct the said Charter to be read before the people twice this 
 year y and every succeeding year, in the Cathedral Churches 
 within your province ; and also that you will desire the Bishops 
 
 In an old edition of “ The Case of the Bankers,” &c. there is the 
 following passage 
 
 “ The time would fail me, should I enlarge upon that inviolable bul- 
 “ wark of our Liberties and Property, the Magna Ciiarta, or Great 
 44 Charter of England; a Charter, purchased with the Treasure and 
 “ sealed with the Blood of our Ancestors ; a Law promulged and esta- 
 4 ‘ blished to the English, with a terror and solemnity inferior only to that 
 44 of the Holt i Commandments by God himself to the Jew r s. There was 
 44 here no Thunder or Lightning, it is true ; but there was so dreadful a 
 44 fulmination of Curses upon the Violators thereof, that no man ever yet 
 * * * * 4 considered them without Horror and Astonishment; a La\v, revered 
 “ by former Parliaments to that degree, that they enacted transcripts 
 44 thereof to be carefully preserved in all the Cathedrals of the Realm ; 
 44 that it should be carefully read before the people; that twice a year 
 44 the Prelacy should thunder out the greater excommunication against 
 44 the Infringers thereof, though but in Word or Council (says the Sta- 
 44 tute ;) that the Lord Chancellor and all the great Ministers rf Stale r 
 44 upon Entry into.their Offices, should constantly be sworn to the Obser- 
 '* vation thereof; that it should be allowed as the Common Lau\> by all 
 44 Officers of Justice; that all Judgments , in opposition thereto, should 
 * 4 be null and void; nay, that the very Priests should frame the Con- 
 44 sciences of the People, to the observance thereof; and lastly, a Lawy 
 
 44 confirmed by no less than T'hirti/-two several Acts of Parliament . 
 
 44 And what was the reason of all this Veneration and Diligence ? Was 
 
 4 this Charter of that Sanctity and Importance ? — Yes, surely ; the Pre- 
 44 sence thereof was then thought as necessary to the English , as that of 
 44 the Palladium to the Trojans; the Holt; Ark to the Hebrews; the 
 44 Sea-Banks to the States of Holland. In company of this Tutelar, there 
 4 ‘ was no possible danger. In the absence thereof, no possible safety. 
 Such- then was the. care of our Ancestors (die men, perhaps, though 
 44 not so great Clerks ) in the munition and fencing about of their Rights 
 44 and Properties ; and so invincible was their zeal to transmit those 
 44 Jewels to their Posterities, with the same lustre and beauty, that they 
 
t « ] 
 
 to pronounce the sentence of excommunication against alt 
 those, that by word, deed, or council, do contrary to the 
 same Charter, or that in any point break or undo it. Your 
 Grace is aware, that the Bishops have, for many years, ne- 
 glected to read the Great Charter in the Cathedral Churches, 
 and to pronounce excommunication against the breakers of it; 
 but the Statute of Edward I. is still in full force, and by 
 Chapter 4 of that Statute, you, as Archbishop of Canterbury, 
 are required to compel and distrain the Bishops to the execu- 
 tion of their duties in form aforesaid. Your Grace will not, 
 I am sure, be unwilling to admit, that the Great Charter ought 
 to be kept sacacd ; and, indeed, you will perceive that tha 
 Act of Confirmation by Edward I. declares, that u , all 
 Justices , Sheriff's , Mayors , and other Ministers, which, 
 (6 under ns, have the laws of our land to guide, shall allow 
 <6 the same Charter pleaded before them in all its points f* 
 and (Chapter 2) u if any judgment be given from hence - 
 i6 forth,' contrary to the points of the Charter aforesaid , by 
 the Justices, or by any other Ministers that hold plea before 
 <c them, against the points of the Charter , it shall be undone , 
 and holden for nought .” By this Chapter your Grace 
 observes, that as long as Magna Charta is unrepealed, all judg- 
 ments given against any of the points of it shall be annulled 
 and holden for nought ; and, therefore, it is very material for 
 the welfare of the subject, that the said Charter should be 
 • ££ read before the people in the Cathedral Churches, two times 
 ££ by the year.” If this be done (and by the Act of Edward 
 I. your Grace is bound to see it ddne) every one will under- 
 stand what liberty he has, and how far he may act. For in- 
 
 44 themselves had received them from their Predecessors; those old English 
 “ heroes seeming to me to bear always in mind that saying of our Country 
 44 man , and great Captain, Galgacus^ when his Army was in the instant 
 44 of joining Battle here with the Roman invaders; et majores ve\ ■> os 
 •“ et Post f. 'os cogitate : — Fellow \ Soldiers , says he, remember your ylnces- 
 “ tors and your Posteritie, ; a short speech, but containing more of Ar- 
 46 gument and Persuasion, than can be expressed in ten Reams of Paper.” 
 
[ 16 ] 
 
 stance, just to put a case to illustrate what I mean : suppose 
 any person should set up a custom against any of the points* 
 of Magna Charta: now, if any one were injured by tho-. 
 exercise of such custom, he would plead the Great Charter, 
 and the Act of Edward declares, a that all Justices, &c. &c. 
 u shall allow the same Charter pleaded before them in all its 
 u points ; and if they give any judgment contrary to the 
 
 points of the Charter, it shall be undone and holden fop 
 u nought Can any thing be more clear ? And, therefore, your 
 Grace perceives, that custom will not do, if it be against the 
 Great Charter; and also my Lord Coke declares, that u no 
 Custom can prevail against an express Act or Par- 
 liament*” (Co. Litt. 113.) 
 
 Now, your Grace knows, that Magna Charta was confirmed 
 no less than thirty times from the first Edward to Henry IV. 
 It is still in full force and utirepealcd, and repealed it can 
 never be, but by the Parliament. By this word Parliament, 1 
 do not mean, nor will your Grace understand it to mean, one 
 branch of the Legislature only, but the three estates of King, 
 Lords, and Commons. For, as King Charles I. in his answer 
 to the declaration ancl votes of the two Houses concerning Hull 
 (Clarendon, 1. part 400; and Rushworth’s collections) de- 
 clared, 66 he very well knew the great and unlimited power of a 
 * 6 Parliament, but he knew as well it was only in that sense, 
 u as he was a part of that Parliament; without him, and 
 <c against his consent, the votes of either, or both Houses to- 
 {( gether, must not, could not, should not (if he could help 
 u it, for his subject’s sake as well as his own) forbid any thing 
 <c that was enjoined by the law, or enjoin any thing that was 
 “ forbidden by the law.” 
 
 I will say no more. But I repeat that I now call upon 
 your Grace, pursuant to the 3d and 4th chapters of the Act 
 of 25th Edward the First, to direct the Bishop, to read the 
 Great Charter twice this year before the people, in the Cathe- 
 
i in 
 
 dral Church of St. Paul in London, and in all other the Ca- 
 thedral Churches within your province; and I do also hereby 
 require your Grace to instruct the Bishops at the same time 
 to u pronounce the sentence of Excommunication against all 
 “ those, that, by word, deed, or council, do contrary to the 
 ct said Charter, or that in any point break or undo it;” and 
 if the Bishops, or any of them, be remiss in the denunciation 
 of the said sentences, then I charge your Grace, as Archbishop 
 of Canterbury^ for the time being, “ to compel and distrain 
 u them to the execution of their duties, in form aforesaid.” 
 I shall shortly make a similar application to the Archbishop of 
 York ; and I humbly hope, that both you/ Grace and he will 
 thank me for reminding you of this very important branch of 
 your duty. Your Grace will recollect, that Magna Charta 
 secured the Liberties of the Church, as well as the Liberties of 
 the People ; and therefore you ought, in that respect, to see 
 the Great Charter most strictly kept. — With the utmost reve- 
 rence to your Grace, I have the honour to be, 
 
 Your very humble servant, 
 
 PtjBLICOLA. 
 
 C 
 
LETTER 1L 
 
 r 
 
 TO THE MOST REV. FATHER IN GOD, 
 
 CHARLES MANNERS SUTTON, 
 
 BY DIVINE PROVIDENCE 
 
 ARCHBISHOP OF CANTERBURY. 
 
 “ MAGNA Charta being only an Abridgement of our ancient Laws and 
 « Customs, the King that swears to it, swears to them all, and is not 
 “ admitted to be the interpreter of it, or to determine what is good or 
 “ evil, fit to be observed or annulled in it, and he can have no more 
 “ power over the rest. This having been c nfirmed by more Parlia- 
 » m ents than we have had Kings since that time, the same obligation 
 “ must still lie upon them all, as Upon John and Henry, in whose 
 « time that Claim of Right was compiled. We Know the value our 
 “ ancestors set upon their Liberties, and the courage with which they 
 defended them ; and we can have no better example to encourage 
 “ us, never to suffer them to be violated or diminished.” 
 
 Lord So>iers ^~ Judgment of Kingdoms and Nations , 5 6. 
 
 MAY IT PLEASE YOUR GRACE, 
 
 In a former address, I took the liberty to recal to yoOT 
 recollection the solemnity with which the “Charter of Li. 
 « berties, or the Great Charter,” was confirmed by Kmg 
 Henrv 111 in the presence of all the Lords Spiritual and 
 Temporal, M also the sentence, or curse, denounced by the 
 
Archbishop of Canterbury against all those, who by word , 
 deed , or council , should in any point break or undo it. I re- 
 minded you of the statute of the 25th Edward I. whereby the 
 Great Charter was again confirmed, and appointed to be read 
 before the people, by the Bishops, twice a year, in all Cathe- 
 dral Churches throughout the realm ; and I pointed out to 
 you, that, by Chapter IV. of that Act, you, as Archbishop 
 of Canterbury, are required to compel and distrain them to 
 the execution of their duties, in form aforesaid. 
 
 I shall now beg permission, to submit to your Grace some 
 farther observations, in order to shew the necessity of your 
 causing sentence of Excommunication to be denounced against 
 -the breakers of the Great Charter. 
 
 Your Grace knows, that it is the very essence of our Kings, 
 to govern according to Law; for where the will governs, and 
 not the Law, there he is no longer King. The Law is to be 
 the only rule and measure of his government. He can do 
 nothing as a King but what he can legally do. 44 The Law,” 
 saith Bracton, who wrote under Henry III. 44 maketh the 
 44 King. Let the King, therefore, render to the Law, what 
 44 the Lawr has invested in him with regard to others— dominion 
 44 and power ; for he is not truly King, where will and plea- 
 44 sure rule, and not the Law.” It is, therefore, one of the 
 first axioms of our Regal Government, that 44 the Law makes 
 44 the King,” and he subjects himself to the Law by his Coro- 
 nation Oath. For, when a King of England is crowned, the 
 Archbishop or Bishop says to him, 44 Will you solemnly pro - 
 44 mi. e and swear to govern the people of this kingdom of 
 44 England according to the laws and customs of the same?' 7 
 The King answers, 44 I solemnly promise so to do — 4 Will 
 44 you preserve unto the Bi: hops and Clergy of this realm , and 
 44 unto the Churches committed to their charge , all such rights 
 4 ' 4 and privileges as hy law do or shall appertain unto them , 
 
 C 2 
 
£ *° 3 
 
 i* or any of them ?” The King answers, 44 All this I pro » 
 44 mise to do 
 
 Now, when the present King succeeded to the throne, the 
 above questions were put to him, and he gave the above an- 
 swers; and, therefore, your Grace will rejoice, with every in- 
 dividual of this realm, that the King is bound to observe and 
 lceep the Great Charter. I say, your Grace will rejoice, be- 
 cause the very first article of that Charter is, 44 That the Church 
 44 of England shall be free , and enjoy her whole rights and 
 44 liberties inviolable.” And I am sure every individual will 
 
 * These are the terms of the contract between the King and the Peo- 
 ple; and, by the Stat. 1 Will, and Mar. st. 1, c. 6, this oath is to be ad- 
 ministered to every King and Queen who shall succeed to the imperial 
 crown of these realms, by one of-th* Archbishops or Bishops of the 
 realm, in the presence of all the people ; who, on their parts, do reci- 
 procally take the Oath of Allegiance to the Crown. 1 Comm. 235. 
 
 That excellent patriot, and good man, my Lord Somers, says, “ that th$ 
 “ doctrine of absolute passive- obedience is inconsistent with the goodness 
 “ of God, and the love he hath for man ; and is destructive of the end, 
 intent, and design of God’s laws, which is man’s happiness. For God, 
 “ who is infinitely happy in himself, had no other motive than the hap- 
 “ piness of man in those rules he has given him to walk by ; and, for that 
 4t reason, has made it a duty in him to help the poor and miserable, 
 relieve the oppressed and distressed, and do all manner of kindness and 
 « good offices to one another. Can it then be presumed, that he requires 
 “ obedience to tyrannical power, which brings poverty, misery, and 
 « desolation on a nation ? If it be a duty to relieve the poor, it must be 
 « a duty to hinder people from falling into that miserable condition, 
 “ which they cannot prevent, except they have a right to oppose arbi- 
 “ trary power. And, if it be a duty to promote the public good, which 
 « they cannot do if they are obliged to submit to tyrannical government, 
 t ** it must be their duty to oppose it. There is no duty that a man owes 
 “ to his neighbour, or himself, but does oblige him to oppose tyrannical 
 « government; in doing thereof, he gives that honour, and performs the 
 u duty which he owes to his maker; which cannot more be shewn than 
 “ in imitating him, by promoting the good and happiness of his fellow^ 
 creatures,” Ubi. sup.' 5. 115.. 
 
] 
 
 rejoice, because another chapter in the Charter says, “ No 
 
 man shall be taken, or imprisoned , or disseized of his free - 
 16 hold, or outlawed, or banished, or any ways destroyed ; 
 “ nor will we pass upon him , or commit him to prison, unless 
 “ by the legal judgment of his Peers , or by the law of the 
 “ land” But I have no fear, that the King will at any time 
 attempt, or encourage, or countenance others, to break any of 
 the points of the Great Charter; for, I remember, that a little 
 ^hile ago, when some alterations in the laws with regard to 
 religion were suggested to him, he replied, that “ it was against 
 “ his Coronation Oath, and he could not do it” And, there- 
 fore, I am sure the King will not suffer any of his subjects to 
 be imprisoned, unless by the “ judgment of his Peers , or by 
 the law* of the land'” for that would be equally against his 
 Coronation Oath, being against the Great Charter , which is the 
 foundation of the liberties both of the Church and of the people. 
 
 From the King I will pass to the Judges. The Judges are 
 sworn to execute justice (as my Lord Coke says) according 
 Jo law and custom of England. This proves how justly the 
 laws are called the great inheritances of every subject, and 
 the inheritance of inheritances, without which we have no 
 inheritance. For (as Lord Somers observes) “as the subjects 
 of the King are born to lands, and other things, so are they 
 born to inherit and enjoy the laws of this realm, that so every 
 Ilian have an equal benefit by law.” 
 
 Now, if the Judges are sworn to execute justice according to 
 law, are they not bound to execute justice according to Magna 
 Charta ? Then what says the Great Charter r It says, “ Nq 
 “ f reeman shal1 be imprisoned, unless by the legal judgment 
 “ hls Peers ) or ,J li the laze of the land:’ Again, what says 
 the Act of Confirmation of the Great Charter by Edward the 
 “ f ‘ rS ‘ ? 11 SlyS ’ “ Our Justices, Sheriffs, Mayors, and other 
 
 Ministers, which, under us, have the laws of our land to guide, 
 
 ■' S> ■ lallow ^ same Charter, pleaded before them in judgment, 
 
[ 22 ] 
 
 <c in all its points , as the common lam.” This (says my Lord 
 Coke) is a clause worthy to be written in letters of gold : and here 
 (he adds) it is to be observed, that the laws are the Judges* 
 guides, or leaders, according to that old rule, 44 Lex est cxer- 
 a citus judicum tutissimus doctor. ,” or 44 Lex est optimus 
 “ judicis zenagogusy” and 44 Lex est tutissima cassis.” 
 (2 Inst. 526.) 
 
 The Judges of the land are, therefore, found to do justice to 
 every man according to the law of the land. Queen Elizabeth 
 aud her Counsellors urged the Judges very strongly to obey the 
 Patent under her Great Seal, iu the case of Cavendish; but 
 they answered, that both she and they had taken an oath to keep 
 the la:sy and if they should obey her commands , the law would 
 not warrant them, SfC. (Anderson’s Rep. p. 155.) And be- 
 sides the offence against God, their country, and the common* 
 wealth, they allcdged the example of Empson and Dudley, who 
 were executed as traitors, as were Gaveston, the two Spencers, 
 Tresilian, Straffoiid, and others, for subverting the laws of 
 the land, in obedience to the King’s command, whereby they 
 said, They were deterred from obeying her illegal commands . 
 They who had sworn to keep the Daw, notwithstanding the 
 King’s writs, knew that the law depended not upon his will: 
 and the same oath that obliged them not to regard any command 
 they should receive from him, shewed, that they were not to 
 expect indemnity by it ; and not only, that the King had neither 
 the power of making, altering, mitigating, or interpreting the 
 Law ; but that he was not at all to be heard, in general or par- 
 ticular matters, otherwise than as he speaks, in the common 
 course of justice, by the Courts legally established*. Hence it 
 appears, that the Judges arc bound to decide according to the 
 Great Charter; for that is a part (and the most valuable 
 part) of our Laws, and they are sworn to execute justice 44 ac- 
 cording to the Laws ” Upon this principle it was, that 
 
 See Lord Somers, ubi. sup, 1 81. 
 
[ 23 ] 
 
 * { when a letter was written by the Speaker to the Judges , to 
 4< stay proceedings against a privileged person , they rejected it 
 44 as contrary to their oath of office ." — (See Noy. 83, 757.) 
 
 But I will not occupy your Grace too much. 1 will just in- 
 troduce to your notice a passage from the 44 History of the Reign 
 44 of King Charles the Second,” by Bishop Burnet; 
 
 44 The House , he is speaking of the House of Commons in 
 the year 1680) 44 did likewise send their Serjeant to many^parts 
 44 of England , to bring up abhorrers as delinquents : upon 
 44 which the right that they had to imprison any besides their 
 44 own members came io be much questioned, since they could 
 (i not receive an information upon oath , nor proceed against 
 <c such as refused to appear before them. In many places, those 
 44 for whom they sent their Serjeant refused to come up. It was 
 44 found that such practices were grounded on no laze, and were 
 44 no elder than Queen Eliz abeth’s time. While the House of 
 “ Commons used that power gently, it zvas submitted to in re- 
 44 sped to it ; but now it grew to be so much extended, that many 
 44 resolved not to submit to it.” (See Vol. ii. p. 121.) 
 
 Now,- 1 will offer to your Grace a little comment on this pas- 
 sage. First, the Bishop says — 44 It was found that such prac- 
 44 i ices were grounded on no Law.” To be sure it was, for 
 Magna Chart a says, 44 No freeman shall be imprisoned, but 
 by the legal judgment of his peers , or by the law of the land . — 
 Then he says, 44 Such practices were no elder than Queen Eli- 
 zabeth’s time.” This is very important; for it should seem, that 
 the House wanted to set up an immemorial custom, but they 
 could go no farther back than Queen Elizabeth’s time. Now, 
 it is clear and established law, that in order to make a custom 
 good, it must have been used so long, 44 that the znemory of 
 man runneth not to the contrary.” If any one can shew the be- 
 ginning of it within legal memory, (that is, within any time 
 since the first year of the rei.n of Richard I.) it is not a 
 
[24] 
 
 good custom*. But, supposing they could have found pre* 
 cedents before the time of Elizabeth, could they have acted 
 upon them ? Certainly not : for, as Lord Coke says, 44 No 
 44 custom can prevail against an express Act of Parliament 
 and Magna Charta is an express act, which declares, that 44 No 
 44 freeman shall be imprisoned but by the legal judgment of 
 44 his peers , or by the law of the land.” However, the Bishop 
 adds, that 44 While the House of Commons used that power 
 44 gently , it was submitted to in respect to it ; but now it grew 
 44 to be so much extended (a dangerous and alarming circum- 
 stance indeed !) that 44 many resolved not to submit to it.” 
 
