UNIVERSITY OF CALIFORNIA 
 AT LOS ANGELES
 
 SERIES OF LETTERS 
 
 TO THE 
 
 Right Hon. Edmund Burke. 
 
 [Price is. 6</. ]
 
 A 
 
 SERIES OF LETTERS 
 
 TO THE 
 
 Right Hon. Edmund Burke 
 
 IN WHICH ARE CONTAINED 
 
 ENQUIRIES 
 
 INTO THE 
 
 CONSTITUTIONAL EXISTENCE 
 
 O F 
 
 AN IMPEACHMENT 
 
 AGAINST 
 
 MR. HAS r ING S. 
 
 By G. .H A R D I N G E, Efq. M. P. 
 
 LONDON: 
 
 PRINTED FOR T. CADELL, IN THE STRAND. 
 M DCC XCI.
 
 33S 
 413.5- 
 
 J . rip H 
 
 JL 
 
 LETTER THE FIRST. 
 
 Vereor committere, ut non bene provifa et diligenter ex- 
 plorata PRINCIPIA ponantur. 
 
 Clc. deLcg. 
 
 S I R, 
 
 OUGH I have not the honor of your 
 perfonal acquaintance, and am not of 
 confequence enough to intereft your attention, 
 I take the liberty of addreffing you in print, 
 upon a confthutional fubject, which has of late 
 occupied, in ferious argument, thofe who have 
 the will and the power to reafon upon it with- 
 out prejudice. 
 
 To this mode of laying my thoughts before fo 
 enlightened an age, I am not prompted by the 
 arrogant and wild conception, that I could be 
 read, any more than I could be heard, as your 
 antagonift ; but I have recourfe to it, becaufe 
 the habits of guard over exprefiion that may 
 offend, (a guard almoft infeparable from fuch a 
 form of addrefs,) will reilrain any fudden impulfe 
 of the writer to that polemical ,zeal> againft which 
 men of fober minds are prejudiced in fuch a de- 
 gree, as to refufe even truth, if it fhould pafc 
 through fo difturbed a channel : But fuffer me 
 B to
 
 ( * ) 
 
 to add, that, being a zealous admirer of your 
 eminent fame and worth, I fhall, with more dif- 
 fidence upon that account, offer my opinions 
 to the public, where I feel them to be difcredit- 
 ed, as being the reverfe of thofe which you have 
 entertained. 
 
 I, Sir, am one of the few, who thought it 
 would not have degraded, or weakened, any in- 
 quifitorial rights which the elected reprefent- 
 atives of the people are authorifed by the con- 
 flitution to enforce, if the committee had enquired 
 into the law, as it flood upon record in the jour- 
 nals * of parliament, before they affirmed, 
 " That an impeachment, after evidence has been 
 " beard upon it in one parliament, may be con- 
 " tinued in the next, from the point at which it 
 <( flood when the former parliament was clojed 
 " by a diffolution ' which, as you explained it, 
 is the view and fpirit of their vote upon the 23d 
 of December 1790. 
 
 But as the debate on this critical fubjedt was 
 continued for three days, and produced a very 
 able difcuffion of all the various grounds upon 
 which that vote could be fupported, I fhall con- 
 
 * The houfe of lords have inftituted a committee for the 
 examination of precedents, though informed by the com- 
 mons, not of their judicial vote, but of their perfect readinefs 
 to carry on the impeachment ; which readinefs indicates their 
 fenfe of the law to be, that an impeachment is depending. 
 
 fider
 
 ( 3 ) 
 
 fider it, as if the examination of precedents had 
 been directed, and had brought forward, in a 
 parliamentary form, the materials to which the 
 argument has referred. 
 
 It is not in a technical, or contracted view of 
 the fubject, that I lament this refolution, but as 
 tending to confequences that ftrike at the root 
 of juftice, and freedom. 
 
 If it could end with Mr. Haftings, I fhould 
 fay, <f Felices errore Juo /" For I am flill of 
 opinion, that political honor, which is always 
 political wifdom, demands the further trial of 
 that culprit. 
 
 Nor would I perhaps lament this refolution 
 as a mere precedent of the particular doctrine 
 (though queftionable at leaft, upon topics of con- 
 venience and of juftice), if I had not feen it ac- 
 companied, and fupported by topics of reafoning, 
 which appear to me rather calculated, in their na- 
 ture (though not in the view of thofe who made 
 ufe of them) to be the engines of defpotifm, than 
 of liberty, well underflood. 
 
 I allude, Sir, to thofe general principles 
 \vhich have been either directly aflerted, or in- 
 fmuated, and fatally afifumed. 
 
 If they are eftablifhed, there is an end of that 
 
 balance between the rights of the Sovereign and 
 
 B 2 thofe
 
 ( 4 ) 
 
 thofe of the people, which is the vital fpirit of 
 this Conftitution ; for, by thefe principles, all the 
 rights of the Executive Power, as well as thofe 
 of the other Eflates, may acquire an indefeafible 
 character j State Necejjity, the tyrant's plea, may 
 again be made the artful pretence for every op- 
 preffion by either of thefe rival powers, but with 
 an advantage-ground of Parliamentary law. 
 
 I have reflected ferioufly upon thefe principles, 
 and though fome of them are popular in their 
 found, they carry no weight, in my eftimation, 
 but of danger to the government in which I was 
 born, and whofe conftitutional powers I have re- 
 vered, becaufe I believed them to be thofe of a 
 check, formed by jealous claims, not only be- 
 tween thofe who govern and thofe who are go- 
 verned, but, in the fame degree, between the 
 feveral orders of that government, with a refer- 
 ence to each other, as their antagonift, and com- 
 petitor. 
 
 I. " That what is nece/ary to the uncontrouled 
 " and univerfal efett of a Conftitutional Right ^ 
 * f is therefore a fart of it," 
 
 Here no line is drawn, or attempted ; and, if 
 there is none, it leads to endlefs confufion. 
 
 For example, who fhall tell me, that if the 
 Right of Impeachment is abfoiute, and carries 
 
 with
 
 ( s ) 
 
 with it all that is neceflary to its unlimited per- 
 fection, the accufer is, or can be, excluded from 
 the Court who are to fit upon his culprit, while 
 they are debating, and even determining, the va- 
 rious points of law that arife ? Who fhall tell 
 me, that he can have no power to effectuate the 
 continued and perfevering attendance of that 
 Court ? That he has no right of imprisonment*, 
 or of bail j or of enfuring their continuance, when 
 directed by the Lords ? That he may demand 
 Judgment, but has no legal power to demand the 
 execution of it ? 
 
 But let us purfue this captivating fentiment 
 into other conftitutional rights. 
 
 It is the right of the Commons to enjoy 
 unlimited freedom in debate; but is it a part of 
 that right, that no man fhall be turned out of an 
 office held at the King's pleafure, for his vote in 
 Parliament j or, that no placeman can have a 
 feat? 
 
 I give no opinion of my own upon the famous 
 queftion, Whether incapacity of return to Par- 
 liament arofe from expulfion, and gave to the 
 candidate a feat in the Houfe, whom three, out 
 
 * The Lords would not commit Lord Clarendon in 1667, 
 nor this Earl of Danby, at the firft requifition of the Commons, 
 becaufe the offence was not high treafon, though called by 
 that name. 
 
 Of
 
 ( 6 ) 
 
 of three thoufand, electors might have nominat- 
 ed ? But this, at leaft, will be remembered that 
 it was a point of difficulty ; that fome of the beft 
 V/kigs in England (and yourfelf in particular) 
 infifted upon the right of obtruding the candidate 
 on thofe who had refnfed, and ejected him ; that 
 a Refolution, affirming the minority of the votes 
 to give the feat, is expunged from the Journals, 
 which (as I agree with a very eloquent and able 
 Statefman) does not affirm the law to be other- 
 wife, but certainly intimates an opinion that it is, 
 and an opinion of as enlightened a Houfe of 
 Commons as ever fat : Yet if the Houfe could 
 expel, was it not eflential to the uncontrouled 
 and abfolute right of expulfion, that it fhould 
 bar the door againft that fame individual, in his 
 new fhape of a candidate returned immediately 
 after this mark had been fet upon him ? Was 
 it not efiential to the right, as attracting to it all 
 its neceflary advantages, that no peevifh, and 
 captious warfare fhould proceed between the 
 Electors and the Houfe of Commons, by the 
 repeated re-election and refufal of the obnoxious 
 candidate ; but that any competitor who had a 
 {ingle vote, fhould be received, upon the efla- 
 blifhed principle, that a candidate ineligible is 
 as no candidate ? And what a monfter of abfurdity 
 it is, that a Member of Parliament, expelled for 
 the worft offences that can difgrace a man, may 
 
 be
 
 ( 7 ) 
 
 be eligible, may fit by force, upon the re- 
 turn of that writ which declares the vacancy arif- 
 ing from his expulfion ! But how were thofe 
 topics of reafoning met, and anfwered by the elo- 
 quent, and conftitutional arguments * which 
 you, and your friends, adopted with fuccefs ? I 
 will not impair them by attempting to do them 
 jufticej but I will only infift, that, if they were 
 found, they refute that principle which I am 
 now endeavouring to convict of error, and of 
 danger to the government. 
 
