LETTER 
 
 T O 
 
 Dr. B LAC KSrO N E, 
 
 By the. Author of the ^ejtion Stated, 
 
 Mother, for love of Grace, 
 Lay not that fatttring Un£iion to your Soul, 
 That not your Trefpafs, but my Madnefs fpeah : 
 It will but /kin and film the ulcerous Place, 
 fyhiljl rank Corruption mining all xviihin 
 Infers unfeen. Confefs yourfclf to Heaven^ 
 Repent what's pajl, avoid what is to come, 
 Jnd do not fpreadihe Compojl on the IVeeds 
 To make them ranker. 
 
 Haivilet. 
 
 To which is prefixed, 
 
 Dr. BLACKSrONEs LETTER 
 
 T O 
 
 Sir WILLIAM MEREDITH. 
 
 L O IN D O ISI: 
 
 Printed for G. Woodfall, Charing-Crofs ; and Mt-flVs. 
 Richardson and Urqvhart, under the Royal 
 Exchange. 1 7 70.
 
 A 
 
 LETTER 
 
 T O T H E 
 
 AUTHOR 
 
 O F T H 1 
 
 QJJ ESTION STATED. 
 
 SIR, 
 
 IN your Letter to one of your Conftltuents, you are 
 pleafed to make honourable Mention of a Work*, 
 compiled many Years ago, and fince publilhed for the Ufc 
 of young Students : But at the fame Time you infinuate, 
 that the Author, upon a late Occafion, had departed from 
 the Principles which hs there has inculcated and avowed. 
 
 The Gentleman, wliofe Conduct upon that Occafion 
 has been arraigned in no very candid Manner, is much 
 obliged to his Antagonifts for the Compliment they have 
 paid him, in fuppofing that the Uniformity of his Sentiments 
 could poflibly be of Confequence to the Public, or merit 
 Its ferious Attention. Yet he did not, for fome Time, 
 confider the Accufatlon as worthy the leaft Degree of 
 Notice. When this Calumny was firft folemny breached 
 by a Perfon, who (of all Men) fhould not have complained 
 of Inconfiftency with Regard to Mr. IVilkcs^ that Gentle- 
 
 *" Commeatarles on the Laws «f £nj 'tnJ. 
 
 A man 
 
 -r's m a 
 
 fitr/j
 
 ( 2 ) 
 
 all your excellent Writings over again, before 
 I ventured any more to quedion their Corref- 
 pondence with the political Tenets you have 
 lince maintained in the Houfe of Commons. 
 
 Proud am I to repeat my Admiration of 
 your Commentaries oa the Lavi^s of England, 
 which have introduced to our Acquaint- 
 ance, a Sydem that was mod important for 
 every Man to know; yet, 'till you brought 
 it from Darkncfs into Light, had been as care- 
 fully fecreted from common Underfiandings, 
 as the Myileries ot Religion ever were. Nor 
 does the Improvement of Individuals alone 
 refult from your Labors ; The Public reaps 
 this Advantage from them, that the better 
 our Laws are known, the better they will be 
 obeyed ; and the Zeal to defend our Confli- 
 tution be ftrengthencd, in proportion as that; 
 Zeal is founded upon Knowledge. 
 
 And though I am forry to adhere to an 
 Exprefiion, that has given you the Trouble 
 of a public AniiUridverfion upon it -, yet the 
 fame Motive that induced you to attempt to 
 vindicate yourfclf from a Charge of Inconfil- 
 
 tency,
 
 ( 3 ) 
 
 tcncy, will plead my Pardon for endeavor- 
 ing to clear myfelf of an Accufation of mif- 
 reprefenting your Words, and mif-quoting 
 your Book. 
 
 You have nov^^. Sir, with Fairnefs and 
 Candor, Hated your Do(flrine in the Houfc 
 of Commons ; it is impoffible to miftake it : 
 I can therefore, with Precifion and Exadl- 
 nefs, compare that Doctrine with the AfTer* 
 tion of your Commentaries. The Public 
 have both your Sentences before them ; and 
 if the latter is confident, either in Letter or 
 Spirit, with the former, I fhall then plead 
 guilty; Hill afcribing 'my Fault to the Im- 
 perfection of my Underftanding : for, know- 
 ingly and wilfully, I would not mif-reprefent 
 any Man, efpecially one of your Abilities 
 and Ciiaradter. 
 
 Before I enter into a particular Difcullion 
 of the Sentiments I colledted in your Works ; 
 let me premife, that I underllood the very- 
 End and Aim of your Writings, v/as to in- 
 ftrucfi your Country-men in the Principles of 
 Law; not as a dead Language, but as a 
 B 2 ScienCsj,
 
 ( 4 ) 
 
 Science, * ^^ vvhich is to be the Guardian of 
 
 ** our natural Rights, and the Ilule of our 
 
 ** civil Conduvft." — InaSyftem drawn up with 
 
 this Intention, I could not then fuppofe there 
 
 v;as included, an AlTertion of fuch abfoiute 
 
 Power, as would take away thole natural 
 
 Rights; nor could I imagine you could pof- 
 
 fibly have thought it neceiTary to prefcribe 
 
 any Rule of Lav»', if there be an arbitrary 
 
 Will prefiding over us to adjudge ^ro re nata, 
 
 and execute its Judgments, diiiind: from the 
 
 common Law. For if they who govern, are 
 
 independent of that Rule, it is ridiculous to 
 
 give Rules to the go^'jcrned. To command 
 
 pro re 72aiii is the Province of one -, to fubmit, 
 
 the Lot of the other. But you. Sir, have 
 
 inculcated a different Doctrine, you have 
 
 taught us that Liberty is our Birth-right, 
 
 J *' And that Liberty, rightly underilood, 
 
 ** conlifts in doing whatever the Laws permit, 
 
 «* which is only to be effedied by a general 
 
 " Conformity of all Orders and Degrees to 
 
 ** thofe equitable Rules of Adion, by which 
 
 Black. Comm. Vol. I. P. 4, % lb. P. 6. 
 
 the
 
 ( s ) 
 
 ** the meaneil Individual is protected froni 
 ** the Infults and Oppreffions of the greateft," 
 And according to Sir Matthew Hale, || ** the 
 '* common Law is the common Rule for ad- 
 *' miniflering Juflice, and afferts the King's 
 ** royal Prerogatives, and alfo the Rights and 
 *' Liberties of the Subjedt, and dired:s the 
 '* Limits and Bounds of Courts and jurif- 
 ** diclwns.'" 
 
 As you had not the ' Spirit of Prophecy 
 when you "^rotey neither had I the Spirit of 
 Prophecy when I read your Commentaries, 
 to conceive you could ever have thought 
 that, under this Conftitution, any Order or 
 Degree of Men was exempt from this Rule 5 
 leaft of all that Order of Men, whom yon 
 have defcribed as -f- *' the Guardians of the 
 *' Englifh Conftitution, delegated to watch, 
 " to check, and to avert every dangerous 
 '* Innovation. 
 
 But one Point in which you fay. Sir, I 
 have done you wrong is, that I have affumed 
 your Authoritv for afcribina: thof^e Difabili- 
 
 Ij Hill, of Law, P. 44. t niack, Comrxi. Vol. T. P. 9. 
 
 tics
 
 ( 6 ) 
 
 ties which refpeifl the Quahiication of Mem- 
 bers of Parliament, to the common Law. 
 And you treat it as a Fallacy (and the very 
 Fallacy which you fay gave fome little Shadow 
 of Reafon to the Arguments of the Mino- 
 rity on the 8th of May) the Suppofition that 
 ** there can poflibly fubfift any common Law, 
 ** dirtin(fl from the Law of Parliament, re- 
 *' fpedling. the Qualification of Members.'* 
 For my ov/n part, I do not remember there 
 was any fuch Exprefiion on the Side of the 
 Minority, as that there was a common Law, 
 diftindl from the Law of Parliament in fuch 
 Cafes; But the Argument they relied on (be it 
 Shadow or Subftance; was, That the Jurifdic- 
 tion of the Houfe of Commons over the Rights 
 of the Eledlor and Elecfted, cannot be exer- 
 cifed on Principles, dillind: from, or indepen- 
 dent of, the common and Statute Law. What 
 then was the Subflance of Argument oppofed 
 to ihis Shadow of Reafon ? It confiPied wholly 
 in blending and confounding the two Ideas of 
 Jurifdiction and Lcgillatlua together; and 
 \et. Sir! who-ever does not keep thefe two 
 Ideas totally feparated from, each other, will 
 
 never
 
 ( 7 ) 
 
 never form a rational Conception of the pre-« 
 fent Queflion. 
 
 I fliall not then detracfl from the weight 
 of the Arguments advanced by you, and other 
 learned Gentlemen of your Profefi]on, when I 
 collect them in this one Point — That it is 
 eflential to every Court of Law which is com- 
 petent to try a Caufe, to adjudge and declare 
 what the Law is, relating to the Caufe under 
 Trial -, and that the Judgment of fuch Court 
 is binding until it is rcverfcd ; That the Houfe 
 of Commons being the Court competent to 
 try every Cafe relative to the Eledion and 
 C)ualification of Members ; what the Iloufc 
 ADJUDGES and declares to be Law, in 
 FACT, becomes Law -, and as there lies no 
 Appeal to any other Court, to reverie their 
 Judgment, aW Judgment muft abfolutely ftand 
 as Law. — Then let me aflv, if the Eltcd of 
 that Judgment is altering the old, or making a 
 new Law, What is it but Legillation ? 
 