 What, then will the Judges of the land say at this day? 
 Does Magna Charta exist ? Can it be repealed but by the 
 Parliament ? Does not the Parliament consist of three estates , 
 the King) Lords , and Commons ? Are not they (the Judges) 
 sworn to execute justice according to the laws of the land? 
 Is not Magna Charta part of the laws of the land ? Does not 
 that Charter contain a clause , that 44 No man shall be impru 
 44 soned but by the judgment of his peers , or by the law of 
 44 the land?” Does not the Act of 25 Edward I. direct , that 
 44 all Justices , <$t. fyc. shall allow the same Charter pleaded 
 44 before them in all its points , as the common law?” And y 
 finally , does not the second chapter of that Act declare , that , if 
 any judgment be given , contrary to the points of the said Char * 
 t r, by the Justices , tyc. fyc. it shall be undone , and holden 
 for nought ? 
 
 Trusting, therefore, that your Grace will at all times defend 
 the Great Charter, which, I repeat, secured the rights and 
 liberties of the Church, as well as of the People, 
 
 1 subscribe myself, with the utmost respect, 
 
 Your very humble Servant, 
 
 PUBLICOLA. 
 
 - — _____ • - j 
 
 * Richard the 1st. began his reign the 6th of July 1189, and wa* 
 crowned the 3rd of September following. So that whatsoever was done 
 before that time, is before time of memory. What is since that time, 
 is, in a legal sense, said to be within, or since the time of memory. — 
 Hale’s Com. L. v, 1. p. 4. 
 
LETTER III 
 
 TO 
 
 Sir SAMUEL ROMILLY, Knt. M. P. 
 
 Xmpius et crudelis judicandus est , qui libertati nonfavet. Angliae jura 
 * i in omni casu libertati dant favorem” — Fortescue, cap. 42. 
 
 ** No man, of what estate or condition that he be, shall be put out of 
 land or tenement, nor taken nor imprisoned, nor disinherited, nor 
 “ put to death, without being brought in to answer by due process of 
 
 ** LAW.” 
 
 Statute 28 Edward III. enforced by 16 Car. I. cap. 10, 
 which regulates the Privy Council, and takes away 
 the Star-Chamber. 
 
 SIR, 
 
 Independent of every party, and influenced by 
 no other motive than that honest ardour which should warm the 
 bosom of every Englishman in the cause of Liberty, I presume 
 to submit to your consideration a few observations on the sub- 
 ject of the Privilege which is claimed by the House of Com- 
 mons, to imprison the people of England. I will confess 
 Sir, that I consider this claim as subversive of the fundamental 
 
 D 
 
[ 26 ] 
 
 laws of the kingdom, and particularly of that strongest bul- 
 wark of our liberty, “ the trial by jury.” I know it has 
 been said, u it is highly improbable, that the House of Com- 
 u mons should abuse the privilege which they now claim ;” but 
 to this I will answer, we have laws which deny them this privi- 
 lege; and “ laws,” as Junius says extremely well, 66 are in. 
 Ci tended, not to trust to what men will do, but to guard 
 <c against what they may do.” I find in the page of history, 
 which is the key of knowledge, that the Roman Senators were 
 once inspired with the noblest sentiments of virtue, probity, and 
 public spirit; but Cicero, who lived to see days of ambu 
 tion and corruption at Rome, says in a letter to a friend, 
 6( aut assentiendum est nulla cum gravitate paucis, aut frustra 
 (( dissentiendum;” that is, u you must either basely vote with 
 66 Crassus and Caesar, and one or two men more in power , or 
 vote against them to no purpose And so, at some future, 
 and perhaps not very distant perio 1 it may happen with our 
 Senate; we may have Ministers who may employ such effica- 
 cious means of corruption as will render them absolute masters 
 of the Government, and then the voices of one or two honest 
 individuals will be of no avail. I contend, then, that the 
 House of Commons ought not to have the power which they 
 have exercised of imprisoning the subject without a trial by 
 Jury; and I ground myself upon this maxim of Tacitls — 
 ** nec unquam satis fida potentia ubi nirnis est.” — u Power 
 without controul is never to be trusted .” For, let us con- 
 sider how easy it would be for a corrupt Minister, having the 
 House of Commons at his command, to determine almost any 
 writing which reflected upon public measures, to be infamous 
 and libellous;* ** and then for the House, being accusers and 
 
 * What measures are there which some men will not support for the 
 sake of money, or in expectation of preferment ? In 1780, the celebrated 
 Mr. Dunning affirmed in the House, and upon his Honor, “ that he knew 
 * fifty Members in that House, and most of them within his hearing, 
 
 ** who totally condemned, and reprobated out of the House, the raea* 
 
[ 27 ] 
 
 Judges ill their own cause, to imprison the writer, not for a 
 certain and limited time, prescribed by the laws of the land, 
 but during their own pleasure or caprice. Indeed, Sir, this 
 would be striking at once at the Liberty of the Press, which is 
 the great jewel of all our liberties; for if the time should 
 ever arrive, when the people of this country are prevented from 
 discussing, with temper and moderation, the conduct of public 
 men and public measures, I consider that all our liberty is 
 lost*. 
 
 But, Sir, I will not argue any longer upon the propriety of 
 the power which the House now claim, to imprison the people 
 without the intervention of a Jury : the grand question for 
 
 “ sures they supported, and voted for in it.” General Conway, in 
 1782, said in the House, “ that he had dined a few days ago with an 
 “ honest plain soldier, who observed that he had never been mox*e 
 “ astonished than at hearing many Members of Parliament most heartily 
 “ condemn in coffee-houses, the very same measures, for which he had 
 “ seen them the most strenuous advocates in Parliament.” 
 
 Tiberius used to laugh at the base compliances of the Senate in his 
 time, and frequently cried out, 0 Homines ad Servitutem paratos ! Well 
 then may it be said to the people whom such Members as these profess 
 to represent — 
 
 “ Pone seram; cohibe — Sed quis custodiet ipsos 
 “ Custodes ?” Juv. 6, 346. 
 
 “ To legal forms in vain your rights you trust, 
 
 “ For who shall keep the very keepers just ?” 
 
 Wakefield. 
 
 * It was an excellent saying of Socrates, that “ the Sun might as easily 
 “ be spared from the Universe, as Free Speech from the liberal institu* 
 “ .tionsof Society.” (Apud Stob. eth. eel. 13.) Timoleon, the deliverer 
 .of Syracuse from the tyranny of Dionysius, told his friends, who were 
 urging him to punish a slanderer of his virtuous achievements, that 
 “ his primary motive to all his painful enterprises, had been the secu- 
 rity of free speech to the meanest citizen.” (Corn. Nep v 20^5,) 
 
 D 2 
 
C 28 ] 
 
 consideration is, Whether they really have the power so to fm~ 
 prison ? In order to prosecute- this inquiry, we must refer to 
 our Statute Book. In the course of a late discussion, the ar- 
 gument seems to have turned upon the words of Magna 
 Charta, viz. that 66 no man shall be imprisoned, but by the 
 cc judgment of his Peers, or the law of the land.” It was said 
 that these words, u or the law of the land j” let in the privilege 
 claimed by the House of Commons ; because their privileges 
 were part of the law of the land. Let us, for a moment, con- 
 cede this point, and leaving the House of Commons to put 
 what construction they please upon these words of Magna 
 Charta, allow me, Sir, to ask you, what you understand by 
 the words of the Statute of Edward the Third, which 1 have 
 prefixed to this Address, viz. 66 No man , of what estate or 
 u condition that he be , shall be put out of land or tenement , 
 C( nor taken , nor imprisoned, nor disinherited , nor put to 
 u death , without being brought in to answer by due process 
 66 of Law.” Now, Sir, will the House of Commons, look- 
 ing at this Statute, say that they have the power to imprison 
 a man who is not brought in to answer 6( by due process of 
 66 law If they say they have this power, why then they 
 have power to do all the other things prohibited by the 
 Statute ; they can put a man out of his land or tenement 
 they can disinherit him ; they can put him to death ; for the 
 words 66 due process of law ” have a reference to every thing 
 that precedes. What, then, is meant by due process of law ?: 
 Is it such process as the House of Commons can issue? No: 
 for that House can issue no legal process whatever. (( Due 
 ci process of law,” says my Lord Coke*, u is a warrant, or 
 <c mittimus, under hand and seal and the Speaker of the 
 House of Commons has no power to seal. He does not even* 
 pretend to it; for his warrant concludes in these words, 
 <c Given under my hand ,” not under tJl my hand and seal 
 and, therefore, I contend that the warrant of the Speaker of 
 the House of Commons is not that due process of law whick 
 
 * 2 Inst. 52. 
 
[ 29 ] 
 
 the Statute of 28 Edward III. requires, in order to justify the 
 imprisonment , or putting to death , of the subject. 
 
 Sir, I must declare, with all the respect I feel for the House 
 of Commons, as one branch of the Legislature, it appears to 
 me, that in committing to prison persons whom they, in their 
 discretion, deem libellers , they assume^ to themselves the like 
 jurisdiction as was formerly exercised by the Court of Star 
 Chamber. It may be very material to examine this point. 
 The Judges of the Court of Star Chamber were composed 
 chiefly of Privy Counsellors ; so that the very same person s- 
 acted in the double capacity of Legislators and Judges in their 
 own cause, and punished men for pretended crimes against 
 themselves as Ministers ; for they first issued arbitrary Pro- 
 clamations from the Council Board , which had all the force of 
 laws in those days, and afterwards enforced them with cruel 
 penalties in the Star Chamber. But at length, the oppressions 
 of that Court, more particularly the sanguinary penalties 
 which it had been accustomed to inflict upon writers , grew so 
 intolerable, that the people resolved to bear it no longer, and 
 accordingly it was suppressed by an Act of Parliament in the 
 16th year of the reign of King Charles the First. 
 
 Now, Sir, it is necessary to observe, that the Preamble of 
 this Act recites many old Statutes concerning the liberty of the 
 subject, and, among the rest, the before-mentioned Statute of 
 the 28th Edward III. c. 3. It then states that the Judges 
 of the Court of Star Chamber u have undertaken to punish 
 iC where no law doth warranty and to make decrees for things, 
 <c having no such authority , and to inflict heavier punishments 
 (6 than by any law is warranted ” 
 
 Section 2. u And for as much as all matters examinable 
 u or determinable before the said Judges, or in the Court 
 u commonly called the Star Ch^^er, may have their proper 
 ^ remedy and redress , and their due punishment and correc- 
 tion by the common law of the land , and in the ordinary 
 course of justice elsewhere : and forasmuch as the proceed- 
 
 J 
 
[30] 
 
 u ings, censures, and decrees of that Court, have by experience 
 44 been found to be an intolerable burthen to the subject , and 
 44 the means to introduce an arbitrary Power and Govern - 
 64 ment : 
 
 Sect. 3 and 4. 44 Be it enacted, for preventing the like 
 
 44 in time to come, that the said Court of Star Chamber, and 
 44 all jurisdiction, power, and authority, belonging unto, or 
 44 exercised in the same Court, or by any of the Judges, 
 
 44 Officers, or Ministers thereof, be clearly and absolutely dis- 
 44 solved, taken away, and determined; and that from hence - 
 44 forth no Courts Council , or place of judicature, shall be 
 44 erected, ordained, constituted, or appointed within this realm 
 44 of England or dominion of Wales, which shall have, use, or 
 44 exercise the same , or the like jurisdiction as is, or hath been 
 44 used, practised, or exercised in the said Court of Star- 
 44 Chamber 
 
 Sect. 6, 44 And be it further provided and enacted, that if 
 
 44 any Lord Chancellor, or Keeper of the Great Seal of Eng- 
 44 land, Lord Treasurer, Keeper of the King’s Privy Seal, 
 44 President of the Council, Bishop, Temporal Lord, Privy 
 44 Counsellor, Judge or Justice whatsoever, shall offend, 
 44 or do any thing contrary to the purport, true intent, and 
 44 meaning of this law, then he or they shall, for such offence, 
 4£ forfeit the sum of 5001. of Jawful money of England, unto 
 44 any party grieved, who shall prosecute for the same, and 
 44 first obtain judgment thereupon, to be recovered in any 
 44 Court of Record at Westminster, by action of debt, bill, 
 44 plaint, or information, wherein no essoign, protection, wa- 
 44 ger of law, aid, prayer, privilege, injunction, or order 
 44 of restraint, shall be in anywise prayed, granted, or allow- 
 44 ed ; nor any more than one imparlance.” 
 
 Sect. 7. 44 And every person so offending shall likewise for- 
 44 feit and lose to the party grieved, by any thing done, con- 
 44 trary to the true intent and meaning of this law, his treble 
 44 damages , which he shall sustain and be put unto, by mean% 
 
t 31 ] 
 
 w °r occasion of any such act; or thing done, the same to bi 
 %i recovered in any of his Majesty’s Courts of Record at West- 
 
 minster, by action of debt, bill, plaint, or information, 
 “ wherein no essoign, protection, wager of law, aid, prayer, 
 “ privilege, injunction, or order of restraint, shall be in 
 “ anywise prayed, granted, or allowed, nor any more than 
 <l one imparlance.” 
 
 Now, Sir, it must be left for the Judges of the land to deter, 
 tnine whether the House of Commons, by imprisoning a person 
 for a libel , do not assume the like jurisdiction as was formerly 
 practised by the Court of Star-Chamber. It appears to me that 
 they do ; for they act in express contradiction to the Statute of 
 28 Edward III. which declares, that “ no man shall be im. 
 u prisoned, without being brought in to answer by due pro- 
 “ CESS OF law;” and that Statute is enforced by the Act which 
 abolishes the Star-Chamber. The Speaker of the House of 
 Commons either is, or is not, a Judge or Justice. If he be a 
 Judge or Justice, then he comes within the Act of the 16th 
 Car. I. c. 10., and is liable to all the penalties thereof; and it 
 is worthy of observation, that the Act declares no 46 privilege” 
 shall be prayed or allowed. If he be no Judge or Justice, then 
 he can issue no process whatever, and consequently, any im. 
 prisonment by him must be completely unlawful. But the 
 Speaker of the House of Commons is not a Judge or Justice*; 
 lie cannot administer an oath ; he cannot admit to bail ; and I 
 think I have before shewn, that he cannot issue any legal pro- 
 cess ; he can sign, but he cannot seal ; and that process which 
 is signed, but not sealed, is not u due process of law ,” within 
 the words and meaning of the Act of 28 Edward III. c . 3. 
 
 * There is no mention in the Rolls of Parliament of any Speaker of 
 the House of Commons before the 51 Edward III. when Sir Thomas 
 Hungerford filled that office. He is called, “ Monsieur Thomas de Hun - 
 gerford , Chivaler, q'i avoit les Paroles pur les Communes d’ Engleterre.” 
 
 In the House of Commons the Speaker never votes but when there is 
 
[32] 
 
 Sir, it is extremely clear to my mind that the House of Com. 
 mons cannot imprison for a libel, without the libeller is 
 u brought in to answer by clue process of law.” No judge or 
 justice whatever can commit for a libel ; for it must first be as- 
 certained by a jury that the matter complained of is a libel. 
 That very able and distinguished writer, M. de Lolme, tells 
 us in his admirable work on “The Constitution of England* *,’* 
 p. 295, that “ the liberty of the press, as established in Eng- 
 u land, consists therefore, (to define it more precisely) in this; 
 “ that neither the Courts of Justice , nor any other Judges 
 u whatever , are authorized to take notice of writings intended 
 for the press, but are confined tp those which are actually 
 ** printed; and must, in these cases , proceed by the trial by 
 “ Jury” You are aware, Sir, it was formerly determined by 
 the Court of King’s Bench, that the Judge or Court alone were 
 competent to determine whether the subject of the publication 
 was or was not a libel; (see the case of the Dean of St. Asaph, 
 3 T. R. 428.): but the legality of this doctrine having been 
 much controverted, the 32 Geo. III. c. 60. was passed, inti- 
 tuled “ An Act to remove doubts respecting 2 he functions of 
 u Juries in cases of libels .” And it declares and enacts, that 
 on every trial of an indictment or information for a libel, the 
 Jury may give a general verdict of guilty, or not guilty, upon 
 the whole matter in issue, and shall not be required or directed 
 by the Judge to find the defendant guilty merely on the proof 
 of the publication of the paper charged to be a libel, and of 
 the sense ascribed to it in the record. Hence it is the business 
 of a Jury, and not of any Judge whatever, to decide both 
 
 an equality without his casting vote, which in that case creates a majo- 
 rity ; but the Speaker of the House of Lords has no casting vote, but his 
 vote is counted with the rest of the House ; and in the case of an equality, 
 the non-contents or negative voices have the same effect and operation 
 as if they were in fact a majority. (Lords Journ. 25 June, 1661.) 
 
 * This book is recommended to the Public by Junius, as u a perform-, 
 ance, deep, solid, and ingenious.” Pref. 31. 
 
L 33 ] 
 
 tipon thefact and the criminality of a libel : and I contend, that 
 the House of Commons are not a Jury. They are not sworn 
 t£ to give a verdict according to the evidence they cannot 
 examine a witness Upon oath ; nor can they act the part of a 
 jury to give damages. If, therefore, the House of Commons 
 assume to themselves the right of deciding upon a libel, and, in 
 Consequence of such decision, commit the libeller to prison, I 
 incline to think, that they bring themselves within the descrip- 
 tion of a court, exercising the like jurisdiction as was used by 
 the Court of Star-Chamber; for they are accusers and judges 
 in their own cause; and they violate the act of 28 Edw. III. 
 C. 3. which declares 44 that no man shall be imprisoned with - 
 44 out being brought in to answer by due process of law.” 
 
 Sir, I am exceedingly glad to find that this matter is to come 
 before the Judges of the land; and it is a great satisfaction to 
 the public to know, that our present Judges are upright and 
 learned men. In former times, the Judges talked a great deal 
 about privilege ; and some of them have said, that they must 
 not examine into any thing done by either House of Parliament. 
 But I think our present Judges will not agree with this doctrine ; 
 for if they find one branch of the Legislature acting in direct 
 opposition to a law made by all the branches, they must de- 
 clare that one branch to be wrong; and upon this principle, that 
 an Act of Parliament can only be declared void by the same Le- 
 gislative Power by which it was made. They have nothing to 
 do with privilege or custom ; for they know very well, that no 
 usage whatever can counteract the effect of the clear and express 
 words of an Act of Parliament, which declares, that 44 no man , 
 44 of what estate or condition that he be , shall be put out of land 
 44 or tenement , nor taken nor imprisoned, nor disinherited , 
 44 nor put to death , without being brought in to answer by due 
 44 Process of Law.” The twelve Judges must determine «o 
 
 E 
 
[ 34 ] 
 
 cording to law ; they are bound by an oath so to do. It is very 
 clear, that they cannot make a law ; they are not to assume the 
 characters of legislators. It is their province jus dicere , and 
 not jus dare . If, . therefore, they shall determine, that, not- 
 withstanding the Act of Edward III. the House of Commons 
 may imprison the people at their pleasure, in the same breath 
 they will pronounce,* that the House of Commons can (as I said 
 before) do all the other things which are prohibited by that 
 statute, viz. they can put a man out of his land or tenement ; 
 they can disinherit him; and, finally, they can put him to 
 death ; and if the Judges shall so determine^ then there will no 
 longer be occasion to seal writs , and to swear in Juries; it 
 will no longer be necessary for them, as Judges, to sit in West- 
 minster-hall, and to go the circuit; the liberty of the subject 
 will be destroyed ; and this country will become one of the most 
 wretched on the face of the habitable world ! ! ! 
 