 In all thefe, and a thoufand other exigencies, 
 of a fimilar nature, the conftitution of this 
 mixed government looks on both fides, and 
 would rather want a part of its object, or of 
 the means by which it can be obtained, than 
 give to another party in the conteft a right 
 which is not eftablifhed by ufage, or principles of 
 law. Is it not ejfsntial to the uncontrouled effeR 
 of the king's prerogative in declaring war, but 
 is it a 'part of this prerogative, that he fhould 
 find in his public revenue, or obtain by levies 
 
 * The queflion is admirably put, in a mere ftatement of the 
 faSl, by the writer of Thoughts upon the caufes of the prefeni 
 difcontents. " The electors of Middlefex chofe a perfon whom 
 the houfe of commons had voted incapable, and the houfe 
 of commons had taken in a member whom the electors of 
 Middlefex had not chofen." They declared, " that the 
 true legal fenfe of the county was contained in the mino- 
 rity, and might, on a refinance to a vote of incapacity, be 
 contained in any minority." 
 
 J B 4 upon
 
 ( 8 ) 
 
 upon the people, an adequate eftabliftiment of 
 naval, and military force? Can he touch one 
 (hilling of the nation's purfe, if the commons 
 tell him he-fhall have no fupplies ? Many other 
 admitted prerogatives are made nugatory by the 
 oppofition of conftitutional difficulties, indifpen- 
 fible to that vigilant fufpicion which is enter- 
 tained againft the abufe of right *. 
 
 II. " Tbaf no right of the Jovereign can by its 
 " abufe impair the effett of a right which the 
 < c commons enjoy." 
 
 This principle cannot be illuftrated with more 
 advantage than iri the cafe before us, to which 
 it has been applied with fuch captivating talents, 
 and powerful impreffion, by the mod eloquent of 
 men. 7i\\zfubftance of the argument is upon a 
 level to homelier capacities j and may be de- 
 fcribed even by me. 
 
 It has been faid" That impeachment is a 
 ft public accufation by all the commons of 
 <c England againft a delinquent of ftate ; whom 
 " the law, in its regular courfe of juftice, can- 
 " not reach with effect ; that moft of all, it is 
 " pointed againft men of high authority, rank, 
 
 * Mr. Paine, in bis " Rehearfal" (of a new conftitution 
 for Great Britain) has " elevated, and furprized" us with a 
 difcovery, " that in mixed governments no refponfibility 
 " can exift." The charm that binds tins agreeable paradox, 
 is a very fimple one ; he affumes univei-fal corruption as the 
 fecret mover of the whole machine. Righis of Man, p. 1 5 3 . 
 
 2 " and
 
 ( 9 ) 
 
 " and power; that in this view it is, and means 
 " to be, a check upon the abuie of Royal favor 
 " and confidence by wicked Ministers j that it 
 tc gives energy to that wholefome fiction of the 
 " Law which exempts the King from blame, 
 " for the purpofe of difabling him to Ihift the 
 <l entire odium upon himfelf, and weaken the 
 " terror of it againft his advifers. If they are, 
 " in truth, flaves to him, the Constitution 
 " forces them to be refponfible for that fervility, 
 Cf by calling it advice, in order to punifh the 
 " guilt, and avert the mifchief. But if the 
 <c King diflblve the Parliament by his prero- 
 fc gative, to fave a juftly execrated Minifter 
 " from Impeachment, it is no longer a terror 
 fc to the King, or his co-adjutors in the govern- 
 <f ments and as there. is no other appeal, but an 
 " appeal to the fword, they have perfect impu- 
 < c nity, or the nation is thrown into a civil war : 
 So thought, felt, and acted our ancestors in 
 <e the Earl of Danfy's memorable cafe, when 
 " they rejected the King's pardon as an objection, 
 <f in liminc, to their Impeachment. The cafe in 
 ' ( the terms of it was new ; the right of pardon, 
 " taken in the abftract, was unlimited ; but this 
 " limitation of it, their public fpirit challenged 
 " and fecured. Upon the fame principles, 
 " though in a different fliape of them, but no 
 " lefs important, the public fpirit of thefe times 
 C is
 
 ef is called upon to afiert, that no diffolution 
 " of Parliament lhall fave a culprit under an 
 " Impeachment from the continuance of his 
 " trial ; becaufe vain, and impotent would be 
 " the benefit of difabling his plea, e that he was 
 " pardoned,' if the King (hould intercept the 
 " courfe of juftice, by terminaring that of trial, 
 " either at the moment before its regular end 
 " by Judgment, or at any other period of the 
 " evidence, when he Ihould think his favorite 
 " moil endangered." 
 
 This argument, (and I have done it all the 
 juftice I couldy) if it be a little clofely examined,, 
 will prove the danger of leaving thofe bounda- 
 ries which the Conftitution has formed againft 
 every encroachment. 
 
 If the reafoning is correct, and found, it can- 
 not flop at the continuance of an Impeachment 
 after a diffolution of the Legiflature, but muft 
 reach and cut off the King's right of pardoning 
 the fentence ; a right which is, it feems, at this 
 hour, " denied him by all the Whigs, and given 
 " to him by all the Tories-" according to a 
 whimfical note in De Lolme^ very ingenious 
 Eflay upon our Conftitution * : Yet I don't 
 recollect that it was controverted by you, or any 
 
 * It is controverted by Williams, as counfel for fitz&arris, 
 but upon drained analogies between Impeachment and 
 Afpeal. 
 
 S o*
 
 ( II ) 
 
 -of your able frpporters, upon the fubjedl of this 
 Impeachment j but I do recoiled that it was 
 acted upon, in the cafe of the Impeached Rebel 
 Peers, by King George the Firfi , and that it is 
 reprefented by Mr. Jujlice Blackftone> a new fa- 
 vorite of the Whigs, to be a point clear of doubt. 
 
 The Right of making Peers for the very pur- 
 pofe of fecuring the culprit who is impeached, 
 may, upon principles equally cogent, be denied ; 
 and a cafe may be imagined, which heightens the 
 general mifchief refulting from that new Peer- 
 age ; let us imagine the King, with fuch a pur- 
 pofe, to make thofe very Commoners, who had 
 fet their face againft the Impeachment, Peers of 
 Great Britain, the day before trial ; a mifchief 
 that is not quite vifionary, for it has been felt ; 
 and the Commons actually voted in 1640, That 
 Peers, taken from the Houfe of Commons, 
 could not vote upon the Impeachment, becaufe 
 they were ftill accufers, and bound as parties : 
 But will any fober man juftify that vote, or give 
 it the term of privilege a term fo familiar of 
 late, and fo mifunderftood ? 
 
 It was obferved by an acute, and powerful 
 difputant, " That it was not fair to argue in 
 " fupport of a dangerous power, as being legal, 
 * from the admitted legality of other powers, 
 " which, if abufed, might alfo be dangerous." 
 C 2 But
 
 But furely it is fair and found reafbning, againft 
 an argument, which, from the danger of a power 
 in its effect upon rights confeffed, infers, that it has 
 no legal exiftence, to fhew, that other powers, 
 rending in the fame part of the government, ad- 
 mitted on all hands to exift, may yet, by their 
 abufe, injure the very fame rights. 
 
 In anfwer to a fuppofed hiftory of the fact, 
 that the King's right of pardon was refufed by 
 the Commons, where it was attempted in op- 
 pofition to the very outfet of the Impeachment, 
 I would firft afk, if it is necefiary, that becaufe 
 our anceftors made a new, and a very wholefome 
 law, but in a mod irregular fhape, through the 
 channel of powers ufurped in a party- conflict, 
 and which at laft required the guarantee of the 
 Legiflature, we are therefore to aflert, as a rule 
 binding us, and binding the Houfe of Peers, 
 another propofition, which has no principle, or 
 colour for it in the Law of Parliament ? 
 