 But you cannot wonder, Sir ! that they 
 who had read your Commentaries fliould be 
 iiflonifhed at feeing you promote this Union. 
 
 For,
 
 ( 8 ) 
 
 For, fpeaking of the judicial Power, you fay"^ 
 ♦* Were it joined with the legislaiive, 
 <* the Life, Liberty, and Property of the Sub- 
 ^< ject would be in the Hands of Arbitrary 
 ** J'^^g^s, whofe Decifions would then be re- 
 ♦' gulated only by their own Opinions, and 
 ♦* not by any fundamental Principles of Law, 
 ** which Legilli)tors may depart from, yet 
 *' Judges are bound to obferve." This Sen-* 
 tence has indeed an immediate Reference to 
 thejudges ofV/cflminfterHall: But in cafes of 
 Ekdtion, Members of Parliament are as mere 
 Judges as they. And whenever in the Exercife of 
 Jurifdiction they depart from that equal Rule 
 of Law, which is the only Meafure of Juflice, 
 they ceafe to be Judges and make themfelves 
 L.egillators. And as often as this un-natural 
 and dangeroiis Union of Jurifdidtlon andLegi- 
 flation is cemented, the Effects muiT: be as you 
 have fo truly reprefented them. For Infiance, 
 the Houfe of Lords is, in cafes of property, 
 the fupreme Court of Judicature from which 
 there lies no Appeal : Suppofe then that their 
 
 » Black. Comm. Vol. I. P. 269. 
 
 Lord-
 
 ( 9 ) 
 
 Lordfhlps fliould fcorn to go on in the beaten 
 Trad: of the Common Law, and adjudge the 
 Right of Inheritance to be in the younger 
 Brother, inftead of the elder -, forming their 
 Judgment on Principles of general Reafon, 
 arillng pro re natd, perhaps on the notorious 
 Unworthinefs of the one Brother, and the great 
 Merit of the other; Theirjudgment,in fact, 
 becomes Law, and by it the Tenure by which 
 almofl every Man in the Kingdom holds his 
 Property is rendered indeed precarious. And 
 if it be admitted as a Principle that the Law 
 is, what every Court competent to try the 
 Caufe, fo adjudges j Then may every Court 
 which is competent to try Treafon, make that 
 Treafon which they adjudge fo. It was upon 
 this very Principle that till the Statute of 
 Edw. 3d, the Life of every Subjedt in the 
 Kingdom lay at the Mercy of thejudges, while 
 thofejudges were at the Difpofal of the King, 
 And if it be true that the Right of Eledion 
 may be taken aviray as theHoufe of Commons 
 may^ pleafe to adjudge; Then muft that 
 eflcntial Right which is the Foundaiicn and 
 Security of ourLiberty,lofc the Name and Idea 
 of being a Right, and depend upon the mere 
 C Accidents
 
 ( fO ) 
 
 Accidents of Days and Hours, Moil fincerely 
 do I therefore ailent to theTfuth you hy down, 
 as a FrofeiTors that were the Judicial Power 
 once joined with the Legislative, the Life^ 
 JLiherty and Frop£rty of the Subjed: would he 
 in tlie Hands of arhitrary ^judges. 
 
 Whenever I fpeak of the Right of Voting, 
 I cannot but aiGTert it as a legal Right. It is 
 true, a Minlilerial Writer J has lately had the 
 Boldnefs to call it a F-arliamentaryi not a 
 legal Right, in dired Contradidion to Sir 
 
 Joieph Jekyll who fpoke thefe very Words 
 
 Ij'* The Right of voting is a kgaU not a 
 ** Parliamentary Right." And you yourfelf. 
 Sir! are pleafed to tell us -^ ** That the ab- 
 '* {blute Rights of every Englifhman (which 
 *' taken in a political and extenlive Senfe are 
 <* ufiially called their Liberties) as they are 
 ** founded in Nature and Reafon, fo they are 
 *' co-eval vs^ith our Form of Government." 
 You ftate the Origin of this Right, when you 
 
 X Cafe of the Middlefex Ele£lion confidered. 
 
 IJ Cafeof Afhby and White, P. 104. 
 
 t Black. Comm, Vol. I. P. 147, 
 
 inform
 
 inform us, that « '^ by the Polky of oar 
 •♦ ancient Laws; all Officers who were con^ 
 ** cerned in Matters that aScatd the Liber- 
 ** ty of the People, were chofen by the 
 •• Freeholders in the County Courts/* Yoa 
 alfo mention f '* amongd the mail remark- 
 •* able of the Saxon Laws, the Eleaion of 
 «« the Magiftrates by the People ; originally, 
 ** even that of their Kings''— Since /y^.;/? Rights 
 then did originally accrue by common Law, 
 a Joriiori a Right to chufe their own Repre- 
 fentatives mud accrue by common Law; ^x\d. 
 m reverfe of being created by Parliament, 
 WAS and is the Creator of, Parhament itfelf. 
 I muft alfo treat the Right which the Elcvftor 
 has in the Seat of the particular ?viember, 
 who is legally chofen, on the fame footing, as 
 the Right to eledl him ; for the Service is all 
 the Effe^ of the Right, and to lofe the 'Efft:cl 
 of a Right is the fame Thing as not having it 
 at all. 
 
 Having then cleared my Ground In airertlng 
 the Freeholders* Right to be of common Law, 
 
 * Black. Comm. vol. I. p. 347. f lb. Vol. iV. p. 4.o^>. 
 
 C 3 1
 
 ( 12 ) 
 
 I thought it confeq-aential that the Maxims to 
 try that Right mull: alfo be of common Law. 
 Therefore did I, in the ^irjlionfiated, afcribe 
 to the common Law, the Difabilities that you 
 have enumerated in your Commentaries, 
 "which are not of Statute Law. But permit 
 me to fay, I did not mis-quote your Words ; 
 the Difiindtion betwixt the Difabihties of 
 common, and thofe of Statute, Law, being 
 made by myfelf, as well as the Obfervations 
 thereupon : The Sentiment I did, and flill d^Oy 
 believe was your's, the Expreffion merely my 
 own. 
 
 Previous to my flating the Journals (which 
 I fliall beg leave to do pretty fully) in Jufli- 
 ilcation of the Conftrudion I have put upon 
 them, I muft obferve a Difference in your 
 Expreffion, as to the Incapacity arifing by 
 Statute, and that by a mere Vote of the 
 Houfe of Commons. The one you fay has 
 been adjudged, the other created; but as, 
 in the whole Tenor of your Letter, you affign 
 {he fame Confequences to adjudging by a 
 mere Vote, as to creating by Adt of Parlia- 
 ment; I muff treat your Senfe of adjudging 
 
 and
 
 ( '3 ) 
 
 and CREATING as one and the fame Thing, 
 refpeding the Qualification of Members to fit 
 in the Houfe of Commons. 
 
 And though you are now pleafcd to fay, 
 that " the Author of the Commentaries fpeaks 
 ** not of any DifabiHties at common Law, or 
 «* which were previoufly known to exift be- 
 *« fore they were adjudged by the Houfe ;" 
 Permit me to remind you how three ClalTes of 
 Difabilities, which you have fpoken of, Hand 
 on the Records of ParHament, viz. Minors, 
 Traitors, and Felons. Of the firft. Sir Edw. 
 Coke fays J ** One under the Age of twenty 
 *' one Years is not eligible : Neither can any 
 ** Lord of Parliament fit there, until he be of 
 ** the full Age of twenty one Years." — And 
 Do61or Blackftone more particularly fays,* ** It 
 '* is provided that no one fhall fit or vote in 
 ** either Houfe of Parliament, unlefs he be 
 ** twenty one Years of Age. This is exprefs- 
 ** ly declared by the Statute of 7 and 8 Will. 
 ** 3d, with regard to the Houfe of Commons, 
 
 t 4 Inft. 47. ■» Black. Comm. Vol. I. P. 162. 
 
 *' though
 
 ( H ) 
 
 ^ though a Minor was incapacitated lujorr 
 *^ horn fitting in either Houfe, by the Law ani 
 •* Cs^iiem of Pa^)j•aIKent" — The Difftrence 
 Between rhcfe two great Authors is, that Sir 
 Edv\r. Coke does not mention ** the Law and 
 Ckiftom of Parliament," which V/ords are added 
 1?V' Doctor Blnckfione. But as there was no 
 .gtarare in Sir Edw^ Coke's Time; nor has 
 evrr been' any Vote concerning Minors ; wo 
 SaTc Sir Edw. Coke's Authority at leaft, that 
 tih-e Diilibihty of Minors, was originally at 
 eommcn Law. Take it in Dodor B]ack- 
 ftorpe's- Words, that they were incapacitated 
 !)y the Law and Cuiloni of Parliament ^ ftill^ 
 as- th« Incapacity exifled hjhre the Statute, 
 and- as there is no Vote concerning Minors; 
 — On what ground is it poliible for theDo(£lor 
 to f.x this Law and Cul^om of Parliament, 
 but merely upon ihe Law of the Land ? 
 