 Sir, before I close this address, I must beg. to say a few 
 words with regard to the legality of breaking open houses in 
 order to arrest a person under a warrant from the Speaker of 
 the House of Commons. I will confine myself to an examina- 
 tion of those cases where houses may be broken open, without 
 
 * Formerly the Judges held their places durante bene placito, and 
 while that was the case, it is easy to conceive, and indeed, history in- 
 forms us, that the administration of justice was not so impartial as it ought 
 to be. This, no doubt, gave occasion to the remark which Mr. Selden 
 has made in his Table Talk, where he says, that “ the King’s Oath is 
 ‘‘ not security enough for our property, for he swears to govern accord- 
 “ ing to law j now the judges are the interpreters of the krw ; and ivhat 
 “ judges can be made to do, we know.” But, by the Stat. 13 W. III. 
 e. 2. it was enacted, that the Judges should retain their places quamdiu 
 bene se gesserint ; and by the 1. Geo. III. c. 23. they are continued in 
 their offices during their good behaviour, notwithstanding any demise of 
 the Crown, (which was formerly held immediately to vacate their seats,) 
 and their full salaries are absolutely secured to them during the continu- 
 ance of their commissions- 
 
[ 35 ] 
 
 repeating what I hare before said concerning a warrant under 
 the hand only. I need not tell you, Sir, that the house of 
 every man is to him as his castle, as well for defence 
 against injury and violence as for his repose, according to the 
 maxim, Domus sua cuique est tutissimum refugium. This, I 
 say, is the general maxim of law ; but still I know there are 
 some cases where the privilege will be of no avail. In a collec- 
 tion of the Penal Statutes, made by that very able Magistrate, 
 Mr. Addington, I find it laid down, that houses may be broken 
 open in the following cases ; the person signifying first the oc- 
 casion of his coming, and requiring the opening of the doors, 
 and being refused ; viz. First , in treason, felony, or suspicion 
 thereof : 2dly, to apprehend any person who hath dangerously 
 wounded another, being freshly pursued: 3dly, an affray being 
 in a house, the constable may break it open to keep the peace: 
 4thly, upon a forcible entry or detainer found by an inqui- 
 sition : to apprehend any person upon a capias utlagatum, or 
 by fine; or upon process of excommunication, or upon a 
 warrant of the peace, or good behaviour : Gthly, upon a reco- 
 very in a real action, the Sheriff may break them open to 
 deliver possession: 7thly, and generally, in any case, where 
 the King is party, or hath any interest ; for no man’s house 
 shall protect him against the King. (See lasted; title u Houses” 
 in the note.) 
 
 Now, Sir, I cannot find, that the case of Sir Francis 
 Burdett comes within the description of any of those here men- 
 tioned. Supposing even that the warrant had been issued by 
 a Judge, or Justice, still the officer executing it would not have 
 been justified in breaking open the house of Sir Francis. 
 For, suffer me to ask, what offence has he committed ? Has he 
 been guilty of treason or felony ? No. Has he committed a 
 breach of the peace ? No. He has, it is said, published a libel ; 
 and a libel is 120 breach of the peace. This has been most so- 
 
 E 2 
 
[ 36 ] 
 
 lemnly determined ; and I will here quote the words of Lord 
 Chief Justice Pratt, in delivering the judgment of the Court in 
 the case of u the King versus Wilkes, Esq. Member of Par, 
 “ liament for Aylesbury.’* 2 Wils. 151 : We are all of 
 
 44 opinion that a libel is not a breach of the peace ; it tends to 
 « a breach of the peace, and that is the utmost; but that 
 <£ which only tends to the breach of the peace cannot be a 
 u breach of it. I cannot find that a libeller is bound to find 
 u surety of the peace in any book whatever, nor ever was 
 <£ in any case, except one, viz. the case of the seven Bishops, 
 <• where three Judges said, that surety of the peace was re, 
 44 quired in the case of a libel. Judge Powell, the only 
 a honest man of the four Judges, dissented, and I am bold to 
 44 be of his opinion, and to say, that case is not law ; but it 
 44 shews the miserable condition of the state at that 
 44 TIME. Upon the whole, it is absurd to require surety of 
 44 the peace, or bail, in the case of a libeller.”* 
 
 I shall now beg leave to conclude.— I am sure, Sir, there is no 
 man that can have a greater respect than yourself for the laws of 
 your country ; no man who can have a more anxious concern for 
 the liberty of the subject. Indeed it is astonishing how 
 rery tender the law is in this particular. I remember a case 
 where Sir Henry Ferrers having been arrested by virtue 
 of a warrant, in which he was termed a Knight , though 
 he was a Baronet, Nightingale, his servant, took his part, 
 and killed the officer; but it was decided, that, as the 
 44 warrant was an ill warrant, the killing of an officer in 
 44 executing that warrant could not be murder, because no 
 
 * The same noble Judge in delivering the judgment of the Court in 
 the case of the General Warrants, declared, “ that our law is wise and 
 « merciful, and supposes every man accused to be innocent, before be is 
 «• tried by his Peers.” 2 Wils. 292. 
 
good warrant ; wherefore he was found not guilty of the 
 murder and manslaughter.” (See Croke’s Rep. P. 111. 
 p. 371.) Let, then, the people dread any encroachment on 
 their liberties. Let them not be deterred from discussing, 
 with temper and decency, any question which respects their 
 rights and immunities, for my part, I shall not be alarmed 
 at any epithet of reproach which may be cast upon me. 
 I know that I am a loyal and faithful subject ; but I also 
 feel, that there is a duty which every man owes to the 
 people as well as to the State. “ When the liberty of the 
 subject is invaded ,” says that noble patriot, Chief Justice 
 Holt, “ it is a provocation to all the subjects of England ” 
 In a word, it is the business of every individual to contri- 
 bute as much as he can towards the preservation of the li- 
 berties of the whole people; and it behoves every man fo 
 remember, with an excellent writer, that 66 as it is more 
 ( " ewy to pull down than to build up , so experience con - 
 “ vinces us , that of all labours the restoration of liberty 
 h has ever been found the most difficult.” 
 
 With sentiments of the highest respect, 
 
 J. have the honour to be, Sir, 
 
 Your very obedient servant, 
 
 PUBLICOLA. 
 
LETTER IV. 
 
 TO 
 
 Sir SAMUEL ROMILLY, Knt M. P. 
 
 « XT SEEMS TO ME TO BE A NOBLE THING, BOTH TO BE FREE MYSELF, AND TO 
 “ LEAVE FREEDOM TO MY CHILDREN.” 
 
 Cyrus apud Xenopli. 
 
 SIR, 
 
 It is with infinite satisfaction I perceive you have 
 stated to the House of Commons, that “ the opinions which 
 “ you had expressed on the legality of the warrant under 
 u w hi c h Mr. Jones now suffers, is still perfectly unaltered by 
 « any thing which you have heard.’* I observe with pleasure, 
 that 44 you wished to have had an opportunity of re-stating 
 66 some of those opinions which you had formed only after 
 “ serious thought, had delivered with much and anxious sin - 
 « cerity , and which you still retain as fixedly and firmly as 
 .<( ever.” Upon looking back to see more precisely what 
 those opinions are, I find it reported, that “ you entertain a 
 44 great doubt whether the House of Commons has a right to 
 44 commit for a breach of privilege in the case of a libel on the 
 
 44 conduct of one of their Members.” You think, that “ the 
 
 44 House has a right to commit in a great many cases ; such as 
 44 where their proceedings arc interrupted; where the people, 
 44 by hissing or otherwise, insult Members coming to the 
 
[ 39 } 
 
 44 House; where they threaten Members if they vote on a par- 
 44 ticular side; and many others of the same nature: but as to 
 44 libels published on the past conduct of Members, and not 
 44 on any proceedings at the moment going on before the 
 44 House, you have great doubts as to the right of committing^ 
 44 because you conceive it to b q against the first principles of 
 44 justice ; because the House act as their own Counsel , Jury , 
 44 and Judge ; because they are the accusers and the punishers; 
 44 the House are the judges of the* law, and of the fact ; and 
 44 the party is committed during their pleasure.*” 
 
 * As a great deal has been urged in favour of the privilege of the 
 Commons to imprison for a libel, by way of analogy to the practice of 
 Courts of Justice, which, it is said, may commit for contempts, I shall 
 beg to add a few words on that part of the subject. Lord Chief Baron 
 Gilbert has stated, that “ it is one part of the law of the land to commit 
 “ for contempts, and confirmed by the Stat. Westm. 2, c. 39.” (Hist, of 
 Com. Pleas, p. 25). Now, I must declare, that, after looking into that 
 Statute, I cannot find any thing to warrant his assertion. All that the 
 Statute says, is, that many great men (who in those days had castles, 
 fortresses, and liberties, wherein they used to secure themselves) had re- 
 sisted the Sheriff in executing the King’s writs; which, creating great 
 inconvenience, the Sheriff is ordered to remove all obstructions to the 
 execution of the process. The Act, therefore only applies to persons 
 resisting the King’s writs, and does not say a word about any other con- 
 tempt. I must confess, that I cannot understand how Courts of Justice 
 can imprison for a libel , without infringing upon Magna Charta. All 
 that they can do, in a constitutional manner, is,, in my opinion, to imprison 
 such persons as commit contempts in facie curia; ; or, in other words, 
 who occasion an immediate obstruction to the administration of justice, 
 and, as such, are disturbers of the peace. But, even in those cases* I 
 conceive that the Courts cannot constitutionally imprison during their 
 pleasure y but that the offender must afterwards be brought in, to answer 
 by due process of law, and receive sentence of punishment from a jury. 
 For, though the Stat. Westm. 2, c. 39, declares, that such persons as 
 shall be convicted of resisting the Sheriff, shall be punished at the King's 
 pleasure y yet my Lord Coke, in his exposition of these words, says, “ That 
 “ is, according to that which shall be, upon due proceeding, adjudged 
 “ coram rege in the King’s Court of Justice; for no man can be punished 
 by absolute power, but secundum legem , et cousuetudinem Jnglia. as 
 
[ 40 3 
 
 Sir, I think it hardly necessary to repeat, that' I am total!/ 
 unacquainted with Mr/ Jones, and that I am induced to trouble 1 
 you with my remarks from no other motive than that whichr 
 must animate the whole body of the people — u a people ” 
 (as you very justly observe) u who love their liberties.' 1 
 
 In my former address, I expressed much satisfaction, that 
 this question was to come before the Judges of the land. Since 
 that time, I find that pamphlets have been published, and 
 opinions are spread abroad, that the Judges have no power to 
 
 44 hath been said before, in the exposition of Magna Charta, and else- 
 44 where hath been often said.” (2. Inst, 454.) If a Judge could im- 
 prison for a libel, he must necessarily become what our law never war- 
 
 rants, that is, a Judge in his own cause; and if he could imprison during 
 
 his pleasure, he would be possessed of an absolute power, which our Con- 
 stitution does not allow. The fact is, that great and good men have, at 
 all times, been very tender of the liberty of the subject. Chief Baron 
 Gilbert says, that “ when the Common Pleas proceeded on Clausum 
 * l * 4 * fregit, the defendant was under the same disadvantages as when he was 
 44 arrested on a Latitat .” Upon which the annotator (who was well ac 
 quainted with the laws and constitution of his country,) observes — 
 44 Here the Chief Baron candidly allows, that the arrest by Clausum fre- 
 44 git in the Commons Pleas, and by the Latitat in the King’s Bench, 
 “ did lay the defendant under disadvantages. If the Chief Baron had 
 “ said, 6 under unwarrantable oppressions in open violation of King 
 
 4 John’s Great Charter, not only by subverting and perverting the an- 
 cient process of the law in trespass, but also by an arbitrary and bar- 
 44 barous abuse of special bail :’ If the Chief Baron had stigmatized this 
 44 process by Latitat with the seemingly harsh, but richly merited terms 
 “ above mentioned, as Sir Orlando Bridgeman, Chief Justice of the 
 44 Common Pleas did, when the Latitat was first introduced into the 
 44 King's Bench, he would perhaps have done no more than an honest 
 44 indignation, at the innovation, would warrant.” (Hist, of Com. Pleas, 
 3d. ed. p. 183.) As for discretion , I am for investing the Judges with as 
 little as possible. We know, that some men view matters in a very dif- 
 ferent light from what they are seen by others. 44 The discretion of the 
 44 Judge,” (says- Mr. Gibbon very truly) 44 is the first engine of tyranny; 
 44 - the laws of a free people should foresee and determine every question. 
 
 that may probably arise in the exercise of power and the transactions 
 
 44 of industry.” (Decline and Fall, Ike. v. 8. p« 111.) 
 
£ 41 ] 
 
 Interfere in die matter. Passages are cited from my Lord Coke, 
 4n his fourth Institute, to shew, that 44 the Judges ought not to 
 44 give their opinion of a matter of Parliament, because it is 
 44 not to be decided by the common law,” &c. ; and the case 
 of Brass Crosby, which has been so often mentioned, is insisted 
 upon as a case in support of this doctrine. 
 
 Now, Sir, I admit, that my Lord Coke tells us, 44 the Judges 
 «* 4 ought not to give their opinion of a matter of Parliament;” 
 -but, suffer me to ask, are we to be bound by this mere dictum 
 of my Lord Coke, great and learned as he was? The intelligent 
 and very laborious Mr. Prynne, who detected and exposed 
 many errors and absurdities of that Judge, in respect to matters 
 of Parliament, has left us an observation on this dictum ; he 
 says., 44 though the Judges cannot give an opinion in the 
 4 “ Parliament or Lords’ House, sitting the Parliament; yet, 
 44 when matters or Privilege of Parliament com & judicially be- 
 44 fore them in the Courts where they sit as Judges , there they 
 44 may, do, and ought to judge them; as in the cases of 
 44 Bartholomew Done against John Walsh, Mich. 12. E. 4. 
 44 rot. 20.. in the Court of Exchequer; and of John Ryver 
 44 against Robert Cosyn, Hil. 14. E. 4. rot. 7. and sundry 
 4c other cases,” (See 44 Animadversions on, and Amendments 
 44 of, the Fourth Part of the Institutes,” p. 16.) In the case 
 of Brass Crosby, the Counsel, though men of considerable 
 learning and ability, do not, however, appear to have looked 
 into Prynne on that occasion* ; for I find the Chief Justice 
 
 * Sir Franeis Bacon in his book of the Advancement of Learning, 
 speaking of cases omitted in law, fof. 38, very justly says, that “ The 
 4 ‘ narrow compass of man’s wisdom cannot comprehend all cases which 
 time hath found out, and therefore cases omitted and new, do often. 
 ** present themselves.” 
 
 F 
 
r-42 3 
 
 (De Grey) observes, that u the Counsel at the Bar have not 
 44 cited one case where any Court of this Hall ever determined 
 44 a matter of privilege which did not come incidentally before 
 66 them:” and then he adds, 44 the present case differs much 
 (( from those which the Courts will determine ;, because it does 
 66 not come incidentally before us, but is brought before us 
 4 ‘ directly , and is the whole point in question ; and to deter- 
 44 mine it, we must supersede the judgment and determination 
 44 of the House of Commons, and a commitment in execution 
 44 of that judgment.” With very considerable surpme, inter- 
 mixed with no small portion of regret, I observe, that Mr. 
 Justice Blackstone acquiesced in this doctrine, notwithstand- 
 ing he tells us in his valuable Commentaries, (vol. 1. p. 166,} 
 that 44 when a letter was written by a Speaker to the Judges, 
 44 to stay proceedings against a privileged person, they rejected 
 44 it, as contrary to their oath of office*.” What this oath of 
 
 * It is impossible not to perceive the fallacy of some of the arguments 
 used by the Judges in the case of Brass Crosby. Gould, Justice, said, 
 that “ the Resolution of the House of Commons is an adjudication.” 
 But surely the learned Judge must have known, that no resolution of the 
 Commons can supersede the written law of the land. An order 
 made by that House, or by the House of Lords, does not bind the liber- 
 ty of the subject, as appears in 2 Inst. 47. Blackstone, Justice, said, 
 “ How preposterous is the present murmur and complaint ! Are not the 
 “ Commons chosen by the People ?” To this I will answer, in the words 
 of the Earl of Chatham, ir\. the case of Mr, Wilkes: “ When the People 
 “ choose their Representative's , they never mean to convey to them a powet 
 “ of invading their rights , or trampling upon the liberties o f those whom 
 “ they represent . What security would they have for their rights, if 
 “ once they admitted, that a Court of Judicature might determine every 
 (t question that came before it, not by any known positive law, but by 
 “ the vague, indeterminate, arbitrary rule of what some are pleased to 
 call the tvisdom of the Court?’’ (Debates, 1770.) But Mr. Justice 
 Blackstone said, ‘ It is our duty to presume the orders of that House, 
 and their execution, are according to law,” Indeed! and this from d 
 Judge, who is sworn to interpret the Law' ? — A Judge is not to presume , 
 
C 43 ] 
 
 office is, almost every man must know; it is 44 to administer 
 44 justice according to lazo, without having regard to any per- 
 44 son— without letting to do right for any letters or comrr&nd- 
 44 merits which may come to them from the King, or from any 
 44 other, or by any other cause and it was, no doubt, from 
 a high respect and reverence for this oath, that Lord Holt 
 (one of the most upright Judges and noble Patriots that 
 ever sat upon the bench,) told the Speaker, and a select 
 number of the House who went in person to the Court 
 of King’s Bench, in order to deter him from proceeding 
 in the Aylesbury case — 44 I sit here to administer justice : 
 
 4 i IF YOU HAD THE WHOLE HOUSE OF COMMONS IN YOUR BELLY, 
 44 I SHOULD DISREGARD YOU; AND IF YOU DO NOT IMMEDI- 
 44 ATELY RETIRE, I WILL COMMIT YOU, MR. SPEAKER, AND 
 
 44 those with you.” — I contend, then, that it would be ab- 
 surd, and, I think, no less than a prevarication with consci- 
 
 but to investigate ; not' to delay, but to execute the law. To presume 
 that an order made by the Commons is a good order, is to presume that they 
 can order nothing that is wrong; and to presume that, without any in- 
 quiry or relief, is a strange doctrine for a Judge who presides in a Court, 
 where he is bound by an oath to determine according to the law s of the 
 land. If an order of the House of Commons, as one branch of the legis- 
 lature, could operate as a law, then an order of the House of Lords, as 
 another branch of the legislature, w'ould pass for a law also ; but the 
 House of Lords cannot, as I have just shewn, make any order to bind 
 the liberty of the subject. In the case of the King and Queen, v. 
 Knowles, (cited more at large post, pag. 8 a,) it is very truly said by 
 Samuel Eyre, Justice, that the Judges can “judge of an act of Parlia- 
 “ ment, what is one; that an act by King and Lords is not a good one; 
 “ and so they may judge of an order of the House of Lords, whether 
 M the concurrence of the other estates of Parliament, or one of them, be 
 “ requisite.” And, that the courts of law can take judicial cognizance 
 of the proceedings in Parliament will be shewn more fully in the course 
 of the succeeding pages, 
 
 F 2 
 
[ 44 J 
 
 euce, for the Judges to say, that they are not to give relief to a 
 British subject, merely because the injury is done by the House 
 of Commons; which House is only one branch of the Legis- 
 lature, and consequently cannot , ought not , must not break 
 through any act which has been solemnly done by all the 
 three branches thereof. Besides, the Judges must remember, 
 that by their conduct the honor of the King is affected. The 
 King is bound by his Coronation Oath to preserve and keep all 
 the laws of the land, and one of those laws is, in the words of 
 Magna Charta, 44 I'Ve zcill sell to no man , zee zaill deny to no 
 44 man, nor delay right or justice which words, the King, 
 in judgment of law, is ever repeating through his representatives in 
 all his Courts. It was, therefore, an excellent saying of thatglorious 
 Prince, Edward III. when he caused Thorpe, Chief Justice 
 of the King’s Bench, to be hanged for taking, a bribe; 
 44 That he being intrusted , as the King's Deputy , to adminis- 
 44 ter justice in that Court , he had , as much as in him lay , 
 4C broken that solemn oath , which his Majesty made to his 
 44 people at his Coronation .” Yes, Sir, I maintain, that Mr. 
 Prynne is right, and that the Judges can and ought to determine 
 oil matters or privilege of Parliament when they come before 
 them judicially in the Courts where they sit as Judges ; and if 
 they could not do so, how wretched would this country be if 
 ever it should fall under the government of a wicked Minister, 
 and a corrupt House of Commons? What security, I ask, 
 would the people have for their liberties, their property, their 
 lives ? What inducement would there be for them to remain in 
 this country? Is it the soil , or the atmosphere al one, that ren- 
 ders England dear to us? No; it is the confidence which every 
 man feels, that England is 44 the land of liberty .” This is 
 the charm which stimulates his industry, and sweetens his re- 
 pose; this is the pride, the glory of his heart. In what, then, 
 does liberty consist? Not, indeed, in the power of doing every- 
 thing. which a man’s passions urge him to attempt, or his 
 
[ 45 ] 
 
 strength enables him to execute; but, as I conceive, in the 
 power of doing every thing that is not forbidden by some 
 knozvn and certain law. 44 Where there is no law , there is 
 44 no freedom says Mr. Locke; and therefore the grand dif- 
 ference between Governments that are arbitrary , and such as 
 are free , is, that in the former the will, in the fatter the law,, 
 governs. You, Sir, who are not merely a lawyer, a casuist, 
 but also a polite and learned scholar — you will remember, that 
 this just distinction between tyranny and freedom is admirably 
 drawn by Theseus, in his answer to the Theban Heiald, icf 
 44 The Supplicants” of Euripides : — 
 
 : ■■ 
 
 “ Of all the evils that infest a state, 
 
 “ A Tyrant is the greatest: there the laws 
 “ Hold not one common tenor; his sole will 
 “ Commands the laws, and lords it over them; 
 
 “ This pow’r thou hast not. Where the laws are written, 
 
 “ The weak , the rich, have all one equal course 
 “ Of justice; and the lower ranks, when wrong’d, 
 
 “ Know their redress against injurious greatness ; 
 
 “ And penury , with justice on its side, 
 
 “ Triumphs o’er riches: this is to be free.” -Potter, 1. 485. 
 
