Fame says nothing is to be done the first day in the Commons relative to the Speech and Address,

tution.* Under pretence of declaring the law, they have made a law, and united in the same persons the office of legislator and of judge.†

"I shall endeavour to adhere strictly to the noble lord's doctrine, which it is indeed impossible to mistake, so far as my memory will permit me to preserve his expressions. He seems fond of the word 'jurisdiction;' and I confess, with the force and effect which he has given it, is a word of copious meaning and wonderful extent. If his lordship's doctrine be well founded, we must renounce all those political maxims by which our understandings have hitherto been directed, and even the first elements of learning taught us in our schools when we were school-boys. My lords, we knew that jurisdiction was nothing more than jus discere; we knew that legem facere and legem discere were powers clearly distinguished from each other in the nature of things, and wisely separated by the wisdom of the English constitution; but now, it seems, we must adopt a new system of thinking. The House of Commons, we are told, have a supreme jurisdiction; and there is no appeal from their sentence; and that wherever they are competent judges, their decision must be received and submitted to, as ipso facto, the law of the land. My lords, I am a plain man, and have been brought up in a religious reverence for the original simplicity of the laws of England. By what sophistry they have been perverted, by what artifices they have been involved in obscurity, is not for me to explain; the principles, however, of the English laws, are still sufficiently clear: they are founded in reason, and are the master-piece of the human understanding; but it is in the text that I would look for a direction to my judgment, not in the commentaries of modern professors. The noble lord assures us, that he knows not in what code the law of parliament is be found; that the House of Commons, when they act as judges, have no law to direct them but their own wisdom; that their decision is law; and if they determine wrong, the subject has

mons,

"Their rights have been arbitrarily invaded by the present House of Comand the constitution betrayed.”— Junius, ii. 88.

t "Legislation and jurisdiction are united in the same persons."— Ibid. ii. 237.—“This tribunal unites in the same persons the verdict, the explanation of the law, and the sentence."- -Sir P. Francis's Speech, March 7, 1786.

"You have maintained that the House of Commons are the sole judges of their own privileges, and that their declaration does, ipso facto, constitute the law of parliament.”—Junius, ii. 240.

§ "Is this the law of parliament, or is it not? I am a plain man, Sir."Ibid. ii. 239. "Suffer me then, for I am a plain unlettered man.”—Ibid. i.

440.

but a day moved for going into the state of the Of this, Lord Temple will give your

nation.

no appeal but to Heaven.* What then, my lords, are all the generous efforts of our ancestors, are all those glorious contentions, by which they meant to secure themselves, and to transmit to their posterity a known law, a certain rule of living; reduced to this conclusion, that instead of the arbitrary power of a King, we must submit to the arbitrary power of a House of Commons? If this be true, what benefit do we derive from the exchange? Tyranny, my lords, is detestable in every shape; but in none so formidable as when it is assumed and exercised by a number of tyrants. But, my lords, this is not the fact, this is not the constitution; we have a law of parliament, we have a code in which every honest man may find it. We have a Magna Charta, we have the Statute Book, and the Bill of Rights. †

"If a case should arise unknown to these great authorities, we have still that plain English reason left, which is the foundation of all our English jurisprudence. That reason tells us, that every judicial court, and every political society, must be vested with those powers and privileges which are necessary for performing the office to which they are appointed. It tells us also, that no court of justice can have a power inconsistent with, or paramount to, the known laws of the land; that the people, when they choose their representatives, never mean to convey to them a power of invading the rights, or trampling upon the liberties, of those whom they represent. What security would they have for their rights, if once they admitted, that a court of judicature might determine every question that came before it, not by any known, positive law, but by the vague, indeterminate, arbitrary rule, of what the noble lord is pleased to call the wisdom of the court? With respect to the decision of the courts of justice, I am far from denying them their due weight and authority; yet, placing them in the most respectable view, I still consider them not as law, but as an evidence of the law; and before they can arrive even at that degree of authority, it must appear, that they are founded in, and confirmed by, reason; that they are supported by precedents taken from good and moderate times; that they do not contradict any positive law; that they are submitted

*"The House of Commons judge of their own privileges without appeal.”— Junius, iii. 374.

"This doctrine is not to be found in Magna Charta.”— Ibid. iii. 374. "The people will surrender every thing rather than submit to be trampled on by five hundred of their equals."— Ibid. iii. 379. "You will not leave it to the choice of seven hundred persons notoriously corrupted by the crown, whether seven millions of their equals shall be freemen or slaves.”—Ibid. i. 346.

+ "The judge, instead of strictly consulting the law of the land, refers only to the wisdom of the court."-Ibid. ii. 164.

