if the advice of parliament were good, the King would be fo ready to follow it.

PHILO JUNIUS.

LETTER XLVI.

ADDRESSED TO THE PRINTER OF THE PUB LICK ADVERTISER.

SIR,

May 22. 1771. VERY early in the debate upon the decifion of

the Middlefex election, it was well obferved by Junius, that the house of commons had not only exceeded their boafted precedent of the expulfion and fubfequent incapacitation of Mr. Walpole, but that they had not even adhered to it frictly, as far as it went. After convicting Mr. Dyfon of giving a falfe quotation from the journals, and having explained the purpofe which that contemptible fraud was intended to anfwer, he proceeds to ftate the vote itself by which Mr. Walpole's fuppofed incapacity was declared, viz. "Re"folved, That Robert Walpole, Efq; having been "this feffion of parliament committed a prifoner "to the Tower, and expelled this Houfe for a high "breach of truft in the execution of his office, and "notorious corruption when fecretary at war, was, "and is, incapable of being elected a member to "ferve in this prefent parliament."—And then obferves, that, from the terms of the vote, we have no right to annex the incapacitation to the expul fion only; for that, as the propofition stands, it must arife equally from the expulfion and the commitment to the Tower. I believe, Sir, no man, who knows any thing of dialecticks, or who understands English, will dispute the truth and fairness of this: conftruction. But Junius has a great authority to fupport him; which, to fpeak with the Duke of

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Grafton

Grafton, I accidentally met with this morning in the course of my reading. It contains an admonition, which cannot be repeated too often. Lord Sommers, in his excellent Tract upon the Rights of the People, after reciting the votes of the convention of the 28th of January 1689, viz.-" That King James II. having endeavoured to fubvert "the conftitution of this kingdom, by breaking the "original contract between King and people; and, "by the advice of Jefuits, and other wicked per"fons, having violated the laws, and having with"drawn himself out of this kingdom, hath abdi"cated the government," &c.-makes this obfervation upon it: "The word abdicated relates to all "the claufes aforegoing, as well as to his deferting. "the kingdom, or elfe they would have been wholly "in vain." And, that there might be no pretence for confining the abdication merely to the withdrawing, Lord Sommers farther obferves, That King ·James, by refufing to govern us according to that law by which he held the Crown, did implicitly renounce

his title to it.

If Junius's conftruction of the vote against Mr. Walpole be now admitted, (and indeed I cannot comprehend how it can honeftly be difputed), the advocates of the house of commons muft either give up their precedent entirely, or be reduced to the neceffity of maintaining one of the groffeft abfurdities imaginable, viz. "That a commitment to the "Tower is a constituent part of, and contributes "half at least to, the incapacitation of the perfon "who fuffers it."

I need not make you any excufe for endeavouring to keep alive the attention of the publick to the decifion of the Middlefex election. The more I confider it, the more I am convinced, that, as a fast, it is indeed highly injurious to the rights of the people; but that, as a precedent, it is one of the most dangerous that ever was established against thofe

who

who are to come after us. Yet I am fo far a moderate man, that I verily believe the majority of the houfe of commons, when they paffed this dangerous vote, neither underftood the queftion, nor knew the confequence of what they were doing. Their motives were rather defpicable, than criminal in the extreme. One effect they certainly did not forefec. They are now reduced to fuch a fituation, that if a member of the prefent house of commons were to conduct himself ever fo improperly, and in reality deserve to be fent back to his conftituents with a mark of difgrace, they would not dare to expel him; because they know that the people, in order to try again the great queftion of right, or to thwart an odious house of commons, would probably overlook his immediate unworthiness, and return the fame perfon to parliament.-But, in time, the precedent will gain ftrength. A future houfe of commons will have no fuch apprehenfions, confequently will not fcruple to follow a precedent which they did not establish. The mifer himself feldom lives to enjoy the fruit of his extortion; but his heir fucceeds to him of course, and takes poffeffion without cenfure. No man expects him to make restitution; and, no matter for his title, he lives quietly upon the estate. PHILO JUNIUS.

LETTER XLVII.

TO THE PRINTER OF THE PUBLICK ADVER

I

SIR,

TISER.

May 25. 1771. CONFESS my partiality to Junius, and feel a confiderable pleasure in being able to communicate any thing to the publick in fupport of his opinions. The doctrine laid down in his laft letter, concerning the power of the houfe of commons to commit for contempt, is not so new as it appeared

appeared to many people; who, dazzled with the name of privilege, had never fuffered themselves to examine the queftion fairly. In the courfe of my reading this morning, I met with the following pal fage in the Journals of the House of Commons, (Vol. I. page 603.) Upon occafion of a jurifdiction unlawfully affumed by the house in the year 1621, Mr. Attorney-General Noje gave his opinion as follows: "No doubt bat, in fome cafes, this

houfe may give judgment ;-in matters of re"turns, and concerning members of our house, "or falling out in our view in parliament; but, "for foreign matters, knoweth not how we can "judge it.-Knoweth not that we have been used "to give judginent in any cafe, but thofe before" mentioned."

Sir Edward Coke, upon the fame fubject, fays, (page 604), "No queftion but this is a houfe of "record, and that it hath power of judicature in "fome cafes ;-have power to judge of returns

and members of our houfe; one, no member, "offending out of the parliament, when he came "bither and juftified it, was cenfured for it."

Now, Sir, if you will compare the opinion of thefe great fages of the law with Junius's doctrine, you will find they tally exactly. He allows the power of the houfe to commit their own members, (which, however, they may grofsly abuse): He allows their power in cafes where they are acting as a court of judicature, viz. elections, returns, &c.; and he allows it in fuch contempts immediately interrupt their proceedings; or, as Mr. Noye expreffes it, falling out in their view in parliament.

as

They who would carry the privileges of parlia ment farther than Junius, either do not mean well to the publick, or know not what they are doing. The government of England is a government of law. We betray ourfelves, we contradict the fpi

rit

rit of our laws, and we fhake the whole fyftem of English jurisprudence, whenever we intrust a difcretionary power over the life, liberty, or fortune of the fubject, to any man or fet of men whatsoever, upon a prefumption that it will not be abused. PHILO JUNIUS.

LETTER XLVIII.

TO THE PRINTER OF THE PUBLICK ADVER]

SIR,

TISER.

May 28. 1771. ANY man who takes the trouble of perufing the journals of the house of commons, will foon be convinced, that very little, if any regard at all, ought to be paid to the refolutions of one branch of the legislature, declaratory of the law of the land, or even of what they call the law of parliament. It will appear that these refolutions have no one of the properties, by which, in this country particularly, law is diftinguished from mere will and pleafure; but that, on the contrary, they bear every mark of a power arbitrarily affumed, and capriciously applied :-That they are usually made in times of conteft, and to ferve fome unworthy purpofe of paffion or party;-that the law is feidom declared until after the fact by which it is fuppofed to be violated;-that legislation and jurisdiction are united in the fame perfons, and exercised at the fame moment;-and that a court, from which there is no appeal, affumes an original jurifdiction in a criminal cafe: in fhort, Sir, to collect a thousand abfurdities into one mafs, "we have a law, which

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cannot be known because it is ex poft facto; the party is both legiflator and judge, and the ju"rifdiction is without appeal." Well might the judges fay, The law of parliament is above us.

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