 „ ...... ..... 
 
 And such, Sir, is the freedom of England. We have the 
 same laws for the rich and the poor ? and it is notin the power 
 even of the King himself to punish the meanest of his sub- 
 jects, but by the ordinary forms of law. In our happy Con- 
 stitution there are no hidden reserves of authority, to be 
 let out on occasion, and to overflow the rights and liberties 
 of the people : the law is the proper and only rule of con- 
 duct both for the King and the People. Our Kings can 
 neither make nor change laws ; they are under the law, and 
 the law is not under them. The King of England cannot 
 dispense with the laws of the land; for the very first ar- 
 ticle of the glorious Bill of Rights declares, that 44 the pre- 
 44 tending power of suspending or dispensing with laws, or 
 44 the execution of laws, by legal authority r , without consent 
 
C 46 ] 
 
 u of Parliament, is illegal .” If, therefore, a man commit 
 high treason^ what is to be done? Can the King give orders 
 for his execution before he is brought in to answer (as the 
 Statute 28 Edward III. c. 3. requires) 44 by due process of 
 44 law ?” No, he cannot do so; for that would be to dis- 
 pense with the law ; it would be to suspend that most noble 
 privilege of Englishmen — 44 the trial by Jury.” Mr. Justice 
 Blackstone says (and here I cannot help repeating my wish 
 that he had always been equally consistent), that 44 not 
 44 only the substantial part, or judicial decisions of the law, 
 44 but also the formal part, or method of proceedings cannot 
 44 be altered but by Parliament ; for if once those outworks 
 44 were demolished, there would be an inlet to all manner of 
 44 innovation in the body of the law itself.” (Com. vol. 1. 
 p. 142.) By what authority, then, permit me to enquire, 
 can the House of Commons pass that barrier which the King 
 himself is not suffered to do ? Is his prerogati ve to be re- 
 strained within certain limits, clearly known, and fully ascer- 
 tained; and are they to assume the exercise of privileges which, 
 by their own confession, are uncertain and undefined? Is 
 the King, in the highest offence that can be done to Ma- 
 jesty, namely, in the case of treason, bound to proceed 
 by the trial by Jury? and shall the House of Commons, when 
 they are offended, proceed according to their pleasure* ? Sir, 
 if the House of Commons can do this, then I deny that we 
 live in a land of freedom.; we have been all along deceived ; 
 we do not possess that Constitution we imagined. If, I say, 
 
 * If the King were to exercise the arbitrary power of committing at 
 his pleasure, and dw'ing his pleasure,, what would not the Common# 
 themselves exclaim ? In the time of James II. they expressed themselves 
 as follows: “ here is tyranny, here is despotism, here is an absolute mo- 
 “ narch governing not only without law, but against law and such 
 expression caused that sovereign to abdicate the throne, and produced 
 the glorious Revolution. 
 
[ 47 ] 
 
 the House of Commons can imprison the people, not accord- 
 ing to the ordinary forms of law, but at their own discretion , 
 who knows but they may, at some future period, treat the 
 subject very little better than was practised in the arbitrary 
 proceedings of the Ostracism by the ancient Athenians, or 
 by the still more oppressive lettres-de-cachet of modern 
 France ? Any man that shall publish writings offensive to the 
 Ministry may be brought before the House ; and they (as 
 3 'pu observe) 44 are to act as their own Counsel , Jury , and 
 
 44 Judge i they are to be the accusers and the punishers ; 
 
 44 they are to be the Judges of the law and of the fact ; and 
 44 the party is committed during their pleasure ! ! /” 
 
 May the firmness of our laws, and the integrity of our 
 Judges, forbid them this power 1 May the liberties of the 
 People, and the spirit of the Constitution, remain un- 
 shaken ! No man respects the House of Commons more than 
 I do; but I dread any encroachment (from whatever quar- 
 ter it may be made) oil the liberty of the subject. The 
 question is now to be determined by the Judges; they 
 
 have power by law , and are bound by an oath to admi- 
 
 nister justice, 44 freely without sale — fully without any de- 
 44 nial ” Every man is concerned ; the liberty, the pro- 
 perty, the life of every individual is involved in their de- 
 cision. The country are looking on, but with calmness and 
 fidelity : the people respect the law, for they know that 
 
 £ 4 < TIIE LAW is GREAT, AND WILL PREVAIL. 1 * 
 
 I have the honour to be, Sir, 
 
 Your very obedient Servant, 
 
 PUBUCOLA. 
 
LETTER V. 
 
 TO 
 
 THE FREEHOLDERS 
 
 OF THE 
 
 COUNTY OF MIDDLESEX. 
 
 «* Remember, O my Friends, the Laws, the Rights, 
 
 “ The gen’rous plan of pow’r, deliver’d down 
 “ From age to age, by your renown’d forefathers, 
 
 “ So dearly bought, the price of so much blood ! 
 
 “ O ! let them never perish in your hands, 
 
 “ But piously transmit them to your children.” 
 
 Cato, Act III. Scene 5. 
 
 GENTLEMEN, 
 
 As I have always considered, that whatever is of a public 
 nature the public have a right to enquire into, X trust you 
 will excuse the liberty I take of addressing myself to you 
 at this alarming crisis, when our ancient Rights and Privi. 
 leges are in the utmost danger of being destroyed. So 
 much, indeed, has already been said upon this subject, that 
 little remains for me to say; but if it were ever so little, 
 I should not think myself justified in withholding it from 
 my fellow.subjects. 
 
[49] 
 
 Gentlemen, the House of Commons, in defiance of thi 
 written law of the land, have assumed the power of im- 
 prisoning a subject without the intervention of a Jury. 
 They say, that they have exercised this power for many 
 ages, and that the length of the practice is sufficient to 
 establish the justice of it. They present us with precedents 
 drawn from the very worst of times, when the original liber- 
 ties of this nation were eclipsed by the usurpations of Pre- 
 rogative >• and then they contend, that because these arbi- 
 trary proceedings have never been resisted before, they 
 ought not to be resisted at this moment*. These, to be 
 sure, are most persuasive arguments ; but, in my poof 
 judgment, they will never convince the people of this 
 country, as long as they possess the u Great Charter of Li* 
 “ berties ;”—t he Statute of 28 Edward 3. c. 3.”— the 
 Statute of Marlbridge — and u the Bill of Rights .” 
 But, notwithstanding these old and explicit laws, — not- 
 withstanding the toils and dangers which our generous an- 
 
 * As to the Resolutions of the House of Commons, they amount to 
 nothing; for if a resolution made by them were to bind the subject, 
 then we must admit that a resolution by the Lords, and also a resolu- 
 tion by the King, would have equal effect ; and if that were the case, 
 we should perhaps have three separate resolutions to distract and enslave 
 the people. But no resolution of any of the three estates can operate 
 as a law to bind the subject, for to this purpose they must all join. 
 As for the Precedents which the Commons have adduced, where they 
 exercised the power of imprisoning, I do not see what they pan avail.—' 
 “ Precedents (says Mr. Selden) are good proofs of illustration or con- 
 “ firmation, where they agree with the express law, but they can never 
 4 ‘ be proof enough to overthrow any one law, which the Whole legts- 
 lature have enacted.” 
 
 When the words of Magna Charta are expounded, according tO their true 
 meaning, the Stat. of 25 Edward I. c. 2* will set aside all the Precedents 
 which the Commons have brought forward to support their Privilege 
 to imprison at pleasure. “ And we will, (says that Stat.) that if 
 any judgment be given from henceforth, contrary to the points of the 
 taid Charter, by the Justices, it shall be unfan* and holdsnfor nought,” 
 
 €r 
 
[ 50 ] 
 
 Cfistors overcame in order to procure, and the noble strug- 
 gles which the people are now making to preserve them, — 
 we are gravely told by some Members of the Honourable 
 House, that 44 they know of no privilege claimed by that 
 44 House which it does not possess : they know of no power 
 44 exercised by it which it has not the right to employ .” 
 This wgs the language of Mr. Ponsonby with regard to 
 your Petition, though he voted that it should be received : 
 and he added, that 44 he regretted the ignorance which seemed 
 44 to influence the people upon this subject .” In the debate 
 upon 44 Sir Francis Burdett’s notice to the Speaker,’’ Sir 
 Arthur Pigott is reported to have said, that 44 notwith - 
 44 standing all the daily trash which was published , there was 
 44 no doubt that the House had a right to punish those who 
 44 libelled them in their legislative capacity and he honours 
 those persons who maintain a different opinion, ^with the title 
 of 44 instigators of anarchy ,” — 44 adherents of the new 
 44 school,” — and u contemptible pretender s.’’' 1 Epithets of this 
 nature are certainly enough to alarm the most courageous ; 
 but as I have freely and frequently delivered my sentiments 
 upon this subject, I cannot be persuaded to part with my 
 reason, even by the grandiloquence of men, who have long 
 been accustomed viriim volitare per ora. Mr. Ponsonby 
 regrets the ignorance which influences the people upon this 
 occasion. But, Gentlemen, are we really so ignorant as ho 
 supposes? Have we never read Magna Charta] which is our 
 political Bible ? Have we never read what that noble pa- 
 triot, the Earl of Chatham, said in the House of Peers, in 
 the case of Mr. Wilkes? 44 My Lords, the Constitution is 
 44 not a vague or loose expression; we all know what it is ; 
 44 that the first principle of it is, that the subject shall not be 
 44 governed by the arbitrium of one man, or body of men 
 44 ( less than the whole Legislature }, but by certain laws, to 
 44 which he has virtually given his consent, which are open 
 44 to him to examine, and not beyond his ability to under - 
 “ stand.” And again, 44 The Noble Lord (Mansfield} 
 
C 51 ] 
 
 cc assures us, that he knows not in what code the law of 
 « Parliament is to be found ; that the House of Commons, 
 u when they act as Judges, have no law to direct them 
 a but their owij wisdom; that their decision is law; and if 
 they determine wrong, the subject has no appeal but to 
 44 Heaven. 
 
 ce What then, my Lords, are all the generous efforts of 
 a our ancestors? Are all those glorious contentions, by 
 « which they meant to secure to themselves, and to trans- 
 “ mit to their posterity, a known law, a certain rule of 
 living, reduced to this conclusion, that instead of the ar« 
 bitrary power of a King, we must submit to the arbi - 
 trary power of a House of Commons ? If this be true, 
 “ what benefit do we derive from the exchange? Tyranny, 
 44 my Lords, is detestable in every shape ; but in none so 
 u formidable as where it is assumed and exercised by a 
 44 number of tyrants. But, my Lords, this is not the fact; 
 44 this is not the Constitution ; we have a law of Parlia- 
 44 ment ; we have a code in which every honest man may 
 44 find it — we have Magna Charta ; we have the Statute- 
 44 book, and the Bill of Rights.” (Debates, 1770.) 
 
 Gentlemen, it is astonishing, that any man can think the 
 House of Commons alone has power to dispense with the writ- 
 ten laws of the land. Here is the ignorance which is charged 
 upon others; here is the want of a knowledge of the most im- 
 portant nature — a knowledge of the Constitution, without 
 which no Senator can possibly be fit for his office.^ The Mem- 
 bers of the House of Commons are delegated by the people to 
 watch, to check, and to avert every dangerous innovation on 
 their liberties. Their power has no other end than preserva* 
 
 * Vide Cic. de Leg. 8, 18. 
 
 G 2 
 
t* *l 
 
 tion ; and therefore they can never have a right to destroy, 
 to enslave, or designedly to impoverish, the subject.* They 
 are empowered to act for the people, not to act against them ; 
 they are trustees; and, as such, are accountable to the peo- 
 ple, who are their principals, for the faithful discharge of their 
 duty.+ They are not to exceed the powers with which they 
 
 * See Locke’s Essay on Civil Government, c. 11, Of the Extent of the 
 Legislative Power. 
 
 + However offensive the term maybe, I must declare, that the Mem- 
 bers of the House of Commons are only the servants of the people ; and 
 formerly they received wages for the services they performed. Mr. 
 Prynne says, that those wages had no other origin than that principle of 
 natural equity and justice : they who receive the benefit ought also to sup- 
 port the burthen. Put a writ was framed to enforce the payment of 
 these wages ; and what Mr. Prynne informs us is remarkable : “ That 
 4 ‘ the first writs of this kind extant on our records are co&val with our 
 ie Kings’ first writs of summons, to elect and send Knights, Citizens, and 
 “ Burgesses to Parliament ; both of them being first invented, issued, 
 u and recorded together in 49 Hen. Ill, before which there are no me- 
 “ morials nor evidences of either of those writs in pur Historians or 
 
 * c records.” (See his 4th Reg. of Pari. Writs, p. 2.) The first writs 
 directed the Sheriff to levy, from the electors of the county, and to 
 pay the Knights their reasonable expenses in coming to the Parliament , 
 remaining there , and returning to their respective homes. But in the 16th 
 Edw.JI. the expenses of the Representatives were reduced to a cer- 
 tain sum by the day, viz. four shillings a day for every Knight, and two 
 shillings for every Citizen and Burgess. Two shillings a dayfwasso con- 
 siderable a sum in ancient times, that there are many instances, w r here 
 boroughs petitioned to be excused sending Members to Parliament, re- 
 presenting, that they were engaged in building bridges or other publie 
 works, and therefore unable to bear such an extraordinary expense. 
 And it is somewhat remarkable, that from 33 Edward III. and uniformly 
 through the five succeeding reigns, the Sheriff of Lancaster returned, that 
 the Citizens and Burgesses n ithin the County of Lancaster , ought not , and 
 could noty on account of their poverty and inability , send any Citizens or 
 Burgesses to Parliament. (Pryn, Brev. Pari, Red. p. 235 to 238; aqd 
 Christian’s Note on Comm. 1. p. |74.) 
 
[ 53 ] 
 
 have been entrusted; and, therefore, if they want to imprison 
 the people, (contrary to the statute of Edward the Third, 
 which declares that 44 no man shall be condemned without being 
 <c brought in to answer by due process of law ,”) let them pro- 
 duce their authority. Will they say, that the people have 
 given them this power? Will they pretend that the people have 
 surrendered to them their ancient privilege of a trial by jury? 
 Surely the Members of the House of Commons will not advance, 
 that the people have alienated their liberties. They will not, I 
 hope, suppose that Englishmen are become so indifferent, that 
 they can see an individual imprisoned, contrary to law, with- 
 out trembling for the freedom of the whole nation. I trust 
 that my countrymen will never betray themselves. I have read 
 of many nations, and have in my own days seen some, who 
 have lost their liberties by their own fault; but I never heard 
 or read of more than one people (the Cappadocians) who re- 
 fused the liberty which they might have enjoyed. (Vide Strabo, 
 lib. 12.*) But the people of England are not yet inclined to 
 part with their liberties ; and, therefore, their Representatives 
 have no more right to betray them, than their Kings have to 
 infringe them. Why should the House of Commons have a 
 power which the King himself does not possess ? The law is to 
 be the only rule and measure of his government ; and upon thi* 
 
 Andrew Marvell, who was Member for Hull, in the Parliament after 
 the restoration, was the last person in this country that received wage* 
 from his Constituents. (Christian, ubi sup.) 
 
 In Scotland the Representation of the Shires was introduced by the 
 authority of the Legislature, in the 7th Parliament of James the First 
 ©f that kingdom, anno 1427, and there it is at the same time expressly 
 provided, that “ the Commissaries shall have costage of them of ilk 
 fi schire that awe compeirance in Parliament.” (Christian ubi sup. and 
 Scotch Acts, printed in 1682, p. 30.) 
 
 # Libertatem repudiaverunt, ut quam sibi dicerent intolerabilenu 
 
 k 
 
[ 54 ] 
 
 account it is truly said, that a King of England can do no 
 wrong; nor will his prerogative be any warrant to him to do 
 an injury to any one. How, then, can the House of Com- 
 mons assume the power of imprisoning at their own discretion , 
 when the King cannot imprison without the subject is first 
 brought in to answer by due process of law ? Is this the Con- 
 stitution ? Is this the law of the land ? We are indeed most 
 grossly ignorant of such a Constitution ; we are totally unac- 
 quainted with any such law. Yes, here we are completely ig- 
 norant; but we have some little capacity in other respects. 
 We know, that we have certain written laws to protect the sub- 
 ject; and we know, that those laws cannot legally be suspend- 
 ed or dispensed with by any authority less than the whole Le- 
 gislature. It is not in the power of the House of Commons to 
 repeal any written law whatever ; they can neither make nor 
 annul laws without the assent of the other two estates of the 
 realm. This is the true Constitution of the country ; and this 
 Constitution the people are bound to maintain, unless they 
 choose to betray themselves, and to fall into a state of universal 
 corruption ; and when they are once fallen into such a state, 
 they will be sure to lose what they deserve no longer to enjoy. 
 