Lordship the best information. I am always, with

true respect,

Your Lordship's most affectionate

and faithful humble servant,

J. CALCRAFT.

to, without reluctance, by the people; that they are unquestioned by the legislature (which is equivalent to a tacit confirmation); and what, in my judgment, is by far the most important, that they do not violate the spirit of the constitution. My lords, this is not a vague or loose expression: we all know what the constitution is; we all know that the first principle of it is, that the subject shall not be governed by the arbitrium of any one man, or body of men (less than the whole legislature), but by certain laws, to which he has virtually given his consent, which are open to him to examine, and not beyond his ability to understand. Now, my lords, I affirm, and am ready to maintain, that the late decision of the House of Commons upon the Middlesex election, is destitute of every one of those properties and conditions which I hold to be essential to the legality of such a decision. It is not founded in reason; for it carries with it a contradiction, that the representative should perform the office of the constituent body. It is not supported by a single precedent; for the case of Sir Robert Walpole is but a half precedent, and even that half is imperfect.* Incapacity was indeed declared, but his crimes are stated as the ground of the resolution, and his opponent was declared to be not duly elected, even after his incapacity was established. It contradicts Magna Charta and the Bill of Rights, by which it is provided, that no subject shall be deprived of his freehold, unless by the judgment of his peers, or the law of the land; and that elections of members to serve in parliament shall be free; and so far is this decision from being submitted to by the people, that they have taken the strongest measures, and adopted the most positive language to express their discontent. Whether it will be questioned by the legislature, will depend upon your lordships' resolution; but that it violates the spirit of the constitution ‡, will, I think, be disputed by no man who has heard this day's debate, and who wishes well to the freedom of his country; yet, if we are to believe the noble lord, this great grievance, this manifest violation of the first

*No part of a precedent should be admitted, unless the whole of it be given together. The author has divided his precedent.”—Junius, i. 555. "Mr. Walpole's incapacity arose from the crimes he had committed." - Ibid. i. 556.

"He violates the spirit of the constitution.”— Ibid. i. 382.

THE EARL OF CHATHAM TO JOHN CALCRAFT, ESQ.

[In the handwriting of Lady Chatham.]

Hayes, Sunday, January 7, 1770.

LORD CHATHAM desires to return Mr. Calcraft a thousand thanks for the favour of his letter, and

principles of the constitution*, will not admit of a remedy; is not even capable of redress, unless we appeal at once to Heaven. My lords, I have better hopes of the constitution, and a firmer confidence in the wisdom and constitutional authority of this house. It is your ancestors, my lords, it is to the English barons that we are indebted for the laws and constitution we possess. Their virtues were rude and uncultivated, but they were great and sincere. Their understandings were as little polished as their manners, but they had hearts to distinguish right from wrong; they had heads to distinguish truth from falsehood; they understood the rights of humanity, and they had spirit to maintain them.

My lords, I think, that history has not done justice to their conduct, when they obtained from their sovereign that great acknowledgment of national rights contained in Magna Charta: they did not confine it to themselves alone, but delivered it as a common blessing to the whole people. They did not say, These are the rights of the great barons, or these are rights of the great prelates: - No, my lords; they said, in the simple Latin of the times, nullus liber homo, and provided as carefully for the meanest subject as for the greatest. These are uncouth words, and sound but poorly in the ears of scholars; neither are they addressed to the criticism of scholars, but to the hearts of free men. These three words, nullus liber homo, have a meaning which interests us all; they deserve to be remembered they deserve to be inculcated in our minds they are worth all the classics. Let us not, then, degenerate from the glorious example of our ancestors. Those iron barons (for so I may call them when compared with the silken barons of modern days), were the guardians of the people; yet their virtues, my lords, were never engaged in a question of such importance as the present. A breach has been made in the constitution the battlements are dismantled citadel is open to the first invader-the walls totter- the constitution

the

* "When I see the first principles of the constitution openly violated.”Junius, i. 479.

hopes, as Lord Temple is just come in, he will excuse his answering only with a few lines. With

is not tenable. What remains then, but for us to stand foremost in the breach, to repair it or perish in it ?

"Great pains have been taken to alarm us with the consequences of a difference between the two houses of parliament; that the House of Commons will resent our presuming to take notice of their proceedings; that they will resent our daring to advise the Crown, and never forgive us for attempting to save the state. My lords, I am sensible of the importance and difficulty of this great crisis: at a moment, such as this, we are called upon to our duty, without dreading the resentment of any man. But if apprehensions of this kind are to affect us, let us consider which we ought to respect most the representative, or the collective body of the people. My lords, five hundred gentlemen are not ten millions; and if we must have a contention, let us take care to have the English nation on our side. If this question be given up, the freeholders of England are reduced to a condition baser than the peasantry of Poland. If they desert their own cause, they deserve to be slaves! My lords, this is not merely the cold opinion of my understanding, but the glowing expression of what I feel. It is my heart that speaks; I know I speak warmly, my lords; but this warmth shall neither betray my argument nor my temper. The kingdom is in a flame. As mediators between the King and people, it is our duty to represent to him the true condition and temper of his subjects. It is a duty which no particular respects should hinder us from performing; and whenever his Majesty shall demand our advice, it will then be our duty to inquire more minutely into the causes of the present discontents. Whenever that inquiry shall come on, I pledge myself to the house to prove, that since the first institution of the House of Commons, not a single precedent can be produced to justify their late proceedings. My noble and learned friend (the Lord Chancellor) has pledged himself to the house, that he will support that assertion.

"My lords, the character and circumstances of Mr. Wilkes have been very improperly introduced into this question, not only here, but in that court of judicature where his cause was tried: I mean the House of Commons. With one party he was a patriot of the first magnitude: with the other the vilest incendiary. For my own part

*The formality of a well repeated lesson is widely different from the animated expression of the heart." Junius, ii. 124.-" The subject comes home to us all. It is the language of my heart." ii. 344.