 On the lame ground iland the Difabilities 
 of Pcrfons attainted of Treafon and Felony. 
 There lias been no A6t of Parliament to create -, 
 nor ^as I can find) a Vote to adjudge a Dif- 
 ability in either cafe. But Sir Edw. Coke has 
 iaid they were not eligible, becaufe « i/jey are not 
 
 within
 
 ( ^5 ) 
 
 ^^Wn the Terms cf the Writ -; and Doc'^ar 
 B!ackftone fays, becaufe « thty are unfit iu fit 
 any cohere; Jt would indeed be agalnil every 
 Ruk and Principle of Law, to admit them to 
 a Share of the fjprcme Lcgiflaturc, who arc 
 dead in Law, have forfeited all Property, ai>d 
 would f render the Verdia of any Jury void, 
 on which they might be impanelled*. Bufif 
 it be true that no Di-lability can exifl: witho^it- 
 an Ad: of Parliament, or a previous Vote of 
 the Houfe, then are Traitors and Felons i^ill 
 eligible ; and Dr. Blackaone, to fl>ew the 
 Connflency of hi5 prefent Dodrine with that 
 of his Commentaries, mu ft prove that Men 
 attainted of Treafon and Felony are botli 
 
 ELIGIBLE and INELIGIBLE. 
 
 t Hale's Pleas cf the Ciovvn, 2 Vol, P. 455. 
 
 * In the firft Parliament of Elcnry VU, many Pcrfan^ 
 were reiurncU Members, who in the preceding Reign 
 had been attainted of Treafcn. Their Capacity'' to Jit in 
 Parliament was queHtoned by the Houfc of Commons: 
 But the Houfe, iriftead of adjudpng the'r eliaibility by a 
 Vote of their own, refj^rred the Matter to the twe!vejutli/es; 
 "Who declared them ineligiblk until the Attainders werr 
 xeverfcd by AAcf Parliameju, vvhic.h was accordingly don^. 
 
 With
 
 ( i6 ) 
 
 With refpeil to the Journals you referred 
 me to ; I am bold to affirm, that they do not 
 warrant the AiTertion of any Incapacity being 
 founded merely on a Vote of the Houfe of 
 Commons ; on the contrary, every Incapa- 
 city recorded in thofe Journals appears to have 
 prcvioufly exifted in common Law, and the 
 Votes are merely declaratory of_ that 
 common Law. In other Words, the Houfe 
 of Commons did not, in thofe Inftances, 
 make the Law j but did, what every Court 
 in the Exercife of its Jurifdidtion muft do, 
 ADJUDGE according to Law. 
 
 The firfl relates to Mr. Steward. 
 
 loth March 1623. 
 
 " Mr. Glanvyle reporteth from the Com- 
 '* mittee of Privileges i for Monmouth, 
 ** Mr. Steward a Scottilh Man, not na- 
 " turalized, returned ; But the Bills of 
 ** Naturalization have twice pafled the 
 '' Houfe. That he, in Modefty, hath 
 ** forborn to fit here. That Levinus 
 '* Muncke only a Denizon and Horatio 
 ** Palevicyne in like Manner fat here. 
 ** But anfwcred that never Exceptions 
 
 ** there-
 
 ( '7 ) 
 
 «« thereunto, nor the Matter ever ftirred. 
 " The Matter of great Weight; and there- 
 «* fore the Committee would deliver no 
 «* Opinion, but leave it to the Judgment 
 «« of the Houfe." 
 
 «* Mr. Alford — Not to admit of only Deni- 
 zons to ferve here. ** For the Precedents 
 «« like to be tacite : But to h we Confider- 
 <* ation of this Gentleman becaufe his Bill 
 ** has tv^ice palTed this Houfe." 
 
 <* Mr. Glanvyle— -That he is not capable to 
 <* fit here becaufe only aDenizon and not 
 «< naturalized. If one, the greater Number 
 «* may be returned only Denizons. — For 
 «' the Precedents, they were never quef-^ 
 *« tioned or debated here.'* 
 
 '* Sir D. DJgges — To do here as in Sir Era. 
 <* Bacon's Cafe. That he, being Attor- 
 *' ney, (liould ilia vice ferve -, but never 
 «' any Attorney General after." 
 
 '« Sir Edw. Coke— No Alien denizated can 
 
 *^ ferve in this Houfe. He that denizat- 
 
 D •* ed
 
 ( -8 ) 
 
 * ed is by Act of Parliament, which 
 
 * maketh him a natural liege Man. But 
 ' the Words of Denization are tanquam 
 ' I'lgcns. We have aflent to Naturaliza- 
 ' tions, none to Denizations. Many 
 ' Under the Age of twenty one Years fit 
 
 * here by Connivency j but if queflioned 
 
 * would be put out." 
 
 *' Refolved that Mr. Steward hath dealt very 
 *' worthily in forbearing to come into the 
 •* Houfe ; and that he do forbear to come 
 ** 'til he be capable by being naturalized." 
 
 " Refolved upon Queflion that the Eledion. 
 '* of Mr. Steward void in law^ and a 
 ** new Writ to ilTue for a new Choice." 
 
 Does it appear in this Precedent that the 
 Houfe of Commons adjudged Mr. Steward 
 ineligible on the Pretence oi an Authority in 
 ihemfelves, distinct from the common 
 Law ? To my iimple Apprehenfion it is juft 
 the reverfe. For the Ground of this Gentle- 
 man's Incapacity was his being a Denizon, not 
 a 7iatural bcrn fuhjc^ ', a Diftindion founded 
 
 merely
 
 ( 19 ) 
 
 merely in common Lav/ The Journsl 
 
 has preferved enough of the Debate to (hew, 
 it was taken up entirely as a Point of Law, 
 and argued upon legal Principles only. It is 
 alfo manifeil that there was a Difpolition in 
 the Houfe to receive Mr. Steward ; and the 
 Circumftance of his Naturalization- Bill hav- 
 ing been twice read, would have furni(hcd a 
 good Argument pro re natd -y if the Idea of 
 Adjudication pro re ?iatii had then been 
 adopted j but in a Stile of perfonal Civility 
 to Mr. Steward, the Houfe refolved, ** That 
 *' he had done very worthily in forbearing to 
 ** come into the Houfe, and that he do for- 
 *« bear to come, 'till he be capable by being 
 ** naturalized." In clear and flrong Terms 
 then did the Houfe, on this Occaiion, dif- 
 avow the Power of adjudging a Denifon 
 capable, whom the Law had made incapable. 
 But they recommended Mr. Steward to refer 
 himfelf to an Ad of the whole Legiflature, 
 as that alone could remove a legal Difability. 
 Here the Matter refted for fome time, 'till the 
 Houfe refuming it, came to a Second Refolu- 
 tion, ADJUDGING that the Elcdion of Mr. 
 Stewa.f-d was void in Law ; let me afk you, 
 
 D 2 Sir!
 
 ( 20 ) 
 
 Sir ! By what Law ? It could not be by the 
 Law and Cuflom of Parliament. For there 
 were tv/o Precedents of Aliens having actually 
 fat in the Houfe of Comn:ions that were both 
 alledged in Mr. Steward's favor — But Sir 
 Edw. Coke rejefted the Authority of thofe 
 Precedents, as not being conformable to Law 
 — The Court too was on Mr. Steward's fide ; 
 but courtly as that Houfe of Commons was to 
 K. James L and therefore unwilling to de- 
 cide againft the King's Friend ; yet they 
 would not decide againll the Law. 
 
 The Journal you next refer me to is of 25 
 January 1580, when " A Motion was 
 ** made to know the Mind of this Houfe 
 ** touching a Burgefs {landing indicted 
 ** FOR Felony 5 Whether he ought in 
 
 ^ ** that Cafe to remain a Member of this 
 ** Houfe or elfe to be removed ? It was 
 " adjudged he ought to remain ftill of 
 ** this Houfe unlefs he were convidted." 
 
 In this Cafe the Houfe did nothing more 
 than difclaim Adjudication pendefite litCy with 
 an Implication indeed, that if the Member 
 
 had
 
 ( 21 ) 
 
 liad been convided, then in obedience to the 
 Judgment of the Law they might have ex- 
 pelled him. But you cannot ftate a mere 
 Suppofition of what the Houfe might intend 
 to adjudge as a Point inJaSi adjudged* 
 
 *' 9th Novem. 1605— New Writs were 
 " ordered in the Room of two of the 
 " twelve Judges who had been elecfled 
 <* into ParUament." 
 
 Sir Edw. Coke fays (4 Inft. 47) none of 
 the 12 Judges are eligible becaufe ** they he 
 *' AJJifiants in the Lords Houfe,"' 
 
 For, by the Conftitution, the Judges have 
 not only their Writs of Summons, but are 
 bound fex officio) to fuch a conflant indif- 
 penfible Service in the Houfe of Lords, as 
 excludes them from a poffibility of attending 
 on the Bufmefs of the Houfe of Commons. 
 
 I apprehend there is no Cafe where the 
 Law in fome or other of its Departments, 
 has not an Authority to prevent the fame 
 Man from holding two Offices that are in- 
 compatible one with each other — As if a 
 
 Biffiop
 
 ( 22 ) 
 
 JBifliop or the Redlor of a Parilli fliould take 
 the Command of a Regiment ,• thw Ecclefia- 
 fllcal Court would oblige him to relinquilh 
 either his military Commiflion or his holy 
 Orders. And in Dr. Blackllone's Commen- 
 taries we find, that * ** at common Law a 
 «f CoRCNER, thd he is chojen for life, may be 
 ** removed, either by his being made Sheriff 
 ** or chofen Verdurer, which are Offices in- 
 ** compatible with the other." — From this 
 legal Ground of Incompatibility (not a mere 
 Vote of the Houfe of Conimonsj did the 
 Cuflom arife (^For except Thorp in Hen. 6 
 Reign, there is no Inftance of a Judge fitting 
 in the Houfe; now grown into the Law of 
 Parliament * That none of the Twelve Judges 
 are eligible.' 
 