 But, Gentlemen, it is asserted by Sir Arthur Pigott, 
 that the House of Commons have power to imprison the 
 subject for a libel ; and he says that we, who hold a con- 
 trary doctrine, are ec instigators of anarchy .” Now, though 
 I entertain the highest respect for this Learned Advocate, 
 I must beg to differ from him in both these particulars. In 
 the first place, I cannot but wonder at his legal opinion. I 
 should have thought, that in the course of his long and la- 
 borious lucubrations he must have met with the Statute of 
 28 Edw. III. c, 3. which declares, 66 no man shall be put 
 “ out of land of tenement , nor taken , nor imprisoned, nor 
 « disinherited , nor put to death , without being brought m to 
 “ answer by due process of law.” I should have imagined, 
 that he had not altogether passed over the Statute of Marl- 
 
[ « ] 
 
 bridge* (now called Marlborough, in Wiltshire) which was 
 made in the 52d year of Henry III. The reason of the 
 making of this act was, (says my Lord Coke) that many 
 fearful and dangerous troubles and dissensions between the 
 King and his people had grown out of this root, that the 
 King sometimes allowed, and sometimes disallowed the Great 
 Charter — that the great men, and others, refusing the 
 course of the King’s laws, took upon themselves to be 
 Judges in their own cause, and to take such revenges as 
 they thought fit, until they had amends at their own plea- 
 sure: for a remedy in general of all wdiich mischiefs, u It is 
 u provided , agreed , and granted , that all persons , as well 
 i6 of high as of low estate , shall have and receive justice in 
 66 the King’s Court.” Now, what will Sir Arthur say to 
 these two Statutes ? Will he, after an attentive perusal of 
 them, pretend that any man, however mean his condition, or 
 however great his offence, can be imprisoned, disinherited, or 
 put to death, without being brought in to answer by due pro- 
 cess of law ? Will he say, that any man, or body of men, can 
 have or receive justice in any other place than in the King’s 
 Courts of Justice ? Sir Arthur must know what my Lord 
 Coke says upon the above-cited w ords of the Statute of Marl- 
 bridge. 44 These words (in the, Court of our Lord the King) 
 44 are of great importance ; for all causes ought to be heard, 
 “ ordered, and determined before the Judges of the King’s 
 “ Courts, openly in the King’s Courts, zohither all persons 
 44 may resort, and in no chambers, or other private places; 
 44 for the Judges are not Judges of Chambers, but of Courts; 
 44 and therefore in open court , where the parties’ Counsel and 
 44 Attornies attend, ought orders, rules, awards, and judge- 
 44 ments to be made and given, and not in chambers or other 
 44 private places, where a man may lose his cause, or receive 
 44 great prejudice or delay in his absence for want of defence. 
 44 Nay, that Judge that ordercth or ruleth a cause in hi s 
 
 * This town in our law books is called a city, and the freemen, citi- 
 zens. 2 Inst. 101. 39. E. 3. fo, 15. 
 
I 56 ] 
 
 ** chamber, though his order or rule be just, yet offendeth hrf 
 < 6 the law (as here it appeareth), because he doth it not it# 
 “ Court.” (Vide 2 Inst. 103). But the Statute of Marl* 
 bridge does not stop here; it does not say merely, that all 
 causes shall be heard in the King’s Courts ; it declares, that 
 “ no one hereafter shall have revenge of his own authority, 
 u without the award of the Court of out Lord the King." 
 Gentlemen, I heartily rejoice in being able to bring this Sta- 
 tute to light from the gloom of antiquity ; and I am certain, 
 that every one of you must admire the noble precautions which 
 your ancestors took for the preservation of the liberties, both 
 of themselves and their posterity. Here is an excellent written 
 law, a noble course of proceeding for the equal and impartial 
 administration of justice! No; it is not lawful for causes to 
 be heard, ordered, or determined, in any other places than in: 
 the King’s Courts ; it is not lawful for any man, or body of 
 men, to revenge themselves ; they must have judgment in some 
 of the Courts of our Lord the King. No private places are to 
 be used, where the public are excluded ; no galleries are to be 
 cleared ; no doors barricadoed * ; no persons are to be accusers 
 
 * Some Members of the Honourable House think, that the public ought' 
 not to be admitted to hear and report their debates. But Mr. Justice 
 Lawrence is of a different opinion. In giving judgment upon a rule to 
 shew cause, why a criminal information should not be granted against J. 
 Wright, for printing and publishing a libel on John Horne Tooke (winch 
 alleged libel was contained in a report of the House of Commons which 
 Wright had printed) he made use of the following words. “ Though the 
 publication of the proceedings of Courts of Justice may be to the dis- 
 advantage of the particular individual concerned, yet it is of vast im- 
 portance to the public, that such proceedings should be generally 
 known. The general advantage to the country in having these proceed-, 
 ings made public, more than counterbalances the inconveniences to 
 the private persons, whose conduct may be the subject of such proceed- 
 ings. The same reasons also apply to the proceedings in Parliament ; 
 it Is of advantage to the public, and even to the legislative bodies, that 
 true accounts of their proceedings should be generally circulated. (See 
 Rex. v. Wright, 8. T. R. 293.) 
 
[ 57 ] 
 
 and punishers in their own cause. All men, high and low, 
 must have and receive justice in the King’s Courts of Justice. 
 I -beseech you then to consider the glorious advantages of a 
 public trial. The offender neither makes his appearance, nor 
 pleads, but in places where every body may ha ye free entrance ; 
 and the witnesses when they gave their evidence, the Judge 
 when he delivers his opinion, the Jury when they give their 
 verdict, are all under the public eye * These are the blessings 
 of a free Government — of a limited Monarchy*— of a country 
 where the laws are written. What then would the House of 
 Commons set up against these laws? They tell us of a 
 Privilege which was usurped in former times ; and this, for- 
 sooth, is to deprive us of our written laws. I am very sorry, 
 that Sir Arthur Pigott should entertain this notion ; but, 
 that he should call the persons who deny the legal force of the 
 privilege 44 instigators of anarchy,” 44 adherents of the new 
 44 school 44 contemptible pretenders ,” is more than I could 
 have expected from him +. For my part, I shall not think my- 
 — — ? 
 
 * See De Lolme on the Constitution, p. 182. The King’s Courts 
 
 of Justice are the proper places where every person that has suffered 
 injury and damage may make his complaint, and have right done him. 
 Sir Edward Coke, in his exposition upon the Stat. of Westm. 2. c. 14. 
 says, “ It is an ancient maxim of the common law, Non reccdant qut r- 
 ** rentes a curia regis sine remedio .” In 4 Inst. fol. 71, about the middle, 
 he says, “ No wrong or injury, either public or private, can be done, 
 “ it shall be reformed or punished in one court or other, by due 
 “ course of law.” And in.the lower end of that folio, “ A failure of 
 ‘ 1 justice is abhorred in laic” 
 
 + The learned Advocate may, if he please, say, that the supporters of 
 Magna Charta are instigators of anarchy ; but he seems to have forgotten, 
 that Glanvil, who was a learned lawyer, and Chief Justice in Henry the 
 Second’s days, wrote a book of the Common Law, which is the most an- 
 cient of any extant, touching the liberty of the subject, wherein he in- 
 forms us, (lib. 1. c. 2.) that there was in his .time such a thing as High 
 Treason against the Kingdom as w ell as against the King. If the learned 
 Gentleman will take the trouble to look into the elaborate history of 
 Jlenry the Second by Lord Lyttleton, he will find the following passage, 
 
 H 
 
[ 58 ] 
 
 self either an instigator of anarchy , or a contemptible pre- 
 tender , while I find, that such men as Lord Erskine and Sir 
 
 which is very worthy of his attention. “ That arbitrary imprisonments, 
 “ without process of law, were against the custom of England, even in 
 “ those days,” and that in this respect Magna Charta did no more than 
 confirm the ancient law, will appear from the following passage in 
 Ethelred, abbot of Rivaux, a contemporary historian. “ Conjunxerat 
 “ se ei (regi Scotiae) ejusque interfuit aciei Eustacius filius Johannis, de 
 “ magnis proceribus Angliae, regi quondam Henrico familiarissimus, vir 
 “ summae prudentiae, et in secularibus negotiis magni consilii, qui a rege 
 Anglorum ideo recesserat, quod ab eo in curia contra patrium morem 
 captus, castra, quae ei rex Henricus commiserat, reddere compulsus 
 “ estj ob quam causam offensus, ut illatam sibi ulcisceretur injuriam, 
 “ ad hostes ejus sese contulerat.” According to other writers instead 
 of castra quce Rex Henricus commiserat , it should have been castrum , 
 quod, &c. namely, the Castle of Bamburg: but what I (says the noble 
 historian) cite this passage for, is to prove, that his imprisonment was 
 contra patrium morem , and therefore considered as an offence done to 
 him, which even dissolved his allegiance .” Yol. 1. p. 508. 
 
 The opinion of his Lordship with respect to the Privileges of the House 
 of Commons, may be seen in the following Extract from his Speech on that 
 subject, in the House of Lords, in 1770. 
 
 “ My Lords, — All Privileges are subordinate to the great laws of soci- 
 “ ety ; to the good order, the peace, and the safety of the State, 
 
 “ Privilege must not be exercised to the grievous inconvenience and 
 “ detriment of the public; it must not obstruct the public justice ; it must 
 “ not endanger the public safety. 
 
 “ The administration of justice, and the execution of laws, are, by the 
 “ Constitution of our Government, entrusted to the Crown and its offi- 
 “ cers; but entrusted under checks beneficial to liberty, beneficial to 
 “ justice. But if you change this system ; if you take the Executive 
 “ power from the Crown, and place it in either House of Parliament, 
 “ what check, what controul will then remain ? An arbitrary power will 
 “ be there , which is no where else in our Government— an arbitrary 
 ** power without appeal ! 
 
 “ In order to preserve the independence of Parliaments, it will be ne- 
 a cessary to preserve the reputation qf Parliament in the minds of the 
 ** people , and the love of it in their hearts. How, my Lords, can this be 
 “ done, if they find it an obstacle to that equal justice which is their 
 ** birth-right and their safety ? 
 
 M Upon the whole, I am confident, your Lordships will on no account 
 
C 59 ] 
 
 Samuel Romilly deny the power of the House of Commons 
 to imprison for a libel. The opinions of Sir Samuel Romilly 
 hare long been before the public; and Lord Erskine, with 
 the soundness of a lawyer, conversant in the Laws and Con- 
 stitution of his country, has just declared, that u the force of 
 u laws is acquired in some cases by a long and uninterrupted 
 (( usage; but he must say generally this, that if there should 
 4 c be but one written law , one statute existing , contrary to the 
 u usage , no such usage can avail against it. The laws of the 
 “ laud, which are part of the inestimable Constitution of this 
 “ country, can admit of no usage, custom, or authority against 
 (e their express provisions.’* And then he adds, in the spirit 
 of an ancient Roman, u I declare literally that I would sooner 
 u die , than consent to the confining or punishing of any man , 
 66 contrary to the force and meaning of the written law of 
 u the land.” And afterwards, speaking of an occasion where 
 6 i he had been told of precedent and opinion , and had heard 
 the great name of Judge Hale produced as an authority to 
 which he ought to defer, he says, that u he then had declared, 
 , <c that he cared nothing for the opinion of Judge Hale. He 
 <c had the written law in his hand, and would abide by that 
 C( alone against all other authority. He should care no more 
 u for my Lord Hale than for a great fly on the window, if 
 u Lord Hale’s authority was against the existing law of the 
 tC land, even though backed by all the rest of the Judges.”— 
 
 “ depart from that maxim which is the corner-stone of all government ; 
 “ that justice should have its course without stop or impediment. Jus, 
 ‘‘ fas , lex , potentissima sint. This, my Lords, is the very soul and es- 
 “ sence of freedom. Obstruct this, and you immediately open a door to 
 “ violence and confusion ; to all the iniquity and all the cruelties of pri- 
 “ rate revenge; to the destruction of private peace, the dissolution of 
 “ public order; and, in the end, to an unlimited and despotic authority, 
 l * which we must be forced to submit to, as a remedy against such into- 
 “ lerable evils. The dominion of law is the dominion of liberty. Privilege 
 4i against law , in matters of high concernment to the public, is oppression , 
 ** is tyranny, wheresoever it exits.” (Debates, 1770.) 
 
 H 2 
 
[ 60 ] 
 
 Instigator of Anarchy ! Contemptible Pretender ! — or rather, 
 most excellent Patriot, and enlightened Senator! I trust, how- 
 ever, that his Lordship does not stand alone. 1 have, indeed, 
 read, with considerable sorrow and surprise, the opinions of 
 some other Noble Lords; but I really believe, that we have 
 many illustrious charaters in both Houses of Parliament, whose 
 excellent merit and solid virtue will not suffer them to betray 
 the rights and liberties of their countrymen. I think we are 
 not yet come (corrupt as we are) to that state, in which the 
 Historian describes Rome to have been in his degenerate days, 
 when, like a woman, past child-bearing, she ceased to produce 
 great men ; and, though it still subsisted some time after, it was 
 only in consequence, and by means of its ancient grandeur, 
 which continued to support the Republic, notwithstanding 
 the weakness and vices of its Governors. (Sallust, in Bello 
 Catalin.) 
 
 Let me, then, implore you, my countrymen and fellow-sub- 
 jects, to be careful to preserve a serious, sacred, and invio- 
 lable regard for the ancient principles of your Constitution ; 
 particularly for the Trial by Jury , which is the strongest 
 bulwark of all our liberties. Do not be intimidated by a 
 set of men, who make a laugh of liberty, and will , perhaps, call 
 you traitors for your love of it. Remember (as my Lord 
 Somers says*) that u they neither are , nor can be traitors , 
 u who endeavour to preserve and maintain the Constitution ; 
 u but they are the traitors who design and pursue the sub - 
 * 6 version of it.” I perceive there has been a Meeting of some 
 Citizens of London, who have drawn up an Address, in oppo- 
 sition to the proceedings which have lately taken place in that 
 City, and in your County. By a strange contradiction, they 
 profess to u admire the principles of the Revolution ; and to 
 4< revere the Constitution as then confirmed and yet they 
 call us, who do nothing more than stand up for the very same 
 
 * Judg. of Kingd. and Na. 14. 
 
[ 61 ] 
 
 Constitution, 44 factious individuals,” and complain of ouf 
 44 insidious efforts .” We ask for the Trial by Jury ; we 
 require that all men, high and low, may have and receive jus- 
 tice in the King's Courts ; and, in a little time, we shall require 
 to have more frequent Parliaments , and a fuller Represented 
 tion of the People. Is there any thing factious in this ? Are 
 the noble efforts which are made to preserve our liberties to be 
 called insidious? Those citizens may, if they please, speak 
 of 44 the mischievous endeavours, which have failed in 
 44 traducing the character of the Sovereign but this is 
 now a stale and idle trick, which the wise and honest part 
 of the community will disregard. It might have done some 
 time ago, but the people are now become more enlightened, and 
 can judge a little for themselves. For, let me ask, who has 
 traduced the character of the Sovereign ? who has said a dis- 
 loyal, a disrespectful word, concerning him ? Those gentlemen 
 have suggested things which never entered into the minds of the 
 people : there is no question between the King and the People. 
 The dispute is between the People and the House of Commons ; 
 the former complain, that the latter have invaded their rights, 
 and trampled upon their liberties. Those Citizens say, that, 
 44 in reviewing the relative situation of this country with 
 44 others, they have much to rejoice at, and little to regret.” 
 Now, who can question, that they prefer this country to any 
 other country whatever ? But are they the only persons 
 who admire this country? Or, let me ask, why do they ad- 
 mire it at all ? The answer is, that they, and all other subjects, 
 are proud of this country ; because, by our ancient Constitu - 
 tion , we enjoy more liberty than any other country in the 
 world. But, let every individual citizen stand forward and 
 answer for himself. Would he like to be imprisoned , or to 
 be put to death, without being brought in to answer by due 
 process of law ? Would he be contented to be tried by a 
 tribunal, which should make itself Counsel, Jury, and Judge, 
 accuser and punisher ? all these characters united in one body, 
 to determine in its own cause? Let every man put this ques- 
 tion to his own heart. These are things which come home to 
 
L «2 ] 
 
 men’s bosoms • they disturb every man at his fire-side, and in 
 his bed. A man may call out while this is not his own case; 
 but who, that is not blind by nature, or corrupt through art, 
 will suffer that to be done to another, which may hereafter, 
 upon the same grounds, and with the same facility, be done to 
 himself? What! will men have wo regard for those dear and 
 glorious liberties which their generous ancestors delivered 
 down to them? Will they barter them away for filthy lucre, 
 or suffer them to be lost through mere indifference ? Will they 
 let their estates descend to their children, but not the laws 
 which were made to protect those estates ? Will they exa- 
 mine their ancient title deeds, but not look into the old and 
 noble laws of their forefathers ? Have they forgotten, that 
 every man derives a greater inheritance from the laws than 
 from his parents ? Alas ! some weak men seem not to know, 
 that a. privilege to set aside one Act of Parliament, is a privi- 
 lege to set aside every other act of the Legislature ; they do 
 not appear to understand, that if a man can be imprisoned 
 without being brought in to answer by due process of law, he 
 can, by the same rule, be disseized of his freehold ; he can be 
 disinherited ; he can be put to death ; for the statute of Ed- 
 ward III. which prohibits imprisonment, without the regular 
 process of the law, prohibits all the other measures which I 
 have mentioned. Freeholders of Middlesex ! do not be de- 
 ceived. Be jealous of your liberties, and you will retain them ; 
 be indifferent, and you will lose them. Those Citizens of Lon. 
 don before-mentioned may say, that you are inflamed by a spi- 
 rit of faction , but I sincerely believe," that you are animated 
 only by a spirit of liberty . Do not, therefore, relax this noble 
 spirit; but remember, that as losing the spirit of liberty lost 
 the liberties of Rome , even while the Laws and Constitutions 
 made for the preservation of them remained entire (for there 
 was still a Senate; there were still Censors and Tribunes) : so 
 if you suffer this spirit to expire, you may continue to call 
 yourselves Freemen, but you will in reality be Slaves, You 
 may submit, by little and little (for arbitrary power is gene- 
 rally acquired in this manner), till at last you have no incliha- 
 
C 63 ] 
 
 tion to resist. If the Romans had been told, in the days of 
 Augustus, that an Emperor would succeed, in whose reign a 
 horse should be made Consul , they would have been extremely 
 surprised. But (as an excellent writer has observed', I be- 
 lieve they were not so much surprised, when the thing hap- 
 pened ; when the horse was Consul, and Caligula Emperor. 
 The Patriots at the Revolution, who remembered long Par- 
 liamentsy who had felt the smart of them*, and who strug- 
 gled hard for annual , and at last obtained triennial Par- 
 liaments, little thought, that in the course of a few years 
 after, a Parliament which had been chosen for three years, 
 would choose itself for Jour more, and entail septennial Par- 
 liaments on the nation. And yet all this was done; it has 
 even been suffered to grow familiar to us ; but because we 
 are now tired of the oppression, and desire to have our ancient 
 rights restored to us, we are to be called 44 factious y” we 
 are said to be using 44 mischievous endeavours to overturn the 
 44 Constitution Let those citizens pause for a moment, and 
 consider, whether they really do admire the principles of the 
 Revolution. They say they do. Why, then, find fault with 
 us because we w^ant a trial by Jury ; because we desire to 
 have triennial Parliaments, and & fairer representation of the 
 People ? These were the articles which the Patriots of the 
 Revolution procured for us. But we will watch those Citi- 
 zens when the motion is made for a Reform ; we shall then 
 see in what manner they come forward to support the Con- 
 stitution, 44 as settled at the Revolution ,” which they now 
 profess so much to admire. They desire us 44 to compare 
 44 the blessings which we now enjoy with those of former pe- 
 44 riods .” What ! is it a blessing to be deprived of the Trial 
 by Jury ? Is it a blessing to be governed by a septennial , in- 
 
 * Tacitus says, “ If an annual election to Power make men insolent, 
 “ what must be their pitch of insolence, if they hold it five or seven 
 years?” (Superbire homines etiam annua designatione; quid si hono- 
 rem per quinquennium agitent ?) This question may be answ ered without 
 much difficulty. 
 