 But the faff refpecting this pardon has 
 been mifconceived ; and, as every point of it 
 may illuftrate the immediate fubjecl before us, 
 I fhall take the liberty of requeuing a particular 
 attention to it * here, though it (hould rather 
 
 form 
 
 * Before it was pleaded, the Chancellor (afterwards Lord 
 Nottingham] had thrown it upon the King, as a perfonal ad 
 
 of
 
 ( '3 ) 
 
 form a part of another and future difcuf- 
 fion. 
 
 The pardon was pleaded in the court which 
 can alone receive, and alone determine, every 
 fuch plea, that is, in the houfe of lords. 
 Either it was the right, and the duty of the lords 
 to give judgment upon that plea, or there is no 
 point of law judicially before them, upon which 
 they are to determine for themfelves. Yet 
 mark, I entreat you, .the conduct of thofe whom 
 you have reprefented as models worthy of our 
 imitation : Having underftood, that, upon receiv- 
 ing this plea, the lords had committed the offence 
 of appointing a day upon which it was to be 
 argued, they affirm judicially, by a vote of their 
 own, the pardon to be illegal, and " therefore 
 " demand judgment accordingly :" In other 
 words, they dictate what the judgment fhall be: 
 But they do more ; for they vote (9th May 
 1679), that whoever fhall prefume to maintain 
 the validity of this pardon before the lords, 
 without their leave, fhall be accounted a betrayer 
 of the liberties of the houie of commons : 
 < c Itaque perpaucis adverfantibus omnia qua ne 
 (C per populitm, fmefeditione y Je ajfequi pojjie arbi- 
 
 of his own ; with a time-ferving fpirit, and a double trea- 
 chery, which, in other times, would have juftly irritated the 
 commons againft him ; but his evidence was convenient. 
 
 J C 3 " trabantur.
 
 ( '4 ) 
 
 " trabantttr, per fenatum confecuti funt*"-~ 
 They had, with a judicial tone, affirmed the il- 
 legality of the pardon, in a vote the 5th May 
 .1 679-1-; and had dated the fame judgment, in 
 the resolution for an addrefs to the king, 24th 
 March 1678. At a conference, after all thefe 
 meafures had been adopted, they tell the lords, 
 what the pardon is, which is then before them ; 
 defcribe it, as being a calumny upon the king, 
 illegal, and an obftruction to juftice : Yet, 
 in this very conference, they " admit (re- 
 " luctant evidence is always the beft), that any 
 " change of judicature in parliament is of per- 
 ? f nicious confequence to the king, and the 
 people." 
 
 The pardon was never judicially declared by 
 the lords to be illegal ; a difpute arofe concern- 
 ing the right of the bifhops to give judgment 
 upon that plea, and the parliament was dif- 
 fplved. 
 
 * Cicero, Epift. ad Fam. 
 
 f Two things are not a little memorable in their enquiries 
 preliminary to this vote, enquiries inftituted upon the 28th 
 of April 1679; the firft is, that a committee examine pre-> 
 cedents; and the fecond, that, relying upon the negative 
 ufage, they report fmgly the fadl of no fuch pardon having 
 been ever ififued and this, forms the bafts of their fubfequent 
 vote, , 
 
 From,
 
 ( '5 ) 
 
 From this, which is an accurate ftatement of 
 the fact as it was left at the diflblution of that 
 Parliament, what can be more evident, than firft, 
 that in affirming the pardon to be illegal, " and 
 " therefore demanding Judgment accordingly" 
 before the culprit?*yas beard by the Court, thefc 
 public inquifitors and accufers ufurped a judicial 
 character became Judges in their own caufe * 
 and reduced the Houfe of Peers into the mere in- 
 llniments of their will ? Next, that in difabling 
 any " Commoner" (friend, or advocate) without 
 their leave, to argue in fupport of this plea, they 
 were guilty of a moft cruel oppreflion ? But is it 
 lefs clear, that whatever Jenfe, and -policy, may be 
 found in difabling fuch a pardon, there was not 
 a colour of Law for the difability j and that no 
 precedents could help them beyond the negative 
 fropofition^ that no fuch pardon had in fact iffued ? 
 which negative ttfage, you, Sir, and your fup- 
 porters, rejected the other day with fcorn, as no 
 advantage at all to the point made by thofe 
 who reprefented the impeachment of Mr. Haf- 
 tings to be at an end. It was lately urged by a 
 moft able, though young debater, who is of our 
 profeffion, " that what happened in this cafe of 
 " the pardon, was a decided precedent of that 
 " common fenfe, and public fpirit which muft 
 " forever challenge the complete effetl of an 
 " Impeachment, as well as the name of it." He 
 added, <c that what the Commons voted at this 
 * f period, was recognized as Law by an Act of 
 <c Parliament at the Revolution" 
 
 C 4 In
 
 ( '6 ) 
 
 In the firft place, nothing is more clear than that 
 the Act in queftion patted many years after the 
 Revolution (in the i2th of William IIL); and 
 is, of itfelf, a complete evidence againft the fup- 
 pofed legality of the doctrine affirmed by that 
 vote : For it is a new Law, and it is not a de- 
 claratory one. But there is a very material fac~b, 
 which never has been once noticed in the de- 
 bate i and it is, that at the Revolution, when a 
 laudable anxiety was exerted for the declaration 
 of all eflential and legal claims, affecting the 
 King's prerogative, and liberties of the fubjed, a 
 Committee who prepared heads for the Declara- 
 tion of Rights, had made this, one of them : 
 " No far don to be pleadable to an Impeach- 
 <f mentf ;" but, "for divers, and weighty rea- 
 " Jons, they omitted it in the Declaration * it- 
 " felf:" Nor is it either in the Bill of Rights, 
 or in the Bill of Indemnity. Indeed, if the 
 words had flood, they would have pointed rather 
 at a new, than a declaratory Law ; efpecially as 
 the Report had feparated this article into a differ- 
 ent clafs from that of powers which it affirms to be 
 illegal. The Commons took the hint from their 
 Committee, and would not rifk, in the Declara- 
 tion of Rights, their own judicial oracle againftthe 
 legality of a pardon, as pleadable to an Impeach- 
 ment; which oracle they muft therefore have 
 confidered as z.jiblwn, though falutary, and conve- 
 
 f zd Feb. 1688. The article is adopted by the Houfe, 
 for under it is written " Agreed." 
 
 * As they inform the Houfe, themfelves, in a fecond Re- 
 port, jth February 1688. 
 
 nient.
 
 nient. The commons, though for a time 
 averfe to the only expedient that remained, that 
 of a new law, had recourfe to it in the end, 
 and thus admitted, that grounds of policy inju-* 
 rious to the eftablifhed right of the fovereign, 
 could not be received by the good fenfe of the 
 conftitution as grounds of taw, till the legifla- 
 ture had enacted them. 
 
 Sometimes, however, the queftion was a lit- 
 tle fhifted the other day j for it was put thus 
 (but it was a diftinction without a difference) 
 " Let the king (till have a right of diffolution 
 " uncontrouledy but let the right of impeach- 
 " ment be equally uncontrouled. The diffolu- 
 " tionof parliament does not, ofnecefilty, mark 
 " the termination of an impeachment, and the 
 <f two rights would not clafh in the lead, unlefs 
 " this extravagant effect were given to the 
 " king's prerogative by a fide- wind, an effect 
 " not effential to it, and which is never to be 
 " fuppofed a part of its view." This begs the 
 whole queftion upon the end of an impeach- 
 ment, as refulting from the end of a parliament*. 
 
 The 
 
 * But why ftop at the continuance of an impeachment, in 
 
 the teeth of a diffolution ? Why not refufe the right of dijjb- 
 
 lution, or even of prorogation, pending an impeachment ? 
 
 Will any man tell me, that both of them are not injurious tq 
 
 t D the
 
 ( "8 ) 
 
 The next and third principle gives a death's 
 wound, in my opinion, to that ftability of 
 rule which is the fafe-guard of us all againft any 
 abufe of power, but moft of all in criminal 
 proceedings. 
 