 The Votes of the i3thof Odober, 1553 — 
 8th of February, 1620 — 17 January, i66i-— 
 declare the Incapacity of Clergymen to be 
 elected into Parliament. Sir Edward Coke 
 
 * Black. Comm. Vol. I. P. 348. 
 
 fays.
 
 ( 23 ) 
 
 %s, (4 Inft. 47) «« becaufe they are of an- 
 ** other Body, liz. of the Convocation." 
 " Where (4 Lift. 322) the whole Clergy are 
 ** prefent in Pcrfon, or Reprefentation, and 
 *' they only fit in ParliamentTime." Andyou, 
 Sir ! whofe Authority I am proud to quote as 
 I do that of Sir Edward Coke, defcribe the 
 Convocation as *« the Miniature of a Parlia- 
 ** ment ; wherein the Archbi(hop prcfides 
 ** with regal State ; the u] per Houfe of Bi- 
 " (hops reprefenting the Houfe of Lords ; 
 *' the lower Houfe compofed of Pvcprefenta- 
 " tives of the feveral Diocefes at large, and 
 *' of each Chapter therein, refembling the 
 ** Houfe of Commons with its Knights of 
 ♦* Shire and BurgefTes." 
 
 The Incapacity of the Clergy then did not 
 arjfe from a Vote of the Houfe of Commons 
 alone. But the Law and Cuftom by which 
 they are excluded, is derived from their own 
 Situation, being ' Members of another Body' 
 (when the Vote palTed) exifting with full Power 
 of Taxation and Lcgiilation, as far ac relat- 
 ed to the Church and Churchmen. And I ap* 
 prehend, fhould a Peer be ele^ed into Parlia- 
 
 mcat.
 
 ( 24 ) 
 
 ment, that a Vote of Incapacity would be the 
 Cbnfequence of hisEleftion: Still the Incapa- 
 city could not be imputed to the Vote, but to 
 the pre-exirting Caufe of his Incompatibility. 
 But the Refolution of the 17th of Ocftober, 
 1553, ^^ttl^s this Point better than I can, 
 being vi termini, declaratory. The Words 
 are, * It is declared that Alex. Newel, be- 
 « ing a Prebendary of Weftminfter, and 
 ' thereby having a Vote in the Convocation, 
 « CANNOT be a Member of this Houfe.' 
 
 The other Journals you refer to 25 June 
 1604 — 14th of April, 1614 — 22d of March, 
 1620-^relate to fuch Perfons as being Sheriffs 
 of Counties, and Mayors and Bailiffs of Bo- 
 roughs, are not eligible in their refpective Ju- 
 rifdi6lions as being returning Officers — 
 ** J Sheriffs of one County being flill eligible 
 " to be Knights of another." 
 
 The laft of thefe Journals contains no- 
 thing but an Order to ilTue a new Writ in 
 
 X Black. Con:m. Vol. I. P. 175. 
 
 the
 
 ( ^5 ) 
 
 the Room of a Mayor of Cambridge who ha(i 
 returned himfclf. — But on 
 
 25th June 1604, 
 
 *' Sir Fra. Moon moved to know the 
 ** Opinion of the Houfe, Whether a 
 " Mayor of a Town might laivfully be 
 *' returned and admitted to ferve as a 
 ** Member here. And alledged a Cafe 
 *' 38. Hen. 8. in Brook's Abridgment, 
 ** where it is reported to be admitted in 
 " the Commons Houfe of Parhament, 
 ** That if a Burgefs of Parliament, made 
 ** Mayor o^ a Town having thereby judi- 
 " cial Jurifdidion, that that is a fufficient 
 *' Caufe to fend forth a new Writ for a 
 *' new Choice. — Hereupon by feme it was 
 ** anfwered that they conceived Mayors 
 *' to be WITHIN the equity of the Stat. 
 ** of 23 Hen. 8. inhibiting the Eledioqi 
 •* of Sheriffs. And by fome the great 
 ** Inconvenience was urged that Mayors, 
 •* to whom the Writs are diredled, fhould 
 ** be admitted BurgefTes ; feeing for the 
 ** moft part their Power was fuch as they 
 " might procure themfelves to be chofen." 
 E " Upoo
 
 ( 26 ) 
 
 << Upon the whole Matter it was re- 
 ** SOLVED and ordered, and the Clerk 
 ** of the faid Houfe commanded to enter 
 *' it accordingly ; That from and after the 
 *« end of the prefent Parliament, No 
 *« Mayor of any City or Town corporate 
 ** {hould be elected, returned or allowed 
 •* to ferve as a Member of this Houfe ; 
 ** And if it did appear that any Mayor were 
 ** returned a Burgefs, that prefently a new 
 ** Writ fliould be awarded for the choice 
 *« of another in the room and place of 
 ** faid Mayor, and this to continue as an 
 ** A6t and Order of this Houfe for ever." 
 
 By the Tenor of this Debate the Queftion 
 feems to have arifen upon a Perfon, who tho' 
 Mayor of fome Town or other, was not re- 
 turned for the Place where he prefided. And 
 I am warranted to infer that, in this Proceed- 
 ing at leall, the Houfe was guided by the Law 
 of the Land, without any Pretence to Legi- 
 llative Power.— For the very Points in debate 
 are. Whether all returning Oiiicers, as well 
 as Sheriffs are within the Equity of the Stat. 
 of 38 Hen. 8 -, and whether a Mayor can /aw- 
 
 Ju/fy
 
 ( 27 ) 
 
 fully be returned (/. e. whether a Man is to 
 be the Judge in his own Caufe.) How then 
 could fuch a Debate arile, if there was no 
 previous Law to conform to or oppugn ? For 
 if your Dodtrine had been held That the Law 
 was to fpring up p7-o re natd as the Houfe was 
 pleafed to adjudge, the Debate mull: have 
 been, not upon what was already lawful 
 but upon what they chofe to make fo : They 
 would have deliberated upon the fitnefs of the 
 Law they were to give, but not have enquired 
 after the Law they were to follow. 
 
 The other Vote 14 April 16 14, is in fuch 
 politive Terms declaratory as to need no 
 Comment — It is thus entered 
 
 ** ^efiio juris et FaSli" — For the Law 
 they refolved, ** No Mayor or Bailiff that 
 ** returneth himfelf may ferve as a Mem- 
 <* ber of this Houfe"— 
 
 I HAVE NOW gone thro' every one of the 
 
 Journals you referred me to. Liexperienced 
 
 as I am, and indebted to you for great part 
 
 of the little Knowledge of Law I pretend to -, 
 
 E 2 I
 
 ( a8 ) 
 
 1 lliould find myfelf mod unhappy in differing 
 with fo perfect a Mafter, if I had not the 
 Votes themfelves, which you have pointed 
 out, for my Support. — Let every Reader form 
 his Opinion of thofe Votes j Whether they 
 are as you imply, legislative; or, as I pre- 
 fume to think, declaratory ; — That is, 
 whether they create the Law, or were palled 
 in conformity to the known Cuftoms, Maxims 
 and Rules of Law, previously exifting for 
 the Government of the Houfe of Commons 
 as well as every other Subject of Great Britain. 
 
 I cannot yet quit the Journals without de- 
 iiring to recommend to your ferious Canfi- 
 deration one Refolution more ; That of the 
 23 Jan, 1709, when Sam. Taylor, Efqj was 
 adjudged to be p,ot duly eleBed. Take this Vote, 
 Sir! either as legislative or declara- 
 tory. In one fenfe, there is a Declaration of 
 the Law, that a Candidate who has not a 
 Majority of legal Votes, though his Compe- 
 titor has been declared incapable by a Vote 
 of the Houfe, has no right to fit in the 
 Houfe. And this Declaration is conform- 
 able to the common Law, as well as thofe 
 
 Laws
 
 ( 29 ) 
 
 Laws that you have faid * *' are the only 
 ^' Criteria to decide the prefent Queflion."— 
 Take it in your- fenfe, * that what is ad- 
 judged and DECLARED by a Vote of the 
 Houfe, conftitutes the Law of Parliament ;' 
 There is according to that Dodlrine, an exift- 
 ing Law of Parhament adjudging him to 
 have no right, who flood fecond on the Poll, 
 although his Competitor was recently ad- 
 judged and declared incapable to fit in Parlia- 
 ment, by a Vote of the Houfe of Commons. 
 
 But fmce the Decifion of the Middlefex 
 Election could not be defended on any Prin- 
 ciple of common Law, is diredtly in the Teeth 
 of the Statutes, and a Contradiftion to that 
 Law and Cuftom of Parliament which is to 
 be found in the Journals ; The Miniftry is 
 indebted to you, Sir ! for defending it by a 
 Law and Cuftom of Parliament, which did 
 not appear to exift when You wrote your 
 
 * Confiderations on the Queftion, Whether Tenants 
 by Copy of the Court Roll, &c. are Freeholders qualified 
 to Vote in Elections for Knights of the Shire, P. 5. 
 
