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The Letters of Junius

Letter XLVIII: To the Printer of the Public Advertiser; 28 May 1771

[195] SIR

Any man who takes the trouble of perusing the Journals of the House of Commons, will soon be convinced, that very little, if any regard at all, ought to be paid to the resolutions of one branch of the legislature, declaratory of the law of the land, or even of what they call the law of parliament. It will appear that these resolutions have no one of the properties by which, in this country particularly, law is distinguished from mere will and pleasure; but that, on the contrary, they bear every mark of [196] a power arbitrarily assumed and capriciously applied: that they are usually made in times of contest, and to serve some unworthy purpose of passion or party; that the law is seldom declared until after the fact by which it is supposed to be violated; that legislation and jurisdiction are united in the same persons, and exercised at the same moment; and that a court from which there is no appeal, assumes an original jurisdiction in a criminal case. In short, sir, to collect a thousand absurdities into one mass, "we have a law which cannot be known, because it is ex post facto: the party is both legislator and judge, and the jurisdiction is without appeal." Well might the judges say, "The law of parliament is above us."

You will not wonder, sir, that with these qualifications, the declaratory resolutions of the house of commons should appear to be in perpetual contradiction, not only to common sense, and to the laws we are acquainted with, (and which alone we can obey,) but even to one another. I was led to trouble you with these observations by a passage, which, to speak in lutestring, "I met with this morning in the course of my reading", and upon which I mean to put a question to the advocates for privilege. On the 8th of March, 1704, (Vide Journals, Vol. xiv. p. 566,) the house thought proper to come to the following resolutions: "That no commoner of England committed by the house of commons for breach of privilege or contempt of that house, ought to be, by any writ of Habeas Corpus, made to appear in any other place, or before any other judicature, during that session of parliament wherein such person was so committed." 2. "That the serjeant at arms, attending this house, do make no return of, or yield any obedience to, the said writs of Habeas Corpus; and for such his refusal, that he have the protection of the house of commons."*

* If there be, in reality, any such law in England as the Law of Parliament, which (under the exception stated in my letter on privilege) I confess, after long deliberation, I very much doubt, it certainly is not constituted by, nor can it be collected from, the resolutions of either house, whether enacting or declaratory. I desire the reader will compare the above resolutions of the year 1704, with the following of the 3d of April, 1628.—" Resolved, That the writs of Habeas Corpus cannot be denied, but ought to be granted to every man that is committed or detained in prison, or otherwise restrained by the command of the king, the privy council, or any other, he praying the same."

[197] Welbore Ellis, what say you? Is this the law of parliament, or is it not? I am a plain man, sir, and cannot follow you through the phlegmatic forms of an oration. Speak out, Grildrig ["little dwarf" - see Gulliver's Travels], say yes or no. If you say yes, I shall then inquire by what authority Mr. de Grey, the honest lord Mansfield, and the barons of the exchequer, dared to grant a writ of Habeas Corpus for bringing the bodies of the lord mayor and Mr. Oliver before them; and why the lieutenant of the Tower made any return to a writ, which the house of commons had, in a similar instance, declared to be unlawful. If you say no, take care you do not at once give up the cause in support of which you have so long and so laboriously tortured your understanding. Take care you do not confess that there is no test by which we can distinguish, no evidence by which we can determine, what is, and what is not, the law of parliament. The resolutions I have quoted, stand upon your Journals, uncontroverted and unrepealed: they contain a declaration of the law of parliament, by a court competent to the question, and whose decision, as you and lord Mansfield say, must be law, because there is no appeal from it: and they were made not hastily, but after long deliberation upon a constitutional question. What farther sanction or solemnity will you annex to any resolution of the present house of commons, beyond what appears upon the face of those two resolutions, the legality of which you now deny? If you say that parliaments are not infallible and that queen Anne, in consequence of the violent proceedings of that house of commons, was obliged to prorogue and dissolve them, I shall agree with you very heartily, and think that the precedent ought to be followed immediately. But you, Mr. Ellis, who hold this language, are inconsistent with your own principles. You have hitherto maintained, that the house of commons are the sole judges of their own privileges, and that their declaration does ipso facto constitute the law of parliament; yet now you confess that parliaments are fallible, and that their resolutions may be illegal; consequently that their resolutions do not constitute the law of parliament. — When the king was advised to dissolve the present parliament, you advised him to tell his subjects, — that he was careful not to assume any of those powers which the constitution had placed in other hands, &c. Yet Queen Anne, [198] it seems, was justified in exerting her prerogative to stop a house of commons, whose proceedings, compared with those of the assembly of which you are a most worthy member, were the perfection of justice and reason.

In what a labyrinth of nonsense does a man involve himself who labours to maintain falsehood by argument! How much better would it become the dignity of the house of commons, to speak plainly to the people, and tell us, at once, — that their will must be obeyed; not because it is lawful and reasonable, but because it is their will! — Their constituents would have a better opinion of their candour, and, I promise you, not a worse opinion of their integrity.

Philo Junius

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