 III. " 'That a more liberal mode of reasoning is 
 " necejfary upon CONSTITUTIONAL principles 
 " of LAW, with a political view to their im- 
 " portance, and particularly againft offenders 
 " of fiat e" 
 
 The perfection of rule is, that it looks more 
 at the uniformity of juftice, than at the policy 
 and fpur of redrefs to a particular mifchief.- 
 No court in this mild government thinks it 
 humiliating or dangerous, to give the loweft or 
 the higheft culprit an equal Ihare of its prefump- 
 
 the right of the commons, as public accufers ? One of them 
 fhifts the accufer, and may convert him into a partifan for 
 the culprit ; the other may difarm the evidence by delay, or 
 tire out the accufer : It is true the king muft have a parlia- 
 ment again in three years ; but three years form an interval 
 much too long for the fafety of an impeachment. Indeed, I 
 confefs, it has always appeared a very inadequate provifion for 
 the liberties of the fubjeft, that, as the law was framed in king 
 William's reign, the king is now able to fufpend a parlia- 
 ment for any time (hort of three years ; nor does it ftrike me 
 as a law that has enadled the Bill of Rights, in that part of it 
 which had ftipulated, that parliaments were to be held/r*- 
 quently. 
 
 tions
 
 ( '9 ) 
 
 tions in favor of innocence; of its jealoufy 
 againft evidence of guilt j of its guard over 
 all the eflential forms, and barriers of juftice, 
 in the mode of reaching his fortune, his cha- 
 racter, his freedom, or his life. 
 
 I know it has been often contended, that 
 when the legiflature afTumes a judicial charac- 
 ter for the fafety of the public, it may difpenfe 
 with judicial rules, and (as it was profefled in 
 the Earl of Stafford'?, attainder) " that he, 
 " who, deferving to die, fuffers by an a6t of the 
 tf whole government in its parliamentary form, 
 " has a juft fate, though rules and principles 
 " of eftablifhed law, either in the evidence or 
 " defcription of his guilt, may have been 
 " violated." 
 
 But, at lead where both houfes aci in their 
 divided and feveral functions of accufer and 
 judge againft any individual, we are no longer 
 free, if the rule can be relaxed, or {trained, or 
 invented, or denied, as the importance of -the 
 political object may fuggefl. 
 
 The fword of this calamity hangs over us* 
 
 D 2 IV.
 
 ( 20 ) 
 
 IV. CONSTITUTIONAL RIGHTS have lefs of rule 
 in tbem y than rights of a lefs interefiing nature, 
 and may acquire more or lefs weight from the 
 exigencies of political convenience, to which 
 they are applied. 
 
 If Ccnjlitutional Rights could be thus mea- 
 fured, all diftinctions between future policy and 
 exifting rule would be loft, and the good faith 
 of public fecurity would be fliaken to the root ; 
 every link of that chain which unites the various 
 and rival powers of government would be endan- 
 gered, and we (hould expofe this beautiful fyftem, 
 either to the defultory hand of caprice (which 
 is perhaps of all tyrannies the worft), or to the 
 cafual impulfe of party-violence. 
 
 There is nothing more delicate, than how to 
 adjuft, and limit this argument of convenience; 
 when it is prefled in aid, as an evidence of 
 right. Where there is a reafonable doubt, which 
 of two oppofite rights can prevail in point of 
 law, the topic of convenience may determine it ; 
 but when there is mutual inconvenience, and the 
 right is clear upon one fide, but very difputable 
 on the other, it never can, without infinite peril, 
 be weakened in its effect by the difcuffion of 
 more or lefs inconvenience, as between the 
 right which is clear, and that which is difputable. 
 
 The
 
 The inexpediency, ancient, as well as modern, 
 for it muft be fo argued, of ending an impeach- 
 ment by the difiblution of parliament, has been 
 ftated as being univerfal and clear of doubt. 
 If this were true, it would not (hake the legal 
 confequences of an eftablilhed right. But if 
 that view of the fubject is purfued, it will ap- 
 pear, that many reafons of convenience, and of 
 juftice t may be adduced in fupport of a legal 
 doctrine, which appears to be fo indifputable, 
 that no evidence of impolicy refulting from it 
 would move the rock' upon which it ftands. I 
 have faid, that in treating the fubjecl: of this ex- 
 pediency, we muft in part carry it back to an- 
 cient periods, and efpecially to thofe in which the 
 right was firft aflumed. For in conftruing an 
 ancient right, or principle of law, the policy of 
 them, when they were ancient, is a good and 
 found argument in their favor, as binding rules, 
 till the legiflature takes off the fetter ; though, 
 by fubfequent laws, that policy may be weaken- 
 ed or deftroyed. 
 
 Let us then firft imagine the interval of three 
 or four years : I am here going back to early 
 periods, becaufe I am aware, that, by an acT: of 
 king William, a parliament is now to be called 
 
 within
 
 within three years ; but I have a right, upon 
 fuch an enquiry, to look back at the interval 
 of more thznfeven years between the parliament 
 that "was diffolved in 1515, and the next; of 
 more than five and a half, between the parlia- 
 ment that was diflblved i8th March 1580, and 
 the new one ; of more than four and a half, 
 between that which had a fimilar fate upon the 
 20th March 1588, and the fucceeding onej 
 of more than five and a half, in king James's 
 reign, between the parliament that ended ift 
 June 1614, and the next; but above all, of 
 twelve years in king Charles's reign, before the 
 civil war *. 
 
 Let us imagine all the witnefies dead whom 
 the culprit was to have called in his further de- 
 fence i let us put the cafe of a dijjolution at the 
 point of crofs- examining an important witnefs 
 for the accufer his evidence has made its im- 
 preffion the court is at an end, for a time at 
 lead the interval is long and the witnefs dies. 
 
 * In S treated s cafe, 5 Car. II. 1653, a judge exprefles 
 himfelf thus : " If an order in parliament fhall be in 
 " force after the diflblutionof a parliament, and there bean 
 " order for the commitment of one or mere, I pray which 
 " way can the fubjeft be relieved but this way in cafe we 
 " mould live to fee a parliament but once in an age, as in 
 " the latter end of king James, or as in the reign of the 
 " late king :" State Trials, vol. II. 
 
 Let
 
 Let us imagine the culprit a popular fa- 
 vorite ; the king his oppreflbr, by a corrupt 
 houfe of commons; and the imprifonment, 
 by a judicious number of thefe dijfolutions t 
 an imprifonment of ten years, or indefinite (as 
 of courfe it is), at the mercy of his royal per- 
 fecutor ; I would afk, if demonftration would 
 not be required, before fuch a tyranny could 
 be admitted, as the effecT: of his legal power in 
 diffblving the parliament ? 
 
 Whatever tends to aggravate the mifchief, not 
 only of delay t but of any other, and peculiar fe ve- 
 rities impofed upon the culprit under an impeach- 
 ment, for the fake of public juftice, ought certain- 
 ly to be avoided, unlefs they are effential to' the 
 nature and foul of that proceeding. I hope this 
 principle is correct ; I am fure it is juft, and hu- 
 mane " bonum facile crederes" Let it be ap- 
 plied : It is a very peculiar circumftance of ad- 
 vantage given to this accufer, that, as the public 
 trial is watched by him, he may not only, at a 
 convenient minute, recal a charge which he is not 
 able to fubftantiate, but may accufe again, and 
 again, upon points abfolutely new: Upon every 
 adjournment^ and prorogation^ as a witnefs drops, 
 or comes forward, this right may be exercifed ; 
 but if the king diffohes a parliament, and for- 
 
 bears
 
 bears to call one (fay for two years and a 
 the impeachment ftill defending^ and liable to be 
 refumed f , how does this advantage accumulate 
 againft the devoted head ! No public intereft 
 (which, in fome few cafes, it may accomplifh) 
 can atone for fuch a deep wound in thofe gene- 
 ral principles of mercy and benevolence, which 
 elevate our criminal juftice above that of all na- 
 tions upon earth. If it be faid that between one 
 parliament and another, the interval is now be- 
 come extremely Ihort, not only in point of habit, 
 but from various political neceffities; which 
 make it, in effect, almoft impoffible for the 
 king to difpenfe with a parliament beyond the 
 ufual period between the new writs and the 
 return : Yet can I fairly be told, that even 
 fuch an interval may not, by influence upon the 
 new and general election, upon the new and 
 elected fixteen peers of Scotland, or upon a 
 new batch of Englifh peers created within the in- 
 terval, turn the fate of the culprit ? 
 