 Com-
 
 ( 3° ) 
 
 Commentaries. For in them you have told u», 
 that '\ " the Law and Cuftom of Parliament 
 ** is to be learned out of the Rolls of Parlia- 
 ** ment and other Records, and by Precedents 
 ** and continual Experience." — But that Law 
 and Cuftom of Parliament is now become quite 
 another fort of Thing: It is not to be found in 
 the Rolls of Parliament, nor in the Records 
 of either Houfe, nor by Precedents ; but 
 hereafter to be judged of by the fingle Expe- 
 rience we have had of the Middlefex Eledion. 
 For after reciting, that the Qualification of 
 Perfons to be eleded, depends upon the Law 
 tnd Cuftom of Parliament and certain Statutes 
 referred to in the Margin j You fay that 
 ** what you meant by the Law and Cuftom 
 ** of Parliament (in Page 175) you have ex- 
 " plained in a preceding Page, (viz, 163) 
 wherein you lay it down «* that the High 
 •* Court of Parliament hath its own peculiar 
 ** Law, called Lex et Confuetudo Parliamentt, 
 *' that the whole of this Law and Cuftom of 
 ** Parliament hath its Original from this one 
 
 f Bhck. Comm, i Vol. P. 163, 
 
 *« Maxim,
 
 ( 3' ) 
 
 " Maxim, that whatever Matter arifes con- 
 <' cerning either Houfe of Parliament, ought 
 ** to be examined, difcujftd and adjudged in that 
 «* Houfe to which it relates, and not elfe where; 
 «* but that the Maxims upon which they pro- 
 <* ceed, together with the Method of Pro- 
 *' ceeding, reft entirely in the Breaft of Par- 
 *« liament itfelf, and are not defined and afcer- 
 *« tained by any particular ftated Laws." 
 
 I am afraid, Sir ! you will think me quite 
 perverfe and unaccommodating ; but I can by 
 no means admit this Explanation of the Law 
 and Cuflom of Parliament. For the PafTage 
 in your Commentaries, that fpecifically treats 
 of it, ftates fully and precifely what tbat Law 
 and Cuftom of Parliament is, refpedting the 
 Qualification of Members : But the Pafiagc 
 by which you would now explain it, relates to 
 another Matter. For you have divided your 
 Difcourfe on the Conftitution of Parliament 
 into feveral diftind: Heads. One of which 
 treats of -f- «* the Laws and Cuftoms of Par- 
 
 t Black. Comm. Vol. I. P. 149. 
 
 liament
 
 ( 32 ) 
 
 liament *' confidered as one aggregate Body" 
 < — Another of ** the Laws and Cuftoms of 
 «« each Houfe feparately and d.ftindly taken.'* 
 Under the firil Head you have very ably dif- 
 culled the Nature and extent of the Legifla- 
 ture of this Country, which (you fay) *" Some 
 ** have not fcrupled to call, by a Figure rather 
 *« too bold, the Omnipotence of Parlia- 
 <« ment." Mofl certainly the Legiflature can 
 proceed on no Maxims but what arife in 
 their own Breafts, as it would be contrary to 
 the Nature of the Legiflation (the Property of 
 which is to give Law) to receive Law : But 
 the Omnipotence which you thought too 
 bold a Figure for the whole aggregate Body 
 of Parliament, I can never apply as an Ex- 
 planation of the Power of the Houfe of Com- 
 mons only. 
 
 I fhall like wife admit it, as the Law and 
 Cuflom common to both Houfes, that what- 
 ever Matter arifes concerning either Houfe of 
 Parliament (fuch as their own Rules, Orders, 
 
 * Black. Comm. Vol. I. P. l6i. 
 
 and
 
 ( 33 ) 
 
 and Forms of Proceeding*) ought to be ad- 
 judged in that Houfe to which it relates, and 
 not elfewhere ; And that * the Maxims upon 
 which they proceed (in fach Matters) rell 
 entirely in the Breafl of Parliament itfelf— But 
 I cannot take what you fay of Matters that 
 relate to either Houfe, in explanation of 
 Matters that do not relate to either Houfe. 
 For the Qualification of Members is a Matter 
 of Jurifdidlion, and cannot therefore relate to 
 thofe who have the Right of adjudging, but 
 to thofe whofe Rights are adjudged. 
 
 Let us however bring this Explanation of 
 the hex et confuetudo Pariiamenti to the Point 
 in Queftion. For, of the Laws and Cuftoms 
 common to both Houfes, this likewife is one 
 —That each Houfe hath an exclufive Right 
 of judging of the QuaUfication of its own 
 Members — " For Inflance (Comm. Vol. I. 
 " P. 163) The Lords will not fuffer the Com.- 
 *« mons to interfere in fettling the Eledion of 
 ** a Peer of Scotland; the Commons will not 
 
 *' Black. Comnu Vpl. I. P. 163. 
 
 F '* allow
 
 ( 3+ > 
 ** allow the Lords to judge of the Eledion of 2t 
 ** Burgefs -, Nor will either Houfe permit the 
 *« Courts of Law to examine the Merits of 
 <* either Cafe." But if this be applied, not to 
 the Right of adjudging, but to the Principles oil 
 which they adjudge — We might thus Figure 
 to ourfelves each Houfe of Parliament deter- 
 mining an Eledion, in the Manner you have 
 laid down, viz. 
 
 The Validity of the Eledion of one of the 
 Peers of Scotland comes to be tried by the 
 Lords. I conceive it may be litigated on any 
 of thefe Grounds : either the Perfon, whofe 
 Eledlion is objected to, may have no original 
 Right of Peerage ; or, the Right may be lofl 
 by Attainder ; or, he may be a Minor ; or,, 
 the Election may not have been made accord- 
 ing to the Act of Union^But by your Doc- 
 trine, the Matter is to be tried by no Rule of 
 Law and Right ; but by Maxims that arifc 
 ^ro re naia, in the Breafts of the Lords.. 
 
 By the fame Rule, the Commons in Cafea- 
 of Eledion, inftead of enquiring about the 
 ^refcriptive or Charter Rights of Boroughs,. 
 
 or
 
 ( 35 ) 
 
 cr the legal Rights of the Freeholders of 
 Counties, in order to find out who has the 
 Majority of legal Votes, are to examine, difcufs 
 and adjudge upon Maxims that reft in their 
 own Breafts. 
 
 Now, Sir, can a ProfefTor of Law, who 
 has once faid that % '< abfolute Rights compofe 
 Liberty," contend for fubmitting thofe Rights 
 not to legal Jurifdidion, but to fuch abfolute 
 Power as this is? 
 
 The manner indeed, in which you have 
 accidently thrown in the Inftance that each 
 Houfe has the fole Right to judge of the 
 Eledions of its own Members, has given you 
 one more Opportunity of attempting to con- 
 found Jurifdidion with Legillation. How- 
 ever it is not in your Difcourfe upon the ag- 
 gregate Body, but in that Part which pecu- 
 liarly relates to the Houfe of Comm.ons, 
 where we are to find the Principles you really 
 meant to inculcate, of its particular Jurifdic- 
 
 X Black. Analyfis, P. 6. 
 
 ^ 2 tioa»
 
 ( 36 ) 
 
 ti6n.^-*-Tbere your Reader cannot but be im* 
 prefled with the folemn, interefling Manner 
 in which you introduce your Commen- 
 tary on the Right of Eledion. You tell 
 us, 11 " the Democratical and Sovereign Part 
 *' of our Conftitution confiils in the People's 
 ** Choice of their own Reprefentatives." You 
 remark how jealous the Athenians were of 
 this Part of their Conflitution, fo that if a 
 Stranger interfered in the Aflemblies of the 
 People, he was punifhed even with Death. (If 
 the Athenians thought it fuch a Crime for one 
 who had no Right only to interfere in 
 their AfTemblies, what would they have 
 thought of violating the Right on which the 
 Conflitution itfelf was founded!) In England 
 (you fay) the Laws have flridly guarded 
 againft Ufurpation ** and abufe of Power over 
 this Right;" You have recited what thefe 
 guardian Laws are : and permit me to remind 
 you, that in the Year 175B, you fo little en- 
 tertained any fuch vague, indefinite Idea, as 
 thatjthisSovereign Right (as you have termed it) 
 
 ii Black. Cpmrn. Vol. I. P, 149. 
 
 de-
 
 ( 37 ) 
 
 depended on Maxims that reft in the Breaft of 
 the Houfe of Commons ; That, m ati excel- 
 lent Pamphlet you wrote on the very Subjecft 
 of a County Eledlion (that of Oxford) in the 
 Houfe of Commons, you exprefsly fay, * We 
 " are not to enquire what would be the heft 
 ** and moft eligible Conflitution for this Pur- 
 ** pofe, but what really is and long has been 
 " our /ega/ Conflitution in this Point. The 
 *« Laws under which we now Adl, have fub- 
 ** fifted for more than three Centuries, and till 
 «* the Conflitution is fjew modelled, thefe are 
 ** the only Criteria to decide the prefent 
 *« Queftion." 
 