[ 64 ] 
 
 stead of a triennial Parliament* ** ? Let those <c adrMrers of 
 the principles of the Revolution” answer us. They wish 
 us u to compare the blessings we enjoy, with those which are 
 <c now possessed by the inhabitants of other countries.” We 
 are willing to do this ; we are ready to admit, that we are 
 much happier than the people on the Continent. They have 
 lost their liberties ; they have been sold to the tyrant of 
 France; and we all know, that they were as ripe for slavery 
 as the Cappadocians were fond of it. It becomes us then to 
 be watchful of our liberties , which alone can keep us free. 
 Let us not surrender our native rights, and we shall never be 
 conquered by a foreign foe. 
 
 ■ <e Unless corruption first deject the pride 
 M And guardian vigour of the Free-born soul, 
 
 44 All crude attempts of violence are Vain; 
 
 44 For, firm within, and while at heart untouched , 
 
 44 Ne'er yet by force was freedom overcome. 
 
 But soon as Independence stoops the head, 
 
 44 To vice enslav’d, and vice-created wants, 
 
 44 Then to some foul corrupting hand, whose waste 
 44 These heighten’d wants with fatal bounty feeds, 
 
 44 From man to man the slackening ruin runs, 
 
 “ Till the whole state, unnerv’d in slav’ry sinks.” Thomson 
 
 * There are many persons who profess the greatest zeal for the Revo* 
 lution, but who take every opportunity of opposing the yery end for 
 which it was undertaken. The Claim of Right declares, that Elections 
 aught to be free, and, that Parliaments ought to be held often. As to ex-> 
 tending the duration of Parliament, in the reign of George I. Dr. John- 
 son has expressed himself w ith great emphasis, by saying, that “ The 
 * 4 sudden introduction of twelve new Peers at once by Queen Anne, was 
 44 an act of authority violent enough, yet certainly legal; and by no 
 44 means to be compared with that contempt of national right , with 
 
 ** which some time afterwards, by the instigation of Whiggism , the 
 44 Commons , chosen by the People for three years, chose themselves for 
 44 seven.” Upon this Dr. Wharton very shrew dly remarks — 44 He should 
 M have said at the instigation of some, w ho called themselves Whigs 
 Pope’s Works, v. 9. p. 28. 
 
C 6 * J 
 
 Gentlemen, I shall now conclude with beseeching you once 
 more to maintain your ancient Rights and Liberties. Do not 
 lose sight of the Trial by Jujy; do not suffer it to be de- 
 stroyed, upon any pretence whatever. Privilege is a word of 
 no determinate meaning ; and however it may have been for- 
 merly exercised, no body of men have a right to any privi- 
 lege which is contrary to law; or, in other words, have no 
 power to dispense with the laws of the land. Do not, my 
 friends, give your consent to the confining or punishing of 
 any man, contrary to the force and meaning of the written 
 law of the land. You have a constitution of which you are 
 not ignorant; you have written laws which you can under- 
 stand. You have Magna Charta; you have the Statute of 
 Edward the Third ; you have the Statute of Marlbridge, and 
 the Bill of Rights. When you lose these, you will fall, and 
 deserve to fall ; you will no longer be worthy of freedom, and 
 consequently ought not to enjoy it. Do not, therefore, de» 
 generate ; remember the glorious exertions of your ancestors; 
 anticipate your danger, and resist it (but with temper and 
 moderation) while it stares you in the face. Beware of de- 
 ceitful men ; do not resign yourselves to a treacherous con- 
 duct ; do not betray yourselves. Let the whole body of the 
 County be as jealous of their liberties , as a private man of his 
 honour . In a word, I implore you not to abet the enemies of 
 the ancient Constitution , under a notion of supporting the 
 friends of the Government. Lay aside your petty differences ; 
 forget your private quarrels. The only cause which you 
 should now espouse is that of Liberty ; and, if you conduct 
 yourselves with firmness and fidelity in this great cause, you 
 shall see, that 66 whoever set themselves above the law , will , in 
 “ the end , find themselves mistaken.” 
 
 I am, Gentlemen, 
 
 Your most affectionate humble Servant, 
 PUBL1COLA, 
 
 I 
 
LETTER VI. 
 
 TO THE 
 
 RIGHT HON. LORD ERSKINE, 
 
 “ Nought could his firmness shake, nothing seduce 
 His zeal, still active for the common weal ; 
 
 Nor stormy tyrants, nor corruption’s tools, 
 
 Foul Ministers, dark- working by the force 
 Of secret-sapping gold. All their vile arts, 
 
 Their shameful honours, their perfidious gifts. 
 
 He greatly scorned.’' Thomson 
 
 MY LORD, 
 
 After the very able and animated speech, which your 
 Lordship delivered in the House of Peers, on the subject 
 of the Privileges of the Plouse of Commons, I did not expect 
 it would be asserted by any one, pretending to be conversant 
 in the Laws and Constitution of his country, that the Com- 
 mons have power to dispense with the written law of the 
 land. This, however, has been done, and by a gentleman, 
 whose name and reputation are by no means inconsiderable 
 in the political world. The Right Hon. George Ponsonby 
 has told the House of Commons, that they can imprison 
 the subject at their own discretion , notwithstanding the 
 Great Charter of King John ; and he says, that no Judge 
 whatever, under any circumstances , has a right to interfere 
 
C 67 ] 
 
 with the proceedings of that House. From the marked 
 attention with which that gentleman’s speech was received, 
 and the frequent cheers whiph were given from both sides 
 of the House, one would think that the Cohimons had made 
 him their principal champion, and that they were willing to 
 rest their cause, at least in the House, on his authority. 
 They seem to have been of opinion, that if the power for 
 which they contend could be defended at all, Mr. Ponsonby 
 was the man to defend it,, I agree with the Honourable 
 House,- that if their privilege to imprison a subject against 
 the written law of the land could have been supported, the 
 Right Hon. Gentleman would have supported it for them — 
 
 u Si Per gam a dextra 
 
 Defendi possent ; etiam hac defensa fuissent.” 
 
 But the defence which the Right Hon. Gentleman has made 
 is not supportable; and that it is not, I think I am prepared 
 to shew, in a few remarks which I beg to submit to your 
 Lordship’s consideration, and which, without farther pre- 
 face, I trust will meet with a courteous reception. 
 
 In the first place, then, I shall observe, that the Parlia- 
 ment of this country consists of three estates ; the King, the 
 Lords Spiritual and Temporal, and the Commons *. These 
 
 * I am aware it is contended by some, “ that the Court of Parlia- 
 ment consists of the King’s Majesty, as sitting there in his Royal, ca- 
 pacity, and of the three estates of the realm,” which (say they) are 
 “ the Nobility, Clergy, and Commonalty and (they add) <e the King 
 comes in upon a higher denomination and title •, namely, the head of 
 these three estates ; and therefore, say they, those who have gone about 
 to make the King one of the three estates are mistaken.” But this 
 doctrine is not, I conceive, maintainable at this day ; for “ the Lords 
 Spiritual and Temporal are now in reality only one estate.” (See 
 Dyer 60.) And (as Mr. Christian observes) “ there seems to be no 
 reason to doubt, but that any Act at this day would be valid, though 
 il all the temporal Lords or all the spiritual Lords were absent.” ( Black - 
 
 12 
 
 1 ! 
 
Z 68 3 
 
 three estates, united together, and considered as one aggre- 
 gate body , are omnipotent ; that is, they can make law ; 
 and that which is law, they can make no law ; but taken 
 separately , and independently one of another, they can 
 neither make nor unmake laws ; for the consent of all three 
 is required to every act to bind the subject. This is the true 
 constitution of England; and therefore no written laic 
 which is now in existence, can be repealed otherwise than 
 with the concurrence of the King, the Lords, and the Com- 
 mons. But, says the Right Hon. Gentleman, we (the House 
 of Commons) have a privilege to imprison and punish at our 
 own discretion ; we do not care for an Act of Parliament, 
 which declares, that i( no man shall be imprisoned or put to 
 death without the intervention of a Jury we can break 
 down that barrier ; nay, we will break it down, and when we 
 have done so, there is no power upon earth that can call us 
 to account : we are “ the sole judges of our own privileges 
 —the sole judges of what those privileges are — the solfe 
 judges of the extent (only observe, uiy Lord, the extent !) 
 to which those privileges are to be carried ; and the sole 
 judges of the manner in which such privileges are to be 
 exercised.” And are we really come to this ? Are the people 
 
 stone, yol. i. p. 155.) My Lord Holt very justly observes, that “ neither 
 “ House of Parliament, nor both Houses jointly, can dispose of the 
 “ liberty of the subject, or property of the subject ; for to this purpose 
 ee the King must join ; and it is in the necessity of their several con- 
 <{ currences to such acts, that the great security of the liberty of the 
 subject consists.” (2 Raym. 1112.) In January, 1648, the Com- 
 mons passed a vote, “ that whatever is enacted or declared for law by 
 u the Commons in Parliament assembled, hath the force of law ; and 
 “ all the people of this nation are concluded thereby, although the 
 consent and concurrence of the King or House of Peers be not had 
 li thereto but, when the Constitution was restored in all its forms, 
 it was particularly enacted by statute 13 Car. II. c. 1. that if any 
 u person shall maliciously or advisedly affirm, that both or either of 
 “ the Houses of Parliament have any legislative authority without the 
 “ King, such person shall incur all the penalties of a prwmunire.” 
 
C « 3 
 
 of England blind ? Or are they so indifferent, that they can 
 disregard the declaration made by the Right Hon. Gentle- 
 man, that the House of Commons alone (without the con- 
 currence of the King and Lords) are omnipotent; that there 
 is nothing but what they can do, if it be called by the name 
 of privilege ; and that the Judges of the land are estopped 
 from declaring when they do wrong ? Where does the Right 
 Hon. Gentleman learn this law ? Where did he find it said, 
 that the House of Commons alone can repeal the written 
 law of the land ? He has referred to my Lord Coke : he haa 
 cited Sir Matthew Hale: he has favoured us with extracts 
 from Sir William Blackstone; but does any oneof those writers 
 say, clearly and distinctly, that the House of Commons 
 alone can do away the written law of the land; that 
 they can confine and punish the subject at their own dis- 
 cretion ; in short, that they can do any thing they please, 
 and that no court of justice in this country has power to 
 judge of their acts, and to declare when they exceed their 
 powers ? If any one, or even all, of those great legal writers 
 should have declared these things, I would not pay the least 
 regard to them; for I know, that they are decidedly repug- 
 nant to the spirit of our Constitution ; and I can never for- 
 get what my Lord Holt (as great a lawyeT as ever lived) 
 declared upon the bench, viz. “ that the authority of Par- 
 liament is from the law, and as it is circumscribed by law, 
 so it may be exceeded ; and if they do exceed those Jegai 
 bounds and authority, their acts are wrongful, and cannot 
 be justified any more than the acts of private men.” (1. Salk. 
 505.) The Right Hon. Gentleman must have been aware 
 of this declaration of the learned Judge; but as it differ* 
 from his sentiments, he wishes to cast my Lord Holt in the 
 back ground, by calling him singular; but that he was not 
 quite so singular as that Right Hon. Gentleman wishes the 
 people to believe, I shall shew, when I come to speak of the 
 authority which the Judge* hare to interfere in matters of 
 Privilege of Parliament, 
 
[ 70 ] 
 
 The Right Honourable Gentleman asserts, that <( Pri- 
 vilege of Parliament is as much lex lerrce , and as much 
 within the exception of Magna Charta, as any one part of 
 the known law of the land that comes within its exceptions.’* 
 To this I will answer, that the Right Hon. Gentleman is 
 completely mistaken. The House of Commons had no 
 jurisdiction whatever till several years after the existence of 
 Magna Charta. My Lord Coke, indeed, has carried the 
 antiquity of that House much higher ; but he is quite wrong, 
 for the first writ for the election of knights, citizens, and 
 burgesses, was in the 49th year of the reign of King Henry 
 the Third — (Vide Dug. Sum. Pari. 3. Cot. Abr. Pref. 13. b.) 
 In the 35th year of Elizabeth, ann. 1592, Sir Edward Coke 
 was Speaker of the House of Commons, and he then attempted 
 to mislead it in a manner which deserves to be made known. 
 He talked very highly of the antiquity of Parliaments, and 
 of the mode of holding Parliaments, such as it is at this 
 day ; and said he had a book, which, if any member desired 
 to see, he would shew it him ; being a Precedent of a Par- 
 liament holden before the Conquest ; intitled <e Modus 
 tenendi Parliamentum but no sooner had he extolled its 
 antiquity and authority in print , than that most judicious 
 industrious antiquary, Mr. John Selden, decried it to be a 
 late imposture of a bold fancy, not exceeding the reign of 
 King Edward the Third — (Titles of Honour, p. 708 to 721); 
 and that very learned divine, Bishop Usher, in a letter to 
 Mr. W. Hakewill, of Lincoln’s Inn (who affirmed he had 
 seen an exemplification thereof in the reign of King Henry 
 the Fourth, said to be sent by King Henry the Second into 
 Ireland), conceived it to be a mistake ; and that this modus 
 was not so ancient, many pregnant evidences of its novelty 
 appearing throughout its whole contexture. To these I 
 will add the observations of the learned and industrious 
 Mr. Prynne, namely, that the word Parliament was not in 
 use in the Conqueror’s reign ; for, says he, “ that word, to 
 express or denote a Parliamentary great council, as this 
 
C 71 3 
 
 modus useth it, was never used in any of the ancient great 
 councils, synods, laws, canons, constitutions, charters, pa- 
 tents, writs, or other records, nor yet in any of our old his- 
 torians, living in the reigns of our British, Saxon, Danish 
 Kings, before, or of our Norman or English Kings, after 
 the Conquest, till the reign of King Henry the Third;— 
 (vide Pry n. on 4th Inst. p. 2;) and, therefore, he is very 
 much dissatisfied with Sir Edward Coke for his deception, 
 or, at best, his mistake, and declares, that “ had this been the 
 mode of holding Parliaments in Edward the Confessor’s 
 reign *, and this modus shewn to, approved, and used, by 
 William the Conqueror, and in the times of his successors 
 Kings of England, as its title asserts, (which certainly was 
 added long after the conquest, if the modus - was before it,) 
 or transcribed in a parchment roll, and sent into Ireland by 
 King Henry II. to be there observed, and that, no doubt, 
 by the advice of his Judges, it is very probable some of our 
 historians. Parliamentary writs, rolls, records, statutes, or 
 law-books, would have mentioned it; especially Statham, 
 Fitsherbert, Brook, Fortescue, Sir Thomas Smith, Edward 
 Vowell, Hollinshed, and Mr. Camden, in their Titles and 
 Discourses of Parliaments. But (adds he) not one of all 
 our ancient historians, Parliament writs, rolls, records, 
 journals, statutes, law-books, or writers of Parliaments that 
 I have perused, ever made the least mention of it, before Sir 
 Edward Coke vouched it in the Parliament of 35 Elizabeth, 
 
 * I embrace this opportunity to observe, that, as to the Laws of EcL 
 ward the Confessor, the authenticity of those in print is controverted 
 by Dr. Hickes. (Hie. Thes. Ling. Septen. dissert, epist. 95.) In truth, 
 (•ays Mr. Serjeant Runningtonj what were in reality the Laws of Ed- 
 ward the Confessor is much disputed by antiquarians, and our ig- 
 norance of them seems to be one of the greatest defects in English 
 history. The collection of Laws in Wilkins, which pass under the 
 name of Edward, are plainly a posterior and an ignorant compilation. 
 (Hale’s Hist, of the Com. Law, v: i. p. 6. note B.) 
 
 
no 
 
 when he was Speaker.” (See Pryn. en the 4th Inst. p. 6, 7.) 
 And in his “ Additional Appendix of Records,” (p. 1,) he 
 tells us, that in perusing Mr. Agar’s Abridgment of Placita 
 coram Rege in the treasury of the receipts of the King’s Ex- 
 chequer, he found at the end of his Abridgment and table 
 to the Placita of King Richard II. this modus tenendi Par~ 
 liamentum , transcribed by him, out of a manuscript in 
 Sir Robert Cotton’s Library, as relating to the time of King 
 Richard II. and containing some passages in it transcribed 
 out of records in his reign. Therefore Mr. Agar thought 
 that its highest antiquity did not exceed the latter end of 
 King Richard II.’s reign ; and so (says Mr. Prynne) the 
 author’s discourse of its antiquity and authority will prove 
 but a mere Utopian fancy of his own invention *. 
 
 * Although I do not think it necessary to add any thing to the re. 
 spectable authorities I have cited on this head, I will just subjoin the 
 following extract from Mr. Hume. In bis Appendix to the reign of 
 King John, he says,— u So far the nature of a general council is deter- 
 mined without any doubt or controversy. The only question seems to 
 be with regard to the Commons , or the Representatives of Counties and 
 Boroughs ; whether they were also, in more early times, constituent 
 parts of Parliament ? This question was once disputed in England with 
 great acrimony : but such is the force of time and evidence, that they 
 can sometimes prevail even over faction j and the question seems, by 
 general consent, and even by their own, to be at last determined against 
 the ruling party. It is agreed, that the Commons were no part of the 
 great Council , till some ages after the Conquest j and that the military te- 
 nants alone of the Crown composed that supreme and legislative As- 
 sembly.” (Hist, of Eng. vol. ii. p. 1 16.) 
 