 There is another powerful objection in point of 
 juftice (which I hope is convenience too, and the 
 
 * Charles the fecond laid afide parliament for upwards of 
 three years before his death. 
 
 f To imprifon " till delivered by the houfe of lords," if 
 it extends to the next houfe of lords, is to imprifon " during 
 " the king's pleafure;" which isdireftly againft the " peti- 
 <' tion of right:" as the EarlofDanby well argued. 
 
 only
 
 ( 25 ) 
 
 only convenience that will be named in criminal 
 proceedings) to the continuance of impeachment 
 after a new parliament. The discretion of the 
 commons whether to continue, or abandon the 
 impeachment, if they at all exercife it by a due 
 examination of the evidence which has been 
 heard, is to depend upon written evidence at 
 beft; whereas, the original accufers heard the 
 evidence, and marked its imprefiion upon their 
 own, as well as the public mind. The judges, 
 who are new (the peers of Scotland, for example, 
 recently elected), will determine upon written 
 evidence alone, the guilt, or innocence, (and 
 as it may be in fome cafes,) the life, or death, of 
 the culprit. 
 
 It may be faid, that adjournments and pro- 
 rogations, indifpenfible to the power of the 
 lords, and the power of the king, may alfo be 
 of the fame prejudice. But they are efiential 
 parts of the conftitution, and eflential defects 
 of impeachment, co-seval, as far as we can trace 
 them, to the origin of that proceeding. Shall 
 we, therefore, fuperadd, upon refined, and ftrain- 
 ed analogy, the accumulated prejudice of all thofe 
 cruel differences againfl the perfonal freedom of 
 the fubject, which a new parliament may 
 produce ? 
 
 We are told, with an ingenious fallacy, that 
 
 viva voce evidence is not univerfal, or eflential, 
 
 E in
 
 in other courts ; that judges aggravate, or mi- 
 tigate punifhment, upon written evidence, de- 
 livered in the form of an affidavit ; that every 
 judge who makes a note of that which he bears, 
 depends ultimately upon the note. 
 
 Here t\vo things are blended into one. Where 
 the court has a difcretion in the meafure of pu- 
 niftiment, the legal evidence of mitigating, or of 
 aggravating circumftances, prefents itielf in the 
 form of an affidavit. But the fecond propofi- 
 tion, which has not the leaft analogy to the firft, 
 is a perfect miftake. 
 
 For, upon every indictment, before the fact of 
 guilt can be eftablifhed, though he takes a note 
 of the evidence, he has a memory of his own to 
 accompany that note j and he never depends, in 
 ftating facts, from which a verdict of guilt, or 
 of innocence, may be inferred, upon the memory 
 of 'others, who heard what he, neither actually 
 heard, nor could have heard, himfelf. 
 
 But if it were otherwife, it would not apply 
 to this cafe, in which the peers are alfo juries 
 upon the important queftion ofthe/##i afiift- 
 ed by notes of their clerks, or agents, but necef- 
 farily enlightened, if their department is well ex- 
 ecuted, by that, which no written evidence can 
 record j by their perfonal comment upon the 
 demeanour of the witneffes, by the impreffion 
 13 firft
 
 firft made upon underftandings prefent at the 
 fcene, when the fads are brought out, and com- 
 pared. 
 
 If the note of thofe who heard, were fufficient, 
 as a guide of others, who neither heard, nor Jaw 
 the witnefles, why not receive univerfally upon 
 impeachments, written evidence, taken by dele- 
 gates, or committees, in Weftminfter Hall, and 
 brought into the houfe of lords upon the faith 
 of their accuracy ? Why attend thefe trials ? To 
 thofe who don't bear the evidence, it is, merely 
 written evidence, or it is the loofe memory of 
 others j which is even worfe. 
 
 Extreme cafes are liberal and fair illuftrations 
 of a doubtful rule ; which is prefied, upon the 
 topic of convenience : And the queftion is not 
 lefs fair, than it was ingenious, which one of the 
 diffentient lawyers addrefied, if you remember, 
 to the chairman of the committee > " How 
 <c could he, if fpeaker, inftead of chairman, 
 " and if not in the laft parliament, give a caft- 
 " ing vote upon the delicate queftion of pro- 
 " ceeding in the impeachment, or dropping 
 " it?" The difcretion of this public accufer, is 
 a very important branch of his right, and parti- 
 cipates, in that extent, the judicial character : 
 but where can the materials of fuch a difcretion 
 be found, by thofe who are ftrangers to the evi- 
 E 2 dence,
 
 dence, and the arguments, in a caufe which they 
 never heard, and in a court which they never 
 attended ? 
 
 But, without any fuch illuftrations as thefe, 
 the leading features, and principles of our con- 
 ftitution, prompt us to give our anceftors credit 
 for policy in that fyftem of check which they 
 have impofed upon all the rights of govern- 
 ment, and which rights are feldom abfolute, or 
 indefeafible, in power, though in theory they 
 admit of no limitation ; becaufe they are met, 
 and counteracted, by the effect of rights, and 
 competitors, equally independent. Let me afk 
 of you, who know the conftitution fo well, if 
 there is any one feature of it more prominent, 
 than a mutual jealoufy of all the cftates that 
 form the government, and a mutual check, 
 univerfally operating between them, in the ori- 
 ginal frame of their inherent powers ? 
 
 I have the honour to be, 
 
 S I R, 
 
 With perfect efteem, 
 Yours, &c.
 
 LETTER THE SECOND. 
 
 '* A reprefentative (hould never facrifice his unbiajjed opi- 
 " nion ; his mature Judgment ; his enlightened confidence, 
 " to his eleflors; to any man ; or to znyfet of men living." 
 Mr. BuRKE'j^mv?> to the Electors 
 of Briibl, 3^ Nov. 1 774. 
 
 S I R, 
 
 IF the general principles which I have taken 
 the liberty of examining, are mifconceived, 
 and fome of them (particularly the laft, which 
 confounds political expediency with conftitu- 
 tional right) queftionable, at lead, in their appli- 
 cation, upon what other grounds can it be alert- 
 ed, that the impeachment againft Mr. Haftings 
 proceeds where it left off? 
 
 We (hall, at lead, find thefe other grounds, in 
 fad, as technical^ as thofe which are fet up againft 
 them are defcribed by the laymen to be : But I 
 fhall hope to convince the reader, that not only 
 they are techinal, but falfe analogies ; and that 
 folid principles, rooted in the genius of the con- 
 (litution, deprecate the continuance of this, or 
 of any impeachment, after the evidence has in 
 fart been heard. 
 
 It was infifted " That parliament is never 
 f extinguished, and that it never dies - t that it 
 
 Jleeps,
 
 ( 30 ) 
 
 c< Jleeps, after a diffolution, till the king's prero- 
 " gative fhall awaken it ; that peers have ftill 
 <e the inherent right of demanding to fit injudg- 
 <f ment *, as well as to exercife their legiflative 
 " character, when the next parliament (hall 
 " come into action ; that it is the people who 
 " impeach by their legal organ, the reprefent- 
 " ative ; and that it is the people who refume 
 " by a new reprefentative, their function as 
 cc public accufers." It was compared to the 
 attorney general, and the king's indiftment, pre- 
 ferred by him. The idea of confidering the 
 popular elector as loft, upon conftitutional 
 principles, in his elected reprefentative, was 
 treated with fuccefsful ridicule by one of the 
 moft eloquent fpeeches that perhaps was ever 
 delivered in parliament. As I had the misfor- 
 tune to be the object of that ridicule, I have 
 re-examined what I faid, not only without pre- 
 judice in favour of it, but with an apprehenfion 
 that I had been in the wrong when I laid 
 " that I would refufe the character of agent, or 
 <f attorney, for the people of England ; that I 
 " knew of no commons but thofe who fat as a 
 
 * In the fecond volume of State trials, p. 210, upon a 
 habeas corpus in Streater's cafe, Lord Chief Jujiice Rolle faid 
 exprefsly, " That a Parliament was a new court, appearing, 
 " and fummoned by Mtu writs ;" which is alfo a direl an- 
 fwer to an affertion made in the debate " That a conrt of 
 " parliament would befelf-refumed, when the parliament fhould 
 " meet again." And where (unlefsin Ireland) is the inherent 
 right of peers at the time of the dijfilutian> \yho are created 
 after it ? 
 