 But In truth. Sir! the Law and Cuflom of 
 Parliament refpeding the Qualification of 
 Mem^bers, is fo thoroughly unfolded in it's 
 proper Place, that, as it wants no Explana- 
 tion; neither can Ingenuity or fubfequent In- 
 vention explain it away. " The Qualification 
 ** of Perfons to be eleded Members of the 
 
 * Confiderations on the Queftion, Whether Tenants, 
 Ice. Page 5, 
 
 " Houfe
 
 ( 38 ) 
 
 ** Houfe of Commons," you fay, '* depends 
 ** upon the Law and Cuftom of Parliaments 
 ** and certain Statutes referred to in the 
 *' Margin. From thefe it appears that A- 
 *' liens, MinorS) Twelve Judges, Clergymen, 
 «* Perfons attainted of Treafon and Felony, 
 *' and returning Officers in their own Jurif* 
 <* didions" are difqualified by the Law and 
 Cvjiom of Tarimment. Others are difqualified 
 by certain Statutes. And that all others are 
 eligible of common Right — Can any Man, 
 who reads this, be at a lofs to know what the 
 Law and Cuilom of Parliament is, refpeding 
 the Qualification of Perfons to fit there ? Is 
 it not plainly this ? That wherever a Perfon 
 is not by his Birth entitled to the natural 
 Rights of an Englilb Subjed, or where a Man 
 being born to thofe Rights has forfeited them; 
 or whofe Situation in Life is, in a legal Senfe, 
 incompatible with a Seat in Parliament ; That 
 in as many of thofe Cafes as have come in 
 Judgment before the Houfe, that which was 
 the Law of the Land has been declared to be 
 the Law of Parliament, And that in other 
 Cafes, which have not ccme in Judgment Tas 
 it was in regard to Minors before the 7 and 8 
 
 Will.
 
 ( 59 ) 
 
 Will. 3d. and ilill is in regard to Traitors an^- 
 Felons) What is the Law of the Land, has. 
 ever been ajfumd to be the Law and Cufton^ 
 of Parliament— This Idea is confirmed by the 
 Interpofition of the whole Legiflature in the 
 difabling of Perfons whofe Crimes have ren- 
 dered them unfit, or their Stations improper,, 
 (on account of their Dependency) to ferve ia 
 Parliament— For why naght not the Officers, 
 of Excife and CuftoiTiS, Penfioners at Will,, 
 Clerks of Public Offices, as well as returning- • 
 Officers, Alien-s, &c. &c. have been adjudged 
 incapable by a mere Vote of the Houfe, if fuch 
 Vote had been deemed efFedual ? But the 
 Rules of common Law not extending to thofe 
 Perfons, their common Right was not to be 
 taken away,unlefs by Ad of Parliament, Ani> 
 fince you now fay that the Law and Cuftom 
 - of Parliament refpeding the Qualification of 
 Members, confifts in the Maxims that lie in= 
 the Breaft of Parliament j Lhope you will do 
 us the favor to explain What thofe Maxims 
 are ; For uniefs you do, the Explanation itf Jf 
 ^muft remain inexplicable. I have hitherto- 
 taken Law and Cujiom to be things that are, 
 at leaft, in exiftence;. And that every Man has
 
 ( 40 ) 
 
 a Right to know that Law which is ** for the 
 «* Rule of his civil Condudi" But how can a 
 Man know what 'that is, which refts in the 
 BreafI: ! Why, 'tis unborn, 'tis unconceived. 
 You might as well have defcribed this Law 
 and Cuflom poetically, and told us that it 
 refts 
 
 ** In the wide Womb of uncreated Night, ^'^ 
 
 Indeed Sir ! this is the firfb Time I have 
 heard of the Idea of fuch a Jurifdidlion being 
 realized upon Earth. But our great Poet 
 ?4ilton has defcribed one precifely of the fame 
 Nature, both as to its Principle and Effedts; 
 *Tis that Jurifdidion 
 
 ** Where Chaos Umpire fits** 
 *' And by Decifwn more emhroiis the Fray'''—* 
 
 It is a Matter, not ofApprehenfion, but of Hif- 
 tory,that, the major Part of theHoufe of Com- 
 mons may become dependent on the Minifler, 
 and independent of the People. T^hen will the 
 
 f Milton. 
 
 Maxims,
 
 ( 41 ) 
 
 Maxims which are to make the Law of Par- 
 liament (if fuch Maxims can make Law) reft 
 in the Bread of the Minifter. 
 
 If it fhould be one of his Maxims (as it 
 furely will) that no Man who is an Enemy to 
 HIM, or obnoxious to the Court, fhall fit in 
 the Houfe y his Majority will not only re- 
 move the ofFenfive Perf jn ; but make every 
 Re-eleclion of the People void, and adopt the 
 Choice of the Miniiler. 
 
 Your Commentaries tell us. Sir ! " That 
 *< the Law is the Guardian of our natural 
 «« Rights;" All which Rights owe their Being 
 and their Prefervation to the Right of Eledlion. 
 Should we then put this Right out of the 
 Guardianfliip of the Law, and fubmit it to 
 the occafional Maxims of the Houfe of Com- 
 mons; the Minifter who didates their Maxims^ 
 will in faB, make the Law, and become 
 himfelf ** the Guardian of our natural Rights." 
 — But pray, Sir ! was this the Guardian you 
 meant in your Commentartfes ? 
 
 la
 
 ( 42 ) 
 
 In thofe Commentaries you likewile fay, 
 *" That if any Alteration might be wiflied or 
 ** fuggefted in the prefentFrame of Parliaments, 
 ** it (liould be in favor of a more com.pleat 
 *' Reprefentation of the People." — But does 
 your prefent Dodlrine lead to the Confum- 
 mation of that Wiih ? Will the Meafure 
 founded upon it, bring the Re prefent at ion of 
 the People to Maturity and Perfedion ? No, 
 Sir ! it lies, even now, like a Canker at the 
 Root, and if not effedually eradicated, Repre- 
 fentation itfelf, both Fs.oot and Branch will 
 fall into decay. 
 
 There is another Pafi'age in the Letter that 
 you have done me the Honor to addrefs to 
 Me, of which I cannot help adding one {hort 
 Remark. You fay J " It is impoffible to con- 
 ** clude,from any fubfequent fanciedOmiffion, 
 ** that you thought the Floufe of Commons 
 *f had no Right to adjudge Mr. Wilkes in- 
 
 * Black. Comm. Vol. I. P. 172. 
 X Letter to the Author of the Queflion ftated, P. 21. 
 
 capable
 
 ( 43 ) 
 
 *' capable to ferve in this prefent Parliament ; 
 
 " unlefs we can alfo conclude, that becaufe 
 
 '* you have omitted the Cafe of the South 
 
 " Sea Dired:ors, who were perpetually dif- 
 
 ** qualified by the Stat. 7 Geo. 1. C. 28. and 
 
 '* have not mentioned, as a general Clafs, 
 
 ** Ferfons incapacitated by A5l of Farliament, 
 
 *' You was alfo of Opinion that, notwith- 
 
 *« {landing that Ad, Sir John Blunt, Mr. 
 
 " Sawbridge, or any other of the Dire(5lGrs, 
 
 ** were ftill eligible of common Right. The 
 
 ** Argument proves both, or it proves no- 
 
 <* thing." 
 
 Allow me. Sir ! to fay. That at the Tirrie 
 when you wrote your Commentaries, you 
 mofl certainly thought thefe two Things ; 
 one, that the whole Legiflature could ; the 
 other that the Houfe of Commons alone 
 COULD NOT create an Incapacity. — For, 
 amongft other Inftances of the unbounded 
 Power of the whole Legiflature, ycu hy, 
 •f ** It can change and create afrefh even the 
 
 * Black. Comm. Vol. I. P. i6r. 
 
 G 2 ''Con-
 
 { 44 ) 
 
 *' Conilitution of the Kingdom and of Par- 
 ** liaments themfelves ; as was done by the 
 <« Ad of Union, and the feveral Statutes for 
 «' Triennial and Septennial Elections. It 
 *' can in {hort do every thing that is not na- 
 
 «' turally impoffible." But in the fame 
 
 Chapter you fay, *' In all Tyrannical Govern- 
 ** ments, the Right both of making and en- 
 *^- forcing the Laws is vefted in one and the 
 *« fame Man, or one and the fame Body of 
 ** Men ; And v^'here thefe two Powers are 
 «« united together, there can be no Public 
 *« Liberty" — Then, fpeaking of two Branches 
 of the Leglflature you tell us, ** Whatever 
 ** is enadled for Law by one, or by two only 
 *« of the Three, is no Statute ; .and to it no 
 ** Regard is due, unlefs in Matters that relate 
 *' to their own Privileges (the Privilege 
 ** and Jurifdidtion cf Parliament, let me 
 " throw In, are two different Things) And 
 ** by the Statute of 13 Car. 2d, If any Per- 
 <« fon {hall MALICIOUSLY or advisedly 
 •« affirm, that both or either of the Houfes 
 <« of Parliament have any legislative 
 <^ Authority, v/ithout the King ', Such Per- 
 «^ fons fhall incur all the Penalties of a Prae- 
 munire
 
 ( 45 ) 
 
 ** munire— Once indeed" as you relate, " the 
 *' Commons pafied a Vote, that whatever is 
 ** declared for Law by the Houfe of Com- 
 " mons, hath the Force of a Law." «' But 
 *« this Vote" (DoaforBlackdone fays) '« pafled 
 *' in a Time oi Anarchy and Madnefs^ 
 
 I fhall not difpute it, with the learned 
 Doctor, that fuch a \oit can never pafs but 
 in a Time of Madni <.3. But don't. Sir! 
 be alarmed, as if you had incurred the Penal- 
 ties of a Prasmunire — I can acquit you of 
 that — For I fpeak it upon Knowledge, that 
 whatever you have affirmed of the legisla- 
 tive Power oi the Houfe of Commons, was 
 not advifedly fpoken, nor of Fore-thought. 
 