 It may, however, be satisfactory to add, that George Rose, Esq 
 (Keeper of the Records in the Treasury of the Coart of the Receipt of 
 Exchequer,) in his Report to the Select Committee, appointed by order 
 *f the House of Commons, to inquire into the state of the Public Re. 
 cords of the kingdom, says,— “ I have certainly not been able to find in 
 the Records the slightest foundation for an opinion that there was any 
 election of Representatives of the Commons earlier than 49 Hea. III. 
 •xcept in the entry respecting the Borough of St- Albans, *» often re- 
 
[ 73 j 
 
 The House of Commons cannot, therefore, find any ex- 
 ception in the Great Charter to warrant their violation of it. 
 Mr. Ponsonby does not appear to me to have read enough 
 upon this subject; he has just skimmed the surface, but has 
 not descended to the bottom. Having, as I trust, shewn 
 that the House of Commons had no jurisdiction till after the 
 Great Charter, 1 will now explain in what manner they ori- 
 ginally had redress for what they called a breach of privi- 
 lege; and I will prove, that they proceeded by a Jury, and 
 not according to their own pleasure. Mr. Prynne, whose 
 
 ferred to by different writers ; as the three instances mentioned by 
 Whitelock in the reigns of John and Henry do not appear to apply to 
 such election; but in order that a judgment may be formed of that, I 
 have inserted the Records at the end of this Report, as they are too long 
 to make a part of a note.” (See the Report of the Select Committee, 
 (folio) 4. July, 1800, p. 44.) Now, 1 shall beg leave to observe, that 
 from an attentive perusal and consideration of the Petition of the Bur- 
 gesses of St. Albans, and the answer given thereto, it is evident, that 
 those Burgesses claimed not, nor prescribed to come to Parliament 
 merely as from a Borough, but as from a town that was held in chief of 
 the King ; and this service was incident to their tenure, and was such as 
 the King's progenitors had accepted inlieu of all services due by reason 
 thereof. And of this opinion was Dr. Brady, in his Auswer to Petit, p. 77, 
 
 &c. 1 have already observed (p. 53), that in Scotland the system 
 
 of Representation was not adopted till the reign of James I. oftliat king- 
 dom, aun. 1427. — A remarkable proof of the little intercourse between 
 the English and the Scots, before the union of the Crowns, is to be 
 found in two curious papei s, one published by Haynes, the other by 
 Strype. In the year 1567, Elizabeth commanded the Bishop of Lon- 
 don to take a survey of all the strangers within the cities of London and 
 Westminster. By his report, which is very minute, it appears that the 
 whole number of Scots, at that time, was only fifty-eight. — Haynes, 
 455. A survey of the same kind was made by Sir Thomas Row, Lord 
 Mayor, A. D. 1568. The number of Scots had then increased to 
 eighty-eight.— Strype, 4. On the accession of James, a consider- 
 able number of Scots, especially of the higher rank, resorted to Eng- 
 land ; but it was not until the Union that the intercourse between the 
 two kingdoms became great. (Robart. Hist. Scot, v, ii. p. 304 ”) 
 
 K 
 
C 74 ] 
 
 industry and research were most indefatigable, has left us a 
 copy of a Record in the reign of Richard II. which he dis- 
 covered *. It is “ Pat. II. R. 2. pars 2. m. 3. dorso. Dg 
 Inquirendo”— concerning an extraordinary forcible riot and 
 trespass committed upon the goods, lands, servants, and te- 
 nants of one of the Knights of the Shire for Cumberland? 
 while he was sitting in Parliament under the King’s protec- 
 tion ; and this Writ of Inquiry was issued out by the King 
 upon his complaint thereof made unto him. The Writ is 
 too long for me to transcribe, nor is it necessary : I shall, 
 however, cite Mr. Prynne’s observations upon it. “ Frorp 
 this precedent,” says he, “ it is observable, first, that the 
 House of Commons in that age assumed no jurisdiction to 
 themselves, or their Committee of Privileges, to examine 
 and punish this transcendant riot and breach of privilege of 
 their Member, but only complained thereof to the King in 
 Parliament, for redress thereof, as they did to the King and 
 Lords in all other cases oflike nature, till the end of the 
 reign of King Henry VI 11. as I have elsewhere (viz. in his 
 Brief Register and Survey of Parliamentary W r rits) evidenced 
 at large. 2dly, That the King upon this complaint, did 
 not presently send for the offenders in custody by a Serjeant 
 at Arms, as the Commons of late times have done, but issued 
 out a commission to inquire of the riot and abuses byaJ ury : 
 which (says he) I observe, not to diminish any of the just an- 
 cient privileges of the Commons House, or Members, or the 
 exemplary punishment of the wilful contemptuous infringers 
 of them, but to rectify the late irregularities in sending for 
 persons in custody upon every motion and suggestion of a 
 pretended breach of privilege, to their extraordinary vexa- 
 
 * In 1660, Mr. Prynne was chosen for Bath to sit in the healing Par- 
 liament; and after the Restoration, made Chief Keeper of his Ma- 
 jesty’s Records in the Tower, with a salary of 500 /. per annum. He 
 published his Animadversions on Lord Coke in May, 1669, and died at 
 his chambers in Lincoln’s Inn the October following. Biog. Brit. 
 
C 75 ] 
 
 tion or expense, before any legal proof or conviction of their 
 guilt, against the Great Charter and all ancient precedents 
 and proceedings in Parliament.” (See “Additional Appen- 
 dix” to Animadversions on the 4th Inst. pp. 1, 2, 3). 
 
 Now, my Lord, what will Mr. Ponsonby — what will the 
 House of Commons say to this? Where is now their juris- 
 diction ? Where is their old and indisputable power to im- 
 prison the subject at their pleasure ? Where is Mr. Pon- 
 sonby’s privilege “ as ancient as the common law * ?” My 
 Lord, the House of Commons talk to us about custom ; let 
 us just consider what is meant by custom. I 'have always un- 
 derstood, first, that no custom can prevail against an express 
 Act of Parliament ; and, secondly, that if any one can shew 
 the beginning of a custom within legal memory, that is, 
 within anytime since the first year of the reign of Richard I. 
 it is not a good custom. Now, in reference to the first point, 
 we all know, that there is a written law against the power 
 which is assumed by the House of Commons. This is clear 
 and certain. With regard to the second point, I have just 
 proved, that the House cannot shew the exercise of the power 
 to commit and punish at their pleasure, before the first year 
 of the reign of Richard I. ; for 1 have cited the Writ of In- 
 quiry in the reign of Richard II. at which time it appears, 
 that they proceeded according to the old and sound mode 
 
 * It is important to observe, that both before and after the time of 
 this precedent cited by Mr. Prynne, the Commons were extremely 
 anxious for the strict observance of the Great Charter. 
 
 In the 36 Edw. III. they PETITIONED, (for, in that age, as Sir 
 Robert Cotton informs us, they were only Petitioners , all Judgments ap- 
 pertaining to the King, and to the. Lords, unless it were in Statutes, 
 Grants, Subsidies, or such like,) “ that such as are imprisoned 
 without due process pf law may be delivered the answer was,— the 
 grieved upon complaint shall be heard." — (Cot. Abr. p. 93, and 392.) 
 
 In the 2 Henry IV. they PETITIONED, “ that no person be arrested, 
 or imprisoned, contrary to the form of the Great Charter j” the answer 
 was,— “ The Statutes , and Cornimn Laws skall be kept" (Idem, 410), 
 
 K 2 
 
C 76 3 
 
 prescribed by the Great Charter; that is, by tire Trial by 
 Jury. — Where, then, I ask again, is the jurisdiction of the 
 House of Commons to set aside the written law? How does 
 Mr. Ponsonby intend to answer this ? He occupied a very 
 considerable time the other evening, in order to shew the 
 right — the ancient, the undoubted right — of the House to 
 imprison at their pleasure. He said, “ now I have shewn 
 the right.” No, my Lord, he has not shewn the right ; for 
 I flatter myself, that I have shewn the House is zcrong. 
 Mr. Ponsonby is not so well read in the history and consti- 
 tution of this country as he supposes. He is quite mistaken 
 as to the origin of the House of Commons ; and he is equally 
 incorrect in saying, that “ it is well known, the two Houses 
 of Parliament formerly sat under the same roof, and trans- 
 acted business together.” He borrowed this observation 
 from Lord Coke, who first affirmed it in the Parliament of 
 35 Eliz. when he was Speaker. I have already refuted my 
 Lord Coke’s account of the antiquity of Parliament ; and I 
 jiow maintain, that the House of Commons never sat and 
 debated with the Lords in one House: for there was no 
 House of Commons to sit with them, till the latter end of 
 the reign of King Henrv III. ; and Mr. Prynrie has cited 
 various bills and writs of summons to shew, that they never 
 sat together at that time. And all that is warranted by the 
 rolls referred to by my Lord Coke is, that the Commons 
 came to the Lords’ House, when the causes of summoning 
 the Parliament were declared by the Chancellor, and at the 
 end thereof, and had sometimes conference with them, as 
 now they have ; but that they sat or debated together as one 
 House, is in no ways proved. (Vide Pryn. on 4th Inst, 
 
 pp. 8, 9, 10*.) 
 
 * In order to remove all doubt upon this part of the subject, I shall 
 here insert the declaration of the Select Committee above mentioned. 
 In a note to their Report, p. 19. they express themselves as follows.— 
 Lord Cooke says, that the two Houses of Parliament sat together, 
 till late in the reign of Edw. III. and till the Commons had a perpetual 
 
[ n ] 
 
 , My Lord, I shall now beg leave to proceed to that part of 
 Mr. Ponsonby’s speech where he endeavours to shew the pro- 
 priety of the power assumed by the Commons ; for as to the 
 right, I conceive I have put that question at rest. He ri- 
 dicules “ the sagacious complaints of those who rant so 
 loudly against what they call the absurdity of being Accu- 
 
 Speaker ; but it appears by the Rolls of Parliament that they sat, or at 
 least acted, separately long before that period,” and for this they bring 
 sufficient evidence from the Rolls. I must add, that Mr. Rose, in his 
 Report, ( ubi sup.) says, — “ Lord Coke declares, that the Lords and 
 “ Commons sat together late in the reign of Edward III. and till the 
 “ Commons had a perpetual Speaker. The contrary of which, I think, 
 <f is now evident from the Rolls of Parliament : ” and then he observes 
 in a note on this passage — “Some reliance was placed by hi* Lord- 
 “ ship on the treatise ‘ de modo tenendi Parliamentum,' the authority 
 w of which, if notentireiy destroyed by Prynne,wili not at least in future 
 “ have much weight.”— —Much as I regret the necessity of extend- 
 
 ing this note, I cannot forbear adding what Mr. Rose says of Sir Robert 
 Atkyns, as Mr. Ponsonby and some others seem to have relied very 
 much upon his authority. “ Sir Robert Atkyus, a man eminently dis- 
 “ tinguisbed for his integrity and his learning, as well as for his deep 
 “ researches into the ancient History of Parliament, in his learned and 
 “ elaborate argument in the year 168O (in the case of an Information 
 by the Attorney-general against Williams, Speaker of the House of 
 Commons), in asserting the antiquity of that House fell into some 
 “ mistakes from not having resorted to the original records : he states, 
 “ and insists much on it, that the Speaker of the House of Commons, 
 “ 51. Edward III. Sir Thomas Hungerford, was Speaker of the Parlia 
 “ ment ; whereas the words in the Record are — ‘ Monsieur Thomas de 
 “ Hungerfordy Chioaler , q'i avoit les paroles pur les Communes d'Englc - 
 “ terre.’ 1 Mr. Rose explains some other mistakes of Sir Robert, and they 
 all appear to have arisen from this; namely, his calling the House of 
 Commons, the Parliament ; whereas it is only one branch of it, and can- 
 not make or annul any law without the assent of the other two estates. 
 Mr. Rose says, that in Scotland the Lords and Commons unquestionably 
 satin the same House till the Union of the Two Kingdoms, and the 
 Commissioner who represented the Sovereign, debated with them from 
 the Throne, although he had the Power (which he sometimes used), of 
 adjourning the Assembly when he pleased.” Report ( ubi sup.) 
 
C 78 ] 
 
 sers. Judges, and Executioners in their own cause.” Now, 
 my Lord, oile would have thought, that however mistaken 
 the Right Hon. Gentleman might be in his legal opinions 
 as to the right of the power, he would not have asserted, 
 that it is proper for men to be accusers and judges in their 
 own cause. This is against the first principles of justice ; 
 it is contrary to the precepts of the divine law ; and there- 
 fore it is an established maxim among us, aliquis non debet 
 esse judex in propria causa. Indeed it is a manifest con- 
 tradiction, that a man can be agent and patient in the same 
 thing. Your Lordship knows, that if, during the time you 
 presided in the High Court of Chancery, you had made a 
 decree to strangers in a thing which concerned yourself in 
 interest, and for yourself, it would have been void, because 
 you could not be a Judge in your own cause. (H. 1 1. Ja. 
 in Chancery, between Sir John Egerton and the Lord Darby 
 and Kelly resolved by the Lord Chancellor, Coke, and Dode- 
 ridge. 2 Roll. Abr. 93.) In Hi!. 4. H. 4. a fine levied be-* 
 fore the bailiffs of Salop was reversed, because one of the 
 bailiffs w as party to the fine, quia non potest esse judex et 
 pars. In the case of the City of London v. Wood, it was 
 determined, that an action cannot be brought by the Mayor 
 and Commonalty in a Court held before the Mayor and Al- 
 dermen ; for though the Mayor be not sole plaintiff, nor 
 sole Judge, yet he is essentially plaintiff and judge. (12 
 Mod. 672.) In Jenk. 90. pi. 74. it is said, that judgment 
 given by a Judge who is party in the suit with another, and 
 so entered of record, is error, although several other Judges 
 sit there, and give judgment for the Judge who is party. 
 I could cite many more cases to this effect: but I will not 
 trouble your Lordship with them; you know, that they are 
 all grounded upon a sound and perfect principle of justice. 
 Littleton, whose text has always been considered as the Bible 
 of the law, declares, that “ it is against reason, if wrong be 
 done to a man, that he should be his own judge ; for,” says 
 he, “ by such way, if he had damages but to the value of an 
 
[ 79 ] 
 
 halfpenny, he might assess, and have therefore a pound, 
 which should be against reason. And so (he adds) such pre- 
 scription, or any other prescription used, if it be against rea- 
 son, this ought not, nor will not be allowed before Judges ; 
 quia malus usus abolendus est. (Vide Tenures, sec. 212.) 
 Lord Coke observes upon this passage, that <c every use is 
 evil that is against reason ; quia in consuetudinibus non diu - 
 turnitas temporis sed soliditas rationis est consideranda : 
 and (he adds) by this rule, cited by our author, at the 
 Parliament holden at Kilkenny in Ireland, An. 40. 
 Ed. III.* Lionel Duke of Clarence being then Lieutenant of 
 that realm, the Irish customs, called there the Brehon law (for 
 that the Irish called their Judges Brehons) was wholly abo- 
 lished, for it was no law, but a bad custom, “ et malus usus 
 abolendus est” My Lord, it is astonishing, that Mr. Pon- 
 sonby should say, that the House of Commons can be ac- 
 cusers and jtidge3 in their own cause: and that they can do 
 any thing they please, and go to what extent they think pro- 
 per, without being subject to the controul of a court of law. If 
 this were the case, what misery is there that might not be im- 
 posed on the subject ? In the reign of Henry VI. Sir John 
 Mortimer, being brought into the Parliament, without ar- 
 raignment or answer , judgment in Parliament was given 
 against him, that he should be carried to the Tower of Lon- 
 don, and drawn through the city to Tyburn, and there hanged, 
 drawn, and quartered ; his head to be set on London Bridge, 
 and his four quarters on the four gates of London f. Here is 
 a lesson for the people of England ! This case is mentioned 
 
 * The first Parliament holden in Ireland, after its subjection to the 
 Crown of England, was that at Kilkenny, an. 3 . Ed. II. the Acts 
 whereof are all printed in the Statutes of Ireland, collected by Mr. 
 Richard Bolton, printed at Dublin anno 1621. being the most ancient 
 he could find in the Records thereof, under the custody of the Master 
 of the Rolls there. (See Pry n. 011 4 th Inst. p. 259 .) 
 t See 1 Cobbett's State Trials, p. 267. No 21. 
 
 
[ 80 ] 
 
 by Lord Coke, and he declares, that “ the proceeding was 
 evil: for (says he) by the Statutes of Magna Chavta, c. 29 . 
 and 28 Edw. III. c. 5. no man ought to be condemned with- 
 out answer.” (4 Inst. 38.) 
 
 But, as Mr. Ponsonby is very fond of my Lord Ceke, I 
 will take the liberty to extract a passage from him, in order 
 to shew, that none, not even Parliament, ought to introduce 
 absolute and partial trials by discretion. Speaking, in his 
 Comment on Magna Charta, of the trial by Jury, he says, 
 <c against this ancient and fundamental law, and in the 
 face thereof, I find an act of Parliament 1 1 Hen. 7. chap^ 
 3. made, that as well Justices of Assize, as Justices of Peace, 
 (without any finding or presentment by the verdict of 
 twelve men,) upon a bare information for the King before 
 them made, should have full power and authority by their 
 discretions to hear, and determine all offences, and con- 
 tempts committed, or done by any person or persons against 
 the form, ordinance, and effect, of any statute made, and 
 not repealed. By colour of which act, shaking this funda- 
 mental law, it is not credible, what horrid oppressions and 
 exactions, to the undoing of infinite numbers of people, 
 were committed by Sir Richard Empson, Knight, and Edm. 
 Dudley, being Justices of Peace throughout England, and 
 upon this unjust and injurious act (as commonly in like 
 cases it falleth out) a new office was erected, and they made 
 masters of the King’s forfeitures.” 
 
 * It demands the most serious consideration, that Lord Coke com- 
 plains here of an Act of Parliament, that is, an Act of the three Estates. 
 If, then he declares this to be subversive of the fundamental law of a 
 trial by Jury, what shall be said of an Act of one Estate only ? Let the 
 House of Commons attend to this, and take the advice of the Roman 
 Senator. “ Quod si erratum est, Patres conscripti, Spe falsa atque fal- 
 laci ; redeamus in viam. Optimus est Portus PoeniteMi , MutATIO Cok- 
 SIUI." Cic . 
 
[ 81 ] 
 
 “ But at Parliament, holden in the first year of Henry 
 VIII. this act of 11 Hen. VII. is recited, and made void, 
 and repealed; and the reason thereof yielded, for that by 
 force of the said act, it was manifestly known, that many 
 sinister and crafty, feigned and forged informations had 
 been pursued against divers of the King’s subjects, to their 
 great damage and wrongful vexation: and the ill success 
 thereof, and the fearful ends of these two oppressors, should 
 deter others from committing the like, and should admonish 
 parliaments, — (I beseech your Lordship to attend to this 
 very important expression— not the expression of Lord Coke, 
 but of the act itself, viz. should admonish Parliaments ! ) 
 that instead of this ordinary and precious trial, per legem 
 terra, they bring not in absolute and partial trials by dis- 
 cretion.” (Vide 2 Inst. 51.) 
 
 . 
 
 Now, my Lord, what will our adversaries offer in reply ? 
 Is it absurd for us to condemn all arbitrary proceedings ? 
 Does not the aboveextract shew the horrid evils arising from 
 them ? Yes, it shews those evils, and it <c admonishes Par- 
 liaments * not to proceed in this manner. Thus much, then, 
 for the propriety of the uncontroulable power which Mr. Pon- 
 sonby wishes the House to possess. And now to the consi- 
 deration of that part of his speech, which denies the authority 
 of the Judges to interfere with the privileges of the House of 
 Commons. 
 
 Mr. Ponsonby says, that the Judges are estopped horn. 
 deciding in cases of Privilege of Parliament; nay, he uses 
 very strong language on this occasion, which I shall presently 
 mention. Mr. Prynne, however, will completely refute the 
 Right Hon. Gentleman’s position, which is taken from my 
 Lord Coke. Mr. Prynne declares, that “ when matters or 
 privilege of Parliament come judiciously before the Judges, 
 in the Courts where they sit as Judges, there they may,°do, 
 and ought to judge them: as in the case of Bartholomew 
 
 L 
 
[ 82 ] 
 
 Done ngainst John Walsh, Mich. 12. E. 4. rot. 20. in the 
 Court of Exchequer; and of John Ryver against Robert 
 Cosyn, Hil. 14. E. 4. rot. 7. Trewynnard’s case Dyer, f. 59 . 
 and sundry other cases, published in the 4th part of my 
 Brief Register of Parliamentary Writs.’* (Pryn. on 4th 
 Inst. p. 16 .) I wish Sir William Blackstone had looked 
 more into Prynne and the earlier records than he did. He 
 was too much accustomed to copy from -my Lord Coke, 
 without ever examining into his authorities. If Sir William 
 had not been so fond of prerogative, as I fear he was, he 
 would never have talked so highly of the undefined privileges 
 of Parliament. He would have discovered the writ of in- 
 quiry, which shews, that the Commons originally proceeded 
 by Jury and not at discretion ; and he would have told us, 
 that all arbitrary proceedings, however formerly exercised, 
 are completely unjust and illegal ; for that by the spirit of 
 our Constitution we are to live by law, and not by opinion *. 
 