 houfe
 
 ( 3' ) 
 
 " houfe of commons * j that I confidered 
 <c them as having a very aweful truft repofed in 
 them j as reprefenting the popular fcale of the 
 <f government, but as being independent of any 
 " popular controul over them, and as being 
 " equally independent of their predeceflbrs in a 
 " former parliament." In other words, " that I 
 <c confidered them as the commons, or people 
 " of England, appearing, deliberating, and 
 " acting, for the popular intereft, in the moft 
 <f practicable form which the wifdom of our 
 " anceftors, and the genius of the conftitution, 
 " had been able to model." On the other 
 hand, in this view of them, no tyranny is to 
 be feared j the right of petitioning j the po- 
 pular fentiment abroad, upon meafures of alarm ; 
 the fear of its effect upon a general election, 
 (that political and very aweful teft,) are wife, 
 and provident checks upon this power of the 
 commons ; but their conftitutional independence 
 of the eleffsr (in a local, or general fenfe of the 
 
 * Mr, Burke has touched this delicate fubjeft with a maf- 
 terly hand, in his " Thoughts on the caufes, Sec." " A po- 
 " pular origin cannot be the characleriflical diftindlion of a 
 " popular reprefentative. This belongs equally to all parts 
 " of the government. Tbz king is the reprefentative ef the peo- 
 *t pl e , So are the lords ; and fo are the judges. They are 
 all truftees for the people. The forms of our government, 
 " and the perions svho compofeit, originate from the people. 
 " The virtue, ej/'ence, zn&fpirit, of a houfe of commons, confift 
 " inks being the exprefs image of the feelings of the nation." 
 
 term)
 
 ( 3* ) 
 
 term) is perfect. Mr. Burke, indeed, in the 
 pamphlet juft quoted, recommends, " a detailed, 
 " and ftritt attention to the reprefentative, in 
 < e counties, and corporations, who are to form a 
 " 'political flandard of judgment, byjyjlem, upon 
 C{ his conduct, which conduct is to be known, 
 " in part, by an accurate lift of the votes *." 
 
 This, if it had not been written by an approv- 
 ed, and zealous advocate for political decorum, 
 would have ftruck me as a wild, and, at leaft, as 
 a very unconditional, reftraint upon the inde- 
 pendence of the commons in parliament. 
 
 As to the opinion delivered by me in the debate, 
 I religiouQy perfevere in it, and cannot repent of 
 it, or think it worthy of ridicule, if a little more 
 attention is given to it, than is due, perfonally, 
 to me. 
 
 But it has been faid, Cf the commons impeach 
 " in the name of themjeliies, and of all the com- 
 " mons of the realm." This proper, andempha- 
 
 * One peculiar benefit, and according to Montefquieu, one 
 efficient caufe, of the reprejentati'vec.licira.&.er, is, that it guards 
 the conftitution againft this very idea of a political Jlandard 
 upon the meafures of government, attempted by the people 
 at large ; who cannot form it with accuracy, and judgment, 
 or make the attempt without anarchy, and mifchief. The 
 habit of political difaiflion is not for them, and they have put 
 it into better hands ; though it is, upon great emergencies, 
 their exclufive privilege, to decide \ by their feelings, more 
 than by their opinions* 
 
 tical
 
 ( 33 ) 
 
 tical defcription of the reprefentative char 
 which they hold, adds not a fingle feather to the 
 power of the conftituent, who is bound in every 
 one act, by the independent energies of that min4 
 which he has entrufted. The tommons in par- 
 liament are, as Mr. Burke exprefles it, in the 
 note juft quoted, by " exprefs image" the com- 
 mons of the realm. 
 
 I agree, that we are the legal organs of their 
 will j but of their will* as communicated, and 
 implied, in our own. When I faid, " that we had 
 " no fuch character as that of their attornies y or 
 " agents" I meant, and explained myfelf to 
 mean, that after we took our feat, we could 
 not be at all bound by their commands, or in- 
 fluenced by their wifhes, againft our own judg- 
 ment*; that we could not be difowned, or 
 abandoned by them ; and (which is the moft 
 important circumftance) that we could not be 
 touched by what our predeceflbrs, in the re- 
 prefentative character which they had exercifed, 
 had faid, or done, if it had not been fealed by 
 the legiflature. The cafe put, of the attorney 
 general, is decifive to mark, not the analogy, but 
 the diftinction : " If be dies, the fuit proceeds., 
 " or may proceed where it left off:" True; 
 
 * An opinion countenanced by Mr. Burke, and fupported 
 with his accuftomed abilities, in a perfonal fituation of his 
 own, recorded by himfelf in the paffage which 1 have bor- 
 rowed, and placed at the head of this letter, 
 
 F but
 
 ( 34 ) 
 
 but is the attorney general independent, either of 
 the king's pleafure,or of his predecefibr in office ? 
 The king may difplace him at a moment ; and 
 he is bound by the acts of the former attorney 
 general. Why ? becaufe the king is bound by 
 them, as acts of his own, through bis own Jer- 
 vant) which he never can recall. But I con- 
 ceive it an eflential part of our character, that we 
 have no fuch fetters upon us-, that we are con- 
 ftitutionally perfeff ftrangers * to the commons 
 who fat in a parliament that is no more j and 
 that we are not evenfuffered by the conftitution 
 to give them credit for any one of their proceed- 
 ings, let it have been ever fo wife, deliberate, fa- 
 lutary, or acceptable to ourfelves. 
 
 It was in this view, that I marked the various 
 inftances, in which, though it might be ex- 
 tremely inconvenient, the new houfe of commons 
 were difabled by the ancient, and modern prin- 
 ciples of parliamentary law, to carry on the chain 
 of proceeding from the link at which it was left, 
 when the former parliament clofed : Nor was it 
 only, as a part of the legiflature, in framing bills, 
 or in the appointment of committees \ for any other 
 
 purpofes j 
 
 * In S treated s cafe, the words of Chief Jujlice Rolle are 
 thefe : " An order in parliament is not binding in fucceffion. 
 How (hall the next parliament know of a former parlia- 
 " ment's order?" 
 
 f In the cafe laft quoted, the Chief "Juftice argues from the 
 analogy of committees againft the continuance of an order to 
 
 imprifon
 
 ( 35 ) 
 
 purpofes ; but as a houfe of commons tenacious 
 of all its feparate privileges, that it fuffered, by 
 force, that inconvenience. What becomes of the 
 legal organ, when the commitment for a fingle 
 day will atone for the mod atrocious at of dif- 
 obedience, or of infult, if the day is clofed by a 
 difiblution of parliament ? What becomes of 
 it, when a day having been appointed for the at- 
 tendance of a culprit, if the day never comes in 
 that parliament, he, the culprit, is free as air * ? 
 What becomes of the legal organ when a bill 
 of attainder has patted the houfe of commons, 
 after as tedious an enquiry as even preceded this 
 impeachment ? Could it be fent up, in that 
 ftate, by the next houfe of commons ? Yet, in bills 
 of attainder, the very nature of the expedient 
 points at a culprit of more iniquity, and af- 
 fumes a demand of more prefliire upon the juf- 
 tice of the kingdom, than where impeachment 
 is preferred. Put the cafe, that fuch a bill had 
 been lent up to the lords, and had pafTed their 
 aflembly too; but that before the king had given 
 aflent, the parliament had been clofed Could 
 
 imprifcn by parliament, as a court ; and pronounces judicially 
 that both are at an end when the parliament has been diflblved. 
 " We do not reverfe" (are his words) " the order of parlia- 
 " ment, it is reverfed by the parliament's diflblution." 
 
 * 17 Cha. U. 1665. The king againft Pricbard. i Le- 
 vinz, 165. It was held by the court of king's-bench, that 
 even prorogation had this effect upon a commitment by the 
 lords for a contempt ; and it was diftinguifhed in that refpeft 
 from writs of error. 
 
 JF2 the
 
 ( 36 ) 
 
 the bill be offered by the two houfes united, in 
 the next parliament, for the royal affent ? 
 