 But I mufl: not forget to. mention a Difqua- 
 lification, which you have thought proper ta 
 omit ; I mean that of the Attorney General, 
 * " by an exprefs Order of the Houfeof Com- 
 mons." This Difqualification being a Violation 
 of Mr. Attorney General's common Right ^ 
 
 * Coke 4 Inil. 48. 
 
 and
 
 ( 46 ) 
 
 and alfo a difpenfing with the Statute of the 
 7 H. 4 ; and alfo, adjudged pro re natd by 
 the Houfe of Commons, upon Maxims that 
 refted purely in their own Breads, is, in all 
 Refped:s, as compleat a Difability as that of 
 Mr. Wilkes. Why then. Sir ! did you not 
 reckon it in vour Lift: of legal Difabilities ? 
 Was it thro' Inaccuracy, or Inattention ? In 
 fuch a Cafe, and fuch a Perfon, that is impof- 
 iible — The OmifTion can be attributed to 
 this Caufe only, that you then thought a Dif- 
 ability adjudged by a mere Vote of the Houfe 
 of Commons, too nugatory, and too lawlefs, 
 even to be taken notice of, in a grave Difcuf- 
 jfion of the a^eal Law of the Land. 
 
 It is time for me now to {late and compare 
 the two Pfopofitions, that Vv'hich is in your 
 Commentaries, and that which you delivered 
 in the Houfe of Commons, and have fince 
 given in Writing. In the firft (after enume- 
 rating the feveral Difabilities before fpeciiied) 
 you fay, that 
 
 ^* Sublet to thcfe Reftridions and Dif-c 
 
 ** qua-
 
 ( 47 ) 
 
 *« qualifications every Subje6l of the Realm 
 *' is eligible of common Right." 
 
 This WAS your Doctrine Look you 
 
 now what follows : 
 
 Here is your Dodlrine 
 
 *' Some Clafies of Men are ineligible 
 *' either by the Statute, or by the Law 
 ** and Cuflom of Parliament declared and 
 ** ADJUDGED pro re natd by the Houfe of 
 ** Commons, and that all others are eli- 
 " gible of common Right." 
 
 Now to my fimple Ideas, the Difference 
 between the two Propofitions feems neither 
 more nor lefs than this -, according to the one 
 — Every Subjed has his common Right to 
 be ele6:ed into Parliament ; according to the 
 other, there is no fuch Right in exigence. 
 
 By the firft Docflrine, every Man is eligible 
 whom the common Pradice and univerfal 
 Principles of Law have not exempted from 
 his Condition of common Right, and what 
 
 that
 
 ( 4S ) 
 
 that Right Is every Man may know. And 
 
 Sir Edw. Coke expreflly fays, that '' .^' he 
 
 ** which is eligible of common Right, cannot 
 
 ^^ be difa[bled5 unlefs it be by Ad of Parlia- 
 
 As to the latter, I lament exceedingly that 
 you have exprelTed a Part of it in Latin ; for 
 thofe three fhort Words, fro re nata are, 
 without doubt, not immaterial to the Pur- 
 port of your Dodtrine. And having been fo 
 grievoufly charged with mifconflruing your 
 English, it was a little hard to fet me the 
 Talk of conflruing your Latin. I certainly 
 might have condrued fro re natd to mean on 
 the Spur of a particular Occafion-, or, "to 
 '* SERVE A Purpose" or fome fuch Thing. 
 But for fear of a Miflake, I went to Little- 
 ton's Didionary, and there found that^r^j re 
 natd is Latin for * Seeing things are 
 * AS THEY are' — Well then, your Dodrine 
 
 clearly amounts to this, viz.^^^ " Except 
 
 fuch as are made incapable by Statute, 
 
 * Coke Inft. 4. 48. 
 
 " or
 
 C 49 ) 
 
 ** or adjudged fo by a Vote of the Houfe of 
 ** Commons, ^feeing T^h'mgs are as ibey are all 
 ** others are eligible of common Right." Bat 
 let me afk. Who, of all thofe others may 
 not have his Right taken away by a Vote of 
 the Houfe of Commons, feeing Things are as 
 they are ? I afk pardon, yon have already an- 
 fwered my Queftion ; For you have faid, 
 that «* * Without a Spirit of Prophecy'* no 
 Man can know that. 
 
 Can you then feriouily call this a Right ? 
 Nay, Sir ! Would you not treat with Con- 
 tempt and Ridicule any Man who iliould call 
 that a Right, which without a Spirit of Pro- 
 phecy, no Man can know ? Is that a Right 
 which is held by no Tenure hut the mere 
 Will of Individuals ; and that Will liable to 
 be perverted by Prejudice, fwayed by Paffion, 
 impofed on by Artifice, and feduced by Cor- 
 
 * Letter to the Author of the QuelHon ftated, P. 19. 
 " He could not without a Spirit of Prophecy, when the 
 ** Book was compiled in 1753, or when publiflied in 1765, 
 *' have fpeci^ed the Difability of any private Individual." 
 
 H ruption?
 
 ( 5° ) 
 
 ruptlon ? And if it be once admitted that 
 fuch a Power exifts in the Conflitution to 
 take away the legal Right of the Freeholder 
 and Eledlor j What other Right is fo defended 
 that the fame Power may not at any Time 
 break forth to ruin and deflroy ! With equal 
 Violence I fear it may ; With lefs Reafon it 
 never can. For I hope to fhew, that (as you 
 have ftated the Matter) the Expulfion of Mr. 
 Wilkes, with all its Train of Confequences, 
 was grounded not even upon a Shadow of 
 Reafon — Very properly and becomingly 
 you affume the Merit of diffenting from the 
 Vote of the fecond of February ; becaufe you 
 thought it *' * beneath the Dignity of Par- 
 " liament to cenfure any Libel (however 
 <« atrocious) that was merely diredied againfl 
 *' a Minifler." The Thought is worthy of 
 the Author of Do«flor Blaclcftone's Commen- 
 taries ; for if a Member of Parliament may 
 be expelled, and the Right of Eledion be 
 transferred from the People to the Miniller, 
 
 * Letter to the Author of the ^ujlionjlctsdi P. lo. 
 
 as
 
 ( 5' ) 
 
 u,s a Puni/hment for making Remarks on 
 luch a Letter of a Minifler, whillt the Letter 
 itfelf is to pafs unnoticed 5 our Conftitution 
 does indeed ftand upon a weak Foundation. 
 Honoring you therefore for having difclaim- 
 ed this Part of the Charge, I much doubt 
 whether you can juftify the Proceedings on 
 any other of the Allegations. — The Letter to 
 Lord Weymouth was the only often fible one, 
 and taking that out. What other Part of the 
 Charge can give a Color of Reafon to the Ex- 
 pulfion ? Let us ftate what the remaining 
 Articles were — ■ One was that Mr. Wilkes 
 wrote the North-Briton ; but I am fure. Sir i 
 you will not brand your Majority with fo im- 
 pudent a Violation of the Rules of Law, as 
 to have puniflied the fame Man twice over for 
 the fame Crime by the fame Judicature — 
 Neither will you, I think, defend liis Expul- 
 fion on this Ground — That becaufe Mr, 
 Wilkes is to be imprifoned 'till April next, 
 therefore he ought to be expelled for tlie next 
 five Years to come. But as far as my Memory 
 recoUedis, you confented to the Expullion of 
 Mr. Wilkes folely on account of his having 
 \>zzn foii'uicied of three impious and obfcem Labels ^ 
 H z Another
 
 ( 52 ) 
 
 Another refpedable and learned Gentleman 
 expelled him for the fame Reafon. But this 
 Part of the Charge, though relied on by your- 
 felf and Serjeant N— — , was difclaimed by 
 the Houfe in general : For, thefe Libels 
 fwhatever they are) inflead of being fubmitted 
 to the Judgment, were moft carefully Ihut up 
 from the fight of the Houfe. You will not 
 therefore expofe the Juflice of the Houfe in fo 
 ridiculous a Light as that of a Court condemn- 
 ing a Man, without knowing his Crime, be- 
 caufe' it would offend the delicate Ears of his 
 Judges to hear it named. 
 