 * It is very justly observed by the learned John Fortescue Alund, in 
 his preface to Sir John Fortescue’s “ Absolute and Limited Monarchy,’ 1 
 that, “ in other nations, every Lawyer’s opinion goes for Law, but it 
 is not so with us ; nothing passes with us for Authority or Law, bu^ 
 the mature, weighty, and deliberate judgment of a whole Court, con- 
 sisting of four learned and experienced Judges, after solemn argument, 
 cautious debate, and serious consideration.” Sir Wm. Blackstone 
 seems to have grounded what he says upon the Privilege of Parliament, 
 on the authority of Sir John Fortescue and the other judges of that 
 day, but I think that Sir John and those Judges have been completely 
 misunderstood. They could only mean to say, that they could not 
 interfere with what the Parliament should do. By which word Parlia- 
 ment, they must have meant not one, but the whole three estates ; 
 and that they did mean so, is very evident from their expression ; 
 namely, that it (the Parliament), is so high and mighty, it can make 
 law ; and that which is law, it can make no law ; whereas, they must 
 have known very well that no one estate, independent of the others, 
 could either make, or unmake laws. This, indeed, is very apparent 
 from Sir John Fortescue himself, who in his excellent work de laud. 
 
[ 83 ] 
 
 He would have reminded us of that important principle, 
 misera est servitus ubi jus est aut incognitum aut vagum. 
 But Sir William was too fond of prerogative ; and though I 
 do not wish to lessen the value of his memory, I must de- 
 clare, that with regard to privilege of Parliament, either his 
 head or his heart was very wrong. If he was not aware of 
 the writ of inquiry in the reign of Richard the Second, his 
 head is to blame; if he knew of that writ, and suppressed 
 the knowledge of it, then his heart was worse than I wish to 
 believe. The trial by Jury, (which, though not near so an- 
 cient as some writers have imagined, was certainly very ge- 
 neral in the reign of Henry the Second * ; for we find in that 
 
 Leg. Ang. c. 19. says, that « the Statute Law of England does not flow 
 from the mere will of one man, as the Laws do in those countries, 
 “ which are governed in a despotic manner 5 where sometimes the 
 nature of the Constitution so much regards the single convenience 
 M of the Legislator, whereby there accrues a great disadvantage and 
 “ disparagement to the subject. But the Statutes of England are 
 produced in quite another manner ; not enacted by the sole will of 
 U the Prmce > but with the concurrent consent of the whole kingdom : 
 and they must be amended and repealed, in the whole or in part, 
 with the same consent and in the same manner as they were at first 
 “ enacted !uto a Law.” How, then, can it be supposed, that Sir John 
 meant by the word « Parliament,” one estate only, and not the three 
 estates united together? For those only can make and repeal laws. 
 But Sir W. Blackstone, when he wrote of the undefined Privileges of Par- 
 liament, seems to have forgotten what he had said a little before j viz. 
 “ Of great importance to the Public, is the preservation of the personal 
 “ liberty of individuals ; for if once it were left in the power of any, 
 “ the highest, magistrate to imprison arbitrarily , whomever he or his 
 “ officers thought proper, there would soon be an end of all other right* 
 “ and immunities.” (Comm. vol. 1. p. 135). 
 
 * See what is said in note p. 57, as to the Trial by Jury in the time 
 of Henry II. 
 
 With regard to the province of a Jury, I shall just state that they 
 can determine as well upon the law as on the fact. In the case of 
 Penn and Meade, who in J670 were indicted for unlawfully assembling 
 the people and preaching to them, the Jury gave a verdict against the 
 
 Lg 
 
[ 84 ] 
 
 time many questions of fact relating to property were tried 
 by twelve liberos et legates homines juratos, sworn to speak 
 the truth, who were summoned by the Sheriff for that pur- 
 pose), the trial by Jury, I say, is confirmed by the Great 
 Charter, and the House of Commons used to proceed by 
 this trial in the reign of King Richard the lid. and long 
 after, till they usurped the arbitrary power to which they 
 now pretend to be entitled. 
 
 But, as I undertook, near the beginning of this letter, to 
 shew, that my Lord Holt was not quite singular in his deci- 
 sion, that the Judges could examine into matters of Parlia- 
 ment * *, I will now cite a case where he was supported by the 
 other three Judges of his Court, and judgment was given ac- 
 cordingly. This case is extremely important, as the con- 
 duct of those Judges will furnish an admirable pattern for 
 the Judges of the present day, notwithstanding the intimi- 
 dations which have been held out. Your Lordship, no 
 
 directions of the Court in point of Law, and for this were committed to 
 prison. But the commitment was questioned ; and on a Habeas Corpus 
 brought in the Court of Common Pleas, it was declared illegal ; Lord 
 Chief Justice Vaughan distinguishing himself on the occasion by a 
 most profound argument in favour of the right of a Jury. Busheil’s 
 case, 1 Freem. 1. and Vaugh. 135. In l6S0, Sir John Hawles published 
 his famous dialogue between a Barrister aud a Juryman, to assert the 
 claims of the latter against the then current doctrine denying their 
 authority. This, and the learned “ Axgument in Support of the Rights 
 “ of Juries,” by the Hon. T. Erskine (now Lord Erskine,) should be in 
 the possession of every Englishman that loves his liberty. 
 
 * The praises which Mr. Ponsonby has lavished on such Judges as 
 formerly acknowledged the omnipotence of the House of Commons, 
 and the title of singularity with which he has honoured those who 
 would not allow of such omnipotence, reminds me of an excellent ob- 
 servation of Mr. Selden ; namely, “ the Parliament-party, if the law 
 t( he for them , they call for the law ; if it be against them) they will 
 “ go to a parliamentary way / if law be for them, then for law again : 
 “ like him that first called for sack to heat him, then small drink to 
 f* cool his sack, then sack again to heat his small drink, &c.” (Vide 
 Opp. III. 2052). 
 
[ 85 ] 
 
 doubt, recollects the case, though Mr. Ponsonby may not. 
 It is “ The King and Queen against Knowles.” (Trin. 6. 
 Will. & Mary, 12. Mod. 56.) 
 
 Samuel Eyre, Justice, declared that “ this Court (the 
 King’s Bench) shall judge of the validity of all judgments 
 and records here pleaded, and whether they are legal or ef- 
 fectual, or no ; as of an Act of Parliament, what is one ; 
 that an Act by King and Lords is not a good one : and so 
 they may judge of an Order of the House of Lords, whether 
 the concurrence of the other estates of Parliament, or one of 
 them, be requisite; so the court may take judicial know- 
 ledge of the proceedings in Parliament, and of their 
 committees. 
 
 “ As to the objection, that the defendant hath, by his de- 
 murring, confessed this to be a judgment, secundum legem et 
 consuetudinem Parliamenti , this is matter of law arising 
 thereon ; and demurrer confesses only matter of fact, as 
 stated, and leaves the matter of lav/ arising thereon to the 
 judgment of the court.” 
 
 “ As to the order of the House of Lords, all the books 
 are, that a Peer cannot be degraded but by attainder, or by 
 Act of Parliament.” 
 
 Giles Eyre, Justice, agreed with his brother, and said, 
 “ the order of the Lords does not bind the liberty of the 
 subject; as 2 Inst. 47. about sending able lawyers into 
 Ireland, inferior courts are not tied up from judging their 
 proceedings void ; as if a writ of error be brought into Par- 
 liament of a judgment in the Common Pleas, whereas it 
 should have been in the King’s Bench, the Common Pleas 
 may adjudge the writ of error void, and no supersedeas , 
 and may award execution; or the King’s Bench, notwith- 
 standing this error, may examine the judgment upon writ 
 
of error. As to the demurrer, that confesses only matter of 
 fact and not of law, and lex Parliamenti is matter of* law.’* 
 
 Gregory, Justice, agreed in every thing said by his bre- 
 thren. 
 
 Holt, Chief Justice, in a most luminous speech, declared 
 that “ the Court of Parliament consists of King, Lords, 
 and Commons.” (Cromp. Jurisd. of Courts, 1. 4 Inst. 1. 
 Dyer 60.) And after having spoken at some length of the 
 legislative and judicial power of the Lords, he says, “ As 
 to the secundum legem et consuetudinem Parliamenti , that is 
 added by the King’s Council only in terrorem. Lex Par- 
 liamenti is lex terrae, and if a question concerning it doth 
 arise in a cause of which the King’s Bench has proper cog- 
 nizance, the King’s Bench may adjudge of it as the Spiritual 
 Courts do of temporal judgments, as patents, deeds, &c. 
 for the cognizance of the principal draws with it the cogni- 
 zance of the accessaries and incidents. (Dyer 60. ) And 
 this holds in case of privilege of Parliament ; as in Sir John 
 Benyon s case, Trin. 14. Car. 2. in the Common Pleas, where 
 filing an original against a sitting Member was adjudged no 
 breach of privilege*. It is no new thing for our Common 
 Law Courts to examine matters of this nature , which con- 
 cern proceedings in Parliament ; we do but follow the ex- 
 amples of our predecessors. In the 38th year of Edward 
 the Third, the Bishop certified to this Court, that the father 
 and mother were married, but that the party was born in 
 
 * Mr. Hargrave possesses a very fall report in MS. of Lord Chief 
 Justice Bridgeman’s learned judgment in the case of Benyon and Evelyn, 
 C. B. Trin. 14. Car. 2- in which after a very extensive investigation of 
 the law upon the subject, the authority of the Judges to take cogni- 
 zance of questions of Privilege of Parliament is asserted, and that au- 
 thority was accordingly exercised in that case. See 6 Cobbett’s St. 
 Tr. p. 1126. 
 
[ 87 ] 
 
 adultery; the Lords sent a writ to the Judges, and ordered 
 them to judge on the special matter: but the Judges did 
 not obey. In Stanton’s case, the Lords commanded the 
 Court of Common Pleas to give a judgment, the Chief 
 Justice refused; afterwards, in his absence, the others com- 
 plied, and gave judgment ; the King’s Bench afterwards 
 examined the proceedings of the Lords, and adjudged them 
 void: as appears 15 Edw. III. 1, 2, in the Oxford Library. 
 We are not to delay the Justice of the Land , and the law of 
 it is our rule ; and for these reasons, let the indictment be 
 quashed. And this w r as done accordingly. 
 
 My Lord, I am certain, that your Lordship must not 
 only concur in opinion with these learned judges, but also 
 admire their wisdom and integrity; and I have no doubt 
 that my Lord EUenborough and his brethren will act in the 
 same upright and patriotic manner. The law of the land is 
 their rule, and they are bound by an oath duly to administer 
 the law * The King's Attorney-General may tell my Lord 
 EUenborough, that he cannot interfere with any thing done 
 by the Commons ; but his Lordship can borrow the expres- 
 sion of Lord Holt, and say— “ It is only added in terrorem 
 He has the same cases, and the same arguments, to support 
 
 * Mr. Christian very truly observes, “that in no case whatever ean 
 a judge oppose his own opinion and authority, to the clear will and 
 declaration of the legislature. His province is to interpret and obey 
 the mandates of the supreme power of the State. And if an Act of 
 Parliament, if we could suppose such a case, should, like the edict of 
 Herod, command all the children under a certain age to be slain, the 
 Judge ought to resign his office rather than be auxiliary to its execu- 
 tion ; but ,t could only be declared void by the same legislative power 
 y which it was ordained. Comm. l. 41 . n. 3. This learned annotator 
 differs very much from his Author, with regard to the Privileges of 
 ar lament ; and says, that a discretionary power in the Two Houses 
 of Parliament is repugnant to the spirit of our Constitution. Comm i 
 104. n. 18. 19. 
 
[ 88 ] 
 
 him, as his great predecessor and the other three judges 
 had; and those cases are enough to prove, that the Court 
 of King’s Bench holds jurisdiction in cases of Privilege of 
 Parliament. He will not, nor will any of his brethren, be 
 deterred or intimidated by the observation of Mr. Ponsonby, 
 that “ it would be a gross dereliction of duty— a gross trans- 
 gression of the law of the land — for any judge, under any 
 circumstances, to interfere with the Privileges of the Com- 
 mons.” This is a language which the Right Hon. Gen- 
 tleman ought not to have used ; it is (as my Lord Holt 
 said) “ in terror em but the judges will not regard it, 
 
 they will remember their oaths. The judges of the Court 
 of King’s Bench are much better read in the laws and con- 
 stitution of this country, than Mr. Ponsonby appears to be : 
 and they all know, that they are not to delay the justice of 
 the land. They know, that the Great Charter contains a 
 very plain and explicit declaration as to the protection which 
 every man may expect from the laws of this country, and 
 they know what is said in the confirmation of that Charter 
 by the Act of 25 Edward I. “ And we will (says that sta- 
 tute) that our justices, which under us have the laws of our 
 land to guide, shall allow the same Charter, pleaded before 
 them in all its points as the common law.” Chap. 2. — And 
 we will, that if anyjudgment be given from henceforth, con- 
 trary to the points of the Charter aforesaid by the j ustices, 
 it shall be undone, and holden for nought*.” 
 
 ♦The true meaning of the words of Magna Charta, “ per legem 
 terra” is very clearly explained by the learned Mr. Selden, in his ar- 
 gument for Sir Edmund Hampden. He says — “ If the Statute of Magna 
 Charta were fully executed, as it ought to be, every man would enjoy 
 his liberty better than he doth. 
 
 “ The Law saith expressly, No freeman shall be imprisoned without 
 due process of law. Out of the very body of this Act of Parliament, 
 besides the explanation of other Statutes, it appears, nullus liber homo 
 capiatur vel imprisonetur nisi per legem terra. My Lord, I know these 
 
My Lord, I shall now beg leave to conclude. I have Al- 
 lowed Mr. Ponsonby step by step, and I shall be ready to 
 
 words legem terras , do leave the question where it was, if the inter- 
 pretation of the Statute were not. But 1 think, under your Lordship’s 
 favour, there it must be intended by due course of law to be, either by 
 presentment or by indictment . 
 
 “ My Lord, if the meaning of these words per legem terras , were but 
 as we use to say, according to the laws, which leaves the matter very 
 uncertain; and per speciale mandatum , &c. be within the meaning of 
 these words, according to the law, then this act had done nothing. The 
 act is, no Freeman shall be imprisoned but by the law of the land ; if 
 you will understand these words, per legem terrce , in the first sense, this 
 statute shall extend to villeins, as Well as to freemen ; for if I imprison 
 another man, villein, the villein may have an action of false impri- 
 sonment. But the Lords and the King (for then they both had villeins) 
 might imprison them, and the villein could have no remedy ; but these 
 words in the Statute per legem terrce f were to the freeman, which ought 
 not to be imprisoned, but by due process of law ; and unless the inter- 
 pretation shall be this, the freeman shall have no privilege above the 
 villein. 
 
 “ So that I conceive, my Lord, these words per legem terras , must be 
 here so interpreted as in 42 Eliz. The bill is worth the observing ; it 
 reciteth, that divers persons without any writ, or presentment, were 
 cast into prison, &c. That it might be enacted, that it should not be 
 so done hereafter ; the answer there is, that this is an article of the 
 Great Charter, this should be granted. So that it seems the Statute 
 is not taken to be an explanation of that of Magna Charta, but the very 
 words of the Statute of Magna Charta .” Vid. Opp. III. 1938. 
 
 In order to explain to such readers as may not clearly understand 
 what the word villein originally signified, I shall beg to observe, that 
 at the time the Great Charter was made, and for many ages after, the 
 nation consisted wholly of the Clergy, who were also the Lawyers ; the 
 Barons, or great Lords of the land ; the Knights or soldiery, who were 
 the subordinate landholders; and the Burghers, or inferior tradesmen, 
 who from their insignificancy happily retained in their socage and bur- 
 gage tenure, some points of their ancient freedom. All the rest were 
 villiens or bondmen. ( 4 . Comm. 419.) One cannot reflect upon the con- 
 dition of the villein without the most lively emotion. His services were 
 not only base, but uncertain both as to their time and quantity. He wa 
 
 M 
 
[ 90 ] 
 
 follow him still farther whenever he is disposed to proceed. 
 To yon, my Lord, the people are now looking up with a pe- 
 culiar degree of confidence. They remember, with gratitude 
 and delight, the many noble stands which you have made 
 for their liberties; and above all, for the Trial by Jury, 
 which is the motto of your Lordship’s arms. They have 
 witnessed the candour — they have felt the generosity — they 
 have admired the nobility of soul which is contained in your 
 Lordship’s speech in the House of Peers on the subject now 
 before us. Your Lordship is truly noble; for virtue is the 
 only true nobility ; and greater virtue cannot be displayed 
 than in important services done to your countrymen. Y our 
 Lordship has often served your country, but your zeal has 
 never been more conspicuous than in the declaration, that 
 “ you would sooner die, than submit to any dominion but 
 that of the law.” You said, that if the House of Commons 
 should dare to commit your learned friend Lord Ellen- 
 borough, as they formerly committed Lord Chief Justice 
 Pemberton, “ you would resist the usurpation with your 
 strength, and bones, and blood.” This, my lord, was ex- 
 cellently said ; it confirms the character which you have al- 
 
 not protected by the Great Charter ; no freeman shall be taken or impri- 
 soned, &c. was cautiously expressed to exclude the poor villein ; for, 
 as Sir Edward Coke tells us, the lord, though he may not kill or maim, 
 way heat his villein, and if it he without cause, he cannot have any 
 remedy. But (thank God!) the fetters of villeinage have long been 
 shaken off: the last claim of it, which we find recorded in our Courts, 
 was in the 15 th of James I. and nothing can be more notorious, than 
 that the race of persons who were once the objects of it, was about that 
 time completely worn out by the continual and united operation of 
 death and manumissions. (Vid. 11. Harg. St. Tr. 342). Every Eng- 
 lishman is now a freeman, and, as such, cannot be imprisoned but by 
 due process of law, which, as Mr. Selden observes, is the true meaning of 
 the words per legem terrce. Let us, then, he grateful to heaven for our 
 liberties, and consider it as a point of conscience, not only to secure the 
 enjoyment of them to ourselves, but also to transmit them to omr pos- 
 terity as the noblest inheritance of mankind, 
 
C 91 ] 
 
 ways maintained; and you very properly observe, that 
 “ what has been the character of your mind and under- 
 standing must continue to be its character.” Your Lord- 
 ship will not be governed by party, nor can you ever com- 
 promise the independence of your principles ; you are a 
 constant, resolute, and honest man. I am confident you 
 must acknowledge, that the House of Commons have car- 
 ried this matter too far ; they have not attended to the sta- 
 tute of the 1st of Henry VIII. which admonishes Parliaments, 
 that instead of the ordinary and precious trial by Jury, they 
 bring not in absolute and partial trials by Discretion.” 
 Let us hope then, my Lord, that our laws will prevail; 
 nay, they must prevail, for they stand upon too firm a 
 basis to be shaken by Mr. Ponsonby, or the whole 
 House of Commons put together. Their custom amounts 
 to nothing ; it has not existed from that period of time 
 which the law requires in order to make it good : and 
 besides, it is against, and in the very face of, the ancient 
 and fundamental law of a trial by Jury. It is contrary even 
 to the original proceeding of the Commons themselves, 
 which was, I repeat, in the reign of Richard II. by the ver- 
 dict of twelve men. Their present proceeding is a complete 
 usurpation of the rights and liberties of the people — an un- 
 warrantable oppression, in open violation of King John’s 
 Great Charter; and such, no doubt, the judges, who hatve 
 power, will feel themselves obliged, by their oaths, to de- 
 clare, in spite of the remarks and intimidations which some 
 learned persons have thought proper to throw out. The 
 judges know their duty, and the people are confident that 
 they will perform it. 
 
 With the highest respect for your Lordship, 
 
 I have the honour to be, my Lord, 
 
 Your most obedient, humble servant. 
 
 PUBLICOLA. 
 
Printed by T. Collins, 
 Harrey’s Buildings, Strand, London. 
 
 

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