 I am perfectly aware, that in every cafe of 
 bills, there is a rule which treats them as being 
 imperfect acts of the entire legiflature, and there- 
 fore difables the continuance of them, unlefs by 
 the fame parliament ; but why fliould the dif- 
 ability of their continuance refult from their 
 legal imperfection, if the new houfe of commons 
 may acquire pofleffion of the evidence, or may 
 agree to the wifdom of the original proceeding ? 
 Why fliould not they tell the lords" We 
 " think it fafe, to offer the bill as it ftood in the 
 " laft parliament > many of us formed that bill j 
 <f the reft of us are mailers of it by confutation, 
 " and report."^" No," the conftitution anfwers 
 them, " you fliall fee, in all your functions, 
 '* with eyes of your own, before you act in pro- 
 " ceedings that are intended ultimately for a 
 <c law." In attainder y the mifchief refylting 
 from a dijfolution, is precifely the fame in its na- 
 ture, but heavier in its degree. There too, the 
 commons are more than accufers upon probable 
 evidence (which is ground enough to juftify an 
 impeachment); they are judges, though in a le- 
 giflative drefs, and pronounce the culprit guilty 
 of a capital offence, as a delinquent of ftate, when 
 they pafs the bill. If it lhall have paffed the 
 lords, that fame affembly, who upon the im- 
 peachment are judges, and without appeal are 
 
 judges
 
 ( 37 ) 
 
 judges again, though in a different fhape, and ju- 
 dicial afleflbrs to the commons : If they agree, it 
 is the united, and judicial authority of both af- 
 femblies. In a bill of attainder it has been found 
 expedient, (and, though it is a delicate power, I 
 hope it will never be abandoned,) that a legifla- 
 tive controul, of more latitude, fhould reach an 
 offender whom the rules of judicial policy would 
 exempt from punilhment. 
 
 Here, then, is a cafe that cries aloud againft 
 the power of a dijfohition to fuperfede the whole 
 (rial, and challenges to the public fecurity, that 
 no fuch expedient fhould intercept the juftice 
 of the kingdom ; but who (hall tell me, that 
 Lord Stafford's bill of attainder could have pro- 
 ceeded, if the king had clofed the parliament 
 before that bill had obtained the royal afient ? 
 
 I have now difcufied every topic of reafon- 
 ing which I can recollect, upon the various 
 points of the debate, independent of that ujage 
 which is, in other words, the courfe of parliament. 
 
 Here it was pronounced a fatal defect in 
 thofe who rcprefented ujage to make an im- 
 peachment, and the parliament that gave it birth, 
 die together, that no clear tenor of ujage could 
 be found in fupport of their hypothefis. 
 
 But
 
 ( 38 ) 
 
 Butfurely, the onus probandi has been fhifted 
 in this objection, and clear ufage has been re- 
 quired from our fide of the debate ; though it is 
 neceffary to require it from yours, which is to 
 fupport, at lead, a departure from the original 
 principles of a new reprefentative, unfettered in 
 every other imperfect proceeding, by the act of 
 his predeceflbrs who had begun it, when they had 
 a character equally independent ; and the argu- 
 ment for continuing this impeachment, be- 
 gins with no advantage-ground, if it can . be 
 laid with truth, in oppofition to its advocates, 
 " You have no clear ufage for continuing an 
 " impeachment, after evidence, and in ftatu 
 " quo j that is, where the evidence broke off in 
 cc a former parliament." 
 
 It is an admitted fact:, that impeachments are 
 as old as the loth of Richard thejecond at leaft. 
 But from that period, not ONE of them till 1678, 
 has been continued in the next parliament; and 
 even to this hour, no ONE impeachment has 
 ever been taken up in the next parliament, where 
 afingle witnefs had been examined in the former. 
 Is negative ufage of this kind, mfignificant, where 
 the general principle of difcontinuing what the 
 former houfe left imperfect, is collected from fo 
 many pofitive inftancesj in oppofition to the 
 fame topic of Jalus populi, or Jtate-neceJJity ? 
 
 Upon
 
 ( 39 ) 
 
 Upon the argument of that captivating plea 
 which has been ufed againft the king's protection 
 of his favorite miniiler, I have taken pains to 
 difpolTefs myfelf of all prejudice j and, like the 
 conftitution, to look on both fides, particularly 
 in that view of the fubjel which points at the 
 dfffolutioiiy as enabling in effect the very fame 
 -pardon to exift, though in a different fhape, which 
 the law has di fabled when it can fhow its face 
 upon the record. But 1 am not fure, that k 
 would, upon the whole, be wife for the public 
 fecurity, and for our liberties, if an ad were to 
 pafs that fhould in future difable tbis effect of a 
 dilution > unlefs with many guards againft the 
 abufe of that new arrangement : Of this I am 
 perfectly fure -, that it may be converted into an 
 engine of oppreffion, by delays, and changes in 
 the judge, or the accufer, that would be deeply 
 injurious to the culprit. 
 
 Befides, the whole argument afiumes, that of 
 courfe the king will make a bad ufe of his -prero- 
 gative ; and that no houfe of commons will ever 
 make a bad ufe of their "privilege -," to ufe the 
 fufhionable word. I am as firm an advocate for 
 the popular fcale of the government as any wbig 
 in his majefty's dominions ; but I defire to be no 
 better whig than Serjeant Maynard, and Lord 
 Somers, who tempered the Revolution, by thofe 
 reciprocal guards between the monarch, the 
 
 ariftocracy,
 
 ( 40 ) 
 
 ariftocracy, and the commons >, upon ' which 
 alone, that liberty, which is the animating prin- 
 ciple of our conflitution *, will for ever depend. 
 
 The independent character of each eftate, in 
 all its branches of power, is the vital principle of 
 our conftitution. The commons have the admit- 
 ted power to accujey and recall the accufation at 
 pleafure ; the lords are to judge, and, like other 
 courts of legal jurifdiction, by rules of their own j 
 the king has the exclufive right of pardoning 
 the fentence. 
 
 It is agreed, that as the fame commons may 
 at any time clofe their impeachment by their dif- 
 cretion, it muft of courfe drop in the next par- 
 liament, unlefs revived by the difcretion of their 
 
 fucceffors j and that a new election may 
 
 return to parliament thofe who did not, and 
 could not, hear the evidence upon the impeach- 
 ment; thofe who cannot, therefore, make up 
 their minds to a judgment, well informed, whe- 
 ther to retire, or proceed. 
 
 * But after all, " we have no conftitution'" that is, we 
 have not a " body of elements, formed by the people before 
 " the government was conflituted, and enabling article by 
 " article what the government mould be ; we have there- 
 " fore a conftitution to make;" that is, \hepeople are to 
 make it, according to the rights of man, which are to have 
 the lion's part in this new body of elements, that are to conlti- 
 
 tute a new government. Another jeu d'efprit of Mr. Paine, 
 
 inviting us to deftroy the government, in order to have a con- 
 Jtitution ! 
 
 3 Ic
 
 t 41 ) 
 
 It is, it muft be, admitted, that in every func- 
 tion of power, exercifed by other courts of juftice, 
 a political demife of the entire court fuperfedes 
 the imperfect proceeding, and requires a new 
 one, even if the record is preferved. This ori- 
 ginates in the idea, that it is not (life to give a 
 right of judgment, when the parties have not 
 been completely heard by the fame court. 
 
 If a caufe in equity is upon the point of a de- 
 cree, and the chancellor who refigns gives up 
 his note into the fucceflbr's hand, it muft be 
 completely re- argued. In criminal proceedings, 
 I fhall not repeat the effect of a difability upon 
 judges, or juries pending the fuit. 
 
 But the analogy of the king's demife, and 
 its fatal effect upon all proceedings at law, be- 
 fore the act of parliament, has never yet .been 
 anfwered. Upon what principle was a culprit, 
 who had been tried upon indittment for high 
 treafon, protected by that fpecies of diffolution, 
 from the effect of all evidence, heard, and re- 
 ceived againft him at the former trial, though 
 he was called upon to anfwer again ? Upon what 
 principle, but that of confidering the court as 
 new to the firft proceeding ? But would a peer, 
 in thofe days, have been tried by a different 
 principle for the fame offence, before the houfe of 
 lords, upon the removal of an indictment follow- 
 ed by the regal demife ? If he would not, I afk, 
 why in the cafe of an impeachment for the fame 
 % G offence, 

 
 ( 42 ) 
 
 offence, and that impeachment followed by a dif- 
 Jolutien of the parliament who try him, unlefs 
 upon topics of political convenience, which cut 
 both ways, and are at leaft no grounds of a ju- 
 dicial refolution ? 
 