 The Opinion, Sir ! that you now profefs 
 • of the Power of the Hoofe of Commons, leads 
 me to make one Oiort Remark, on the Com- 
 paritbn yoa have drawn in your Commen- 
 taries, between the Protcftant Diffenters and 
 Papiiis; Wherein you fay (4. Vol. p. 52) 
 '* The Tenets of Papifts are undoubtedly 
 *• calculated for the Introduftion of all Sla- 
 '^ very both civil and religious ; but it may 
 ** with Judice be queflioned. Whether the 
 ** Spirit, th« Dodrrines, and the Pradices gf 
 " the Sectaries, are better calculated to make 
 
 «' Men
 
 ( S3 ) 
 
 " Men good Subje6ls. One thing is obvious 
 *' to obferve, that (Be/e have once, within 
 " the Compafs of the lafl Century, effe^led 
 ** the ruin of our Church and Monarchy; 
 " which the Papifls have attempted indeed, 
 *' but have never yet been able to execute,"-^ 
 I don't love fpeaking in hard and bitter Terms 
 of Bodies of my Fcllow-Subjed:s of any Dif- 
 tindion whatfoever ; Nor am I going to ana- 
 lyfe what that Idea of Subjedion rnufl be, 
 that can raife a Doubt whether the Prin- 
 ciples of Men, which are faid to be calculated 
 for all Slavery, are not calculated to make as 
 good Subjeds as the Principles of Men whofs 
 Errors lie on the Side of Liberty : But I am 
 proud to own a Regard to the civil Principles 
 of the Proteflant DilTenters, which prompts 
 me to mark thofe Periods of time when they 
 were, and when they were not efleemed good 
 Subjeds. — They were not good Subjeds to K, 
 Cha. ift. — nor to K. Ch. 2d. — nor to K. 
 James 2d ; and they were treated as the worfl 
 of all Subjeds by that Miniftry in the Reign 
 of Q^ Anne, which intended to overturn the 
 Proteilant Succefiion. But they were good 
 Subjedts to K. WilL whom they helped to fct 
 
 upon
 
 ( 54 ) 
 
 upon the Throne; — They were alfo good Sub- 
 jedls to K. Geo. i.— And during the Govern- 
 ment of K. Geo. 2d. were looked upon as me- 
 ritorious and coiifidential Subjeds. Thefe Pro- 
 tectant DilTentcrs then, never failed in their 
 Allegiance to Kings, who governed them as 
 Subjects ; They were not indeed, obedient to 
 Princes, who would have ruled them as 
 Slaves. 
 
 But I took Notice of this PalTage only to 
 give my AfTent to the Fadl you relate, that 
 " during the Compafs of the laft Century, 
 ** thefe Sectaries effedled the ruin of our 
 *• Church and Monarchy"— True, they did 
 fo; but by what Power did they Effedl that 
 Ruin ? — Was it not by the Power of the 
 Houfe of Commons ? And what did the Houfc 
 of Commons do more than * " make the 
 " Law subject to their Votes?" And 
 though I am far from imputing to you. Sir ! 
 a fingle Grain of their Principles ; yet I can- 
 not help obferving the Similitude of your 
 
 * Clarendon's Hid. Fol. Ed. Vol. I. P. 482. 
 
 Language
 
 ( 55 ) 
 
 Language to the Style of thofe great Repub- 
 licans. For, they told the King, that J " to 
 f< judge of the Law belonged to the House 
 ** of Commons : They might and mull 
 *' j'-^^g^ and declare:' It was a Remark 
 on that Houfe of Commons made by the 
 King, (hat f ** tho' they had no mind to 
 " be Slaves, they were not unwilling to be 
 ** Tyrants." It could not be faid oi them, 
 but was a Charader referved for fom« future 
 Houfe of Commons to be both Tyrants and 
 Slaves. 
 
 I WISH, Sir! that thofe who are entrufted with 
 the Government of this now unhappy Coun- 
 try, would turn their Thoughts to the Hiftory 
 of thofe Times ; and confider the real Caufe 
 from whence all the Mifery, Devaftation and 
 Bloodfhed arofe, which ended in the Ruin of 
 the King and Monarchy. And there is a Part 
 of the Earl of Clarendon's Hift. (in the iirfl: 
 Vol. of the Fo. Ed. from the 52d to the 58th 
 Page) that is peculiarly adapted to our pre- 
 
 :t Clarendon's Hift. Fol. Kd. Vol. I. P. 482. f lb. 479. 
 
 fent
 
 ( S6 ) 
 Tent Conrideration : For It (liews how great a 
 Part of the Foundation cf that dreadful War 
 was laid in the fingle Circumftance of making 
 the Courts of Law, and private Lawyers of 
 Reputation, the Inflruments of Attack on the 
 Rights of the People. It was a Notion of that 
 mis-guided King and his mis-guiding Coun- 
 cilors, that if they could get the Judges of 
 Weftminfler-Hall to adjudge and declare 
 that Ship-Money was lawful, Ship-Money 
 would then ftart up into a Law, and the 
 People quietly fubmit to it — They prevailed 
 with the Judges; and, to make all fure, 
 bought off from the Side of Oppofition, the 
 famous Lawyer, Mr. Noy. Hitherto the Peo- 
 ple had born all the Exadtlons of that Go- 
 vernment, (*• *of which. Lord Clarendon fays, 
 many were fcandalous, many ridiculous and 
 all very grievous") with great Patience : they 
 refilled not the Tyranny and Perfecution of 
 the Star-Chambsr and High-Commiffion 
 Courts ; They had even fubmitted to Ship- 
 Money itfelf, as a mere Act of Power — But 
 
 » Ckrcndon's Hift. Fol. Ed. Vol. I. P. SS- 
 
 '* whea
 
 L S7 ) 
 
 '« II when they faw Ship-Money demanded as 
 *♦ a Right, and by the Iworn Judges of the 
 ** Law ADJUDGED fo, upon fuch Grounds 
 ** and Reafons as every Stander-by was able 
 *' to fwear was not Law, and by a Logic that 
 ** left no Man any thing that he could call 
 *« his own ; Then (fays the noble Hiftorian) 
 ** they no longer looked upon it as the Cafe 
 ** of * ONE MAN, but as the Cafe of the 
 ** Kingdom -, and thought themfelves bound 
 
 *' in CONSCIENCE TO PUBLIC JuSTICE HOt 
 
 ** to fubmit," — The prefent Temper of this 
 Nation makes it unneceflary for me to fugged 
 how much more deeply the Minds of the 
 People muft be affedted, by a Violation of their 
 Rights by their own Reprefentatives, than an 
 Invafion of their Property by the Judges; I 
 will therefore only put a Cafe that I have fome- 
 where met with (but forget the Author,) It is 
 this — " Should the General of an Army turn 
 ** the Mouths of his Cannon againft his own 
 ** Soldiers — Would it not inflate the Army 
 ** in a Right of Difobedience" — 
 
 Clarendon's Hift. Fu\. Ed. Vol LP. 53. * Mr. Hampden, 
 I I
 
 ( 58 ) 
 
 I cannot clofe my Letter without making 
 an Apology for prefaming to define your Ex- 
 preffions again (I your prefent Conftrudlicn of 
 them. But as it is no unufnal Properly of 
 KEW Ideas to erafe old ones, there may be 
 Times and Circumftances that may render it 
 almoil impodible for a Man to recollctl his 
 cvv'n Thoughts, when it is very eafily pofTible 
 for another, to collect what thofe Thoughts 
 were. 
 
 Let me now intreat your Pardon for having 
 troubled you fo long. You will forgive me 
 the rather, as you laid me under a Neceffi ty 
 of (hewing that I had fome Principle and fome 
 little Knowledge of my own, without being 
 guided (as you fuppofe m.e) by the falfe 
 GlofTes of a new Ally. That Alliance, Sir ! 
 (of which I am totally ignorant) feems to 
 have given a certain Set of Men as much Sur- 
 prize as Apprehenfion. For to divide and 
 fubdivide, and on a Pretence of breaking 
 Conne(Stions, to deflroy all Faith and Union 
 amongft Men, has been the Syllem of Go- 
 vernment (I mean the interior and real Part 
 of it) for thefe lail izstvi Years. Then might 
 
 the
 
 ( 59 ) 
 
 the Conaitutlon (they thought) be attack- 
 ed with Security, when that Union, which 
 alone could defend it, was made impraaicable. 
 But the Hope was as deceitful as the Inten- 
 tion wicked. For ftill I truft in God, that 
 neither the Arts of Divifion have fo efFeaual- 
 ly facceeded -, nor that Corruption, with all 
 its Extent and Potency, has yet fo obliterated 
 all public Spirit and public Virtue in the 
 Minds of public Men ; That although they 
 may divide on Modes of Adminiftration, yet 
 they will unite when the Foundations of 
 Right and Liberty are attacked ;— Then there 
 can remain but two Divifions, the one (^if 
 you pleafe to call them fo) of Men allied 
 in Defence of the Conditution j the other 
 COMBINED againft it. But in this Conteft, 
 however you may devote your Perfonal Ser- 
 vices, you cannot divert yourfelf of the Merit 
 of having made a noble Effort to unite all 
 Men in defence of our Laws, by having opened 
 to every Man s View the Bleffings he derives 
 from that Part of his Birth-right which con- 
 fiib in the Government of Lawsf . And 
 
 t Major Hcreditas a Jure quam a Parentlbus. 
 
 when
 
 UNIVERSITY OF CALIFORNIA LIBRARY 
 Los Angeles 
 
 This book is DUE on the 1? .' uped be'ow. 
 
 i 
 
 when .^^ iC Political Difputes, and fuch little 
 occafional Writers as I am, (hall be confiained 
 to oblivion, your Comu^'^'^ ? (in fpi*-^ ^f 
 their Author) will remain an honoui 
 Teflimony of your Parts and Knowledge, and 
 a lafling Benefit to your Country. 
 
 As the Head of that Government of Laws, 
 which you have fo ably explained, may our 
 excellent and gracious Sovereign long enjoy 
 all the Glory and Happinefs himfelf that he 
 wifhes to his People, (which is all that is 
 poflible) cannot be more earneftly the Prayer 
 of any Man, than 
 
 SIR, 
 
 Your obedient 
 
 Humble Servant. 
 
 LOS ANGELES