 Of ujage, precedents are material, and folid 
 proofs j though I by no means agree to what I 
 heard in the debate, that of courfe the loft refo- 
 ]utk>n was the law. It is not fo in courts of le- 
 gal juftice for though credit is given to it, yet 
 the judges are not bound by it, if it is not law. 
 But, on the other hand, I can as little agree to a 
 moft extraordinary pofition which the fame de- 
 bate, rather fertile in paradox, announced, and 
 with popular effecl; namely, that we are in a 
 cafe of " privilege,' and muft look at no jour- 
 nals but our own. What is meant by the word 
 " privilege," which is never to look before it 
 leaps, and is to affirm judicially, where it has no 
 judicial powers, what a court who has them is to 
 do, or Jay, without confidering what it has done, 
 orjaid ; is above my unprivileged apprehenfion. 
 Indeed, I never heard that a right of impeach- 
 ment, though it certainly is an exclufive ju~ 
 rifdicJion, was " privilege *" a term which 
 
 * The term ftriftly, and originally means " a perfonal ad- 
 " vantage, by a law, which diftinguimes one man from other 
 <c men" The Roman laws of "privilege," are " leges de 
 " privis hominibus latae." Cic.de Leg, It extended itfelf, 
 in a courfe of time, into office, rank, or any other peculiar de- 
 fcriptions of men, but retained its chara&er of being merely a 
 benefit, or gratification; which the right of accujing, by im- 
 peachment, has never been called, as I recdlleft, before this 
 debate. 
 
 I have
 
 ( 43 ) 
 
 I have underftood as applicable rather to the im- 
 munities, and protections of the Commons againft 
 the courfe of Law, or to their claims of honor, 
 than to a right of accufing culprits before the 
 public juftice of the kingdom*. But this, at 
 leaft, is clear j that if Privilege addreffes it- 
 felf to a Court of juftice, and becomes an 
 accufer, it muft be governed by the rules of 
 that Court, not only in the courfe of trial, 
 or in the Judgment of Law, but in adjufting 
 the extent, or boundaries of the jurifdiftion. 
 In telling the Lords, what their Judgment fhould 
 be upon the Earl of Danbfs plea, the Com- 
 mons ufurped upon the rights of that Court, 
 without a fhadow of authority. When they in- 
 terfered with a day appointed for the difcuf- 
 fion of his plea, and menaced his counfel, or 
 friends, if they fhould appear for him in Court 
 upon the argument of his claim, they added in- 
 fult, and oppreffion, to an illegal encroachment. 
 But what is the queftion here ? It is the ufage of 
 Parliament in proceedings upon Impeachment. 
 If this Houfe had once voted a judicial 
 
 * In the eloquent and fpirited Apology to King James thft 
 Firit, which Mr. Petyt has recorded, (Journ. Parl. 227.) the 
 rights of the Commons, in point of privilege, are freedom 
 of election freedom from arreft and freedom of fpeech ; 
 to which may be added, freedom of accefs to the King. 
 
 G 2 propofition
 
 ( 44 ) 
 
 propofition refpedling the duty of the Lords, 
 and their uniform conduct, acquiefced in by 
 the Commons, had been the other way j fhall 
 we open our eyes to the former, and fhut them 
 
 agamft the latter * ? 
 
 Even in 1678, the Commons (after they 
 had ftated the pardon as illegal, in an addrefs 
 to the King upon the firft rumour of it) exa- 
 mined precedents upon the effect of this plea ; 
 and reported, that no inftance could be found 
 of a pardon fo pleaded. Where could that ne- 
 gative teftimony be found, but in the Journals of 
 the Lords ? 
 
 This novel idea, of refuting to look at the 
 Journals of the other Houfe, was not explicitly 
 adopted by the Committee, and the firft autho- 
 rity in the Houfe reafoned upon a variety of 
 precedents taken from that Court j I fhall 
 therefore afiume the right of examining them 
 here. 
 
 I am, SIR, &c. 
 
 * There is a very curious proceeding againft Lord Orrery, 
 upon the 25th Nov. 1669, by which it appears, that the 
 Commons took up, as Judges, an Impeachment in the name 
 of two private accufers, for high treafon, without confulting 
 fhe Lords.
 
 ( 45 ) 
 
 LETTER THE THIRD. 
 
 Qui didick patria quid debeat, et quid amicis, 
 Quid fit Confer 'if it, quid Judids officium, Ule 
 Reddere perfonae fcit convenientia cuique. 
 
 HORACE. 
 
 SIR, 
 
 WHAT then does your argument upon 
 thefe precedents, firfl encounter ? A very, 
 inaufpicious fad, it muft be admitted; for, by 
 the lateft Judgment of the Lords upon the very 
 point itfelf, an Impeachment is terminated by a 
 dijfolution-y and the culprits are fet at liberty. 
 
 The refolution by the Houfe of Peers 1685, 
 is in thefe words : 
 
 " Upon confideration of the cafes of the 
 " Earl of Powysy Lord Arundel of Wardour> 
 " the Lord Bellajyfe, and the Earl of Danby, 
 " contained in their Petitions, after fome debate 
 " this Queflion was propofed Whether the 
 << Order of the i9th of March 1678-9 fhall be 
 
 " reverfed
 
 ( 46 ) 
 
 reverfed and annulled as to Impeachments; 
 " the Queftion being put Whether this Quef- 
 " tion lhall be now put ? It paffed in the af- 
 " firmative ; then the Queftion was put Whe- 
 " ther the Order of the I9th of March 1678-9 
 f( lhall be reverfed and annulled as to Im- 
 " peachments. It was refolved in the affirm- 
 " ative." The Order fo reverfed and annul- 
 led is in thefe words: cc The Houfe taking 
 " into confideration the Report made from 
 " the Lords Committees for Privileges That 
 <c in purfuance of the Order of the iyth inftant, 
 <f to them directed, for confidering whether 
 " Petitions of Appeal, which were prefented 
 " to this Houfe in the laft Parliament, be ftill 
 " in force to be proceeded on, and for conji- 
 f dering the ftate of the Impeachments brought 
 " up from the Houfe of Commons the laft Par* 
 " liamenty and all the incidents relating thereto ; 
 " upon which the Lords Committees were of 
 " opinion, that in * all cafes of Appeals and 
 
 " Writs 
 
 * Is it not remarkable, that, aflcrting all Writs of Error, 
 &V. to continue in the fame ftate, they only aflert the 1m- 
 feacbments brought up in the laft Parliament, fo to continue ? 
 The queftion upon both, was as to Writs of Error and Im- 
 peachments which were in the laft Parliament. But the anfwer 
 is general as to all Writs, and particular as to Impeachments-, for 
 this obvious reafon : Impeachments which had not been pro- 
 ceeded
 
 ( 47 ) 
 
 ct writs of error they continue, and are to be 
 " proceeded on in ftatu quo as they Hood at the 
 " diflblution of the laft parliament, without be- 
 cc ginning <afc novo j and that the dijfolution of the 
 cc laft parliament., doth not alter the ft ate of the 
 <f impeachments brought up by the commons in that 
 " parliament. After fome time fpent in con- 
 " fideration thereof, it is refolved, that this 
 " houfe agrees with the lords committees in 
 " that report." 
 
 Upon the view of thefe two refolutions, it 
 is impoffible, I think, to be denied, that as what 
 they affirm refpecling impeachments cannot be 
 reconciled, it is the later opinion and judgment 
 of this high court tc that a diflblution of par- 
 <c liament does alter the ftate of impeachments 
 " brought up in that parliament." 
 
 It has been faid That a refolution to annul, 
 and reverfe a former, does not of neceflity af- 
 firm any other propofition to be law, but 
 leaves the law to its fate, independent of that 
 refolution j that, for example, the doctrine con- 
 
 ceeded upon, or upon which no witnefles had been examined 
 fell within the reafon which applied itfelf to all writs of 
 error. They were all upon record, and there was nothing 
 more of them. 
 
 G 4 tained
 
 ( 48 ) 
 
 tained in the firft refolution, concerning the 
 Middlefex election, is open, though whatever 
 authority may have been given to the doctrine 
 by that refolution alone, is done away, by the 
 Jccond. 
 
 This way of reafoning may, in fome cafes 
 have its weight, but it has none upon queftions 
 like thefe, of a judicial nature ; for in thefe, if 
 the court gives a judgment, and acts upon it 
 at one period, but reverfes it afterwards, and 
 acts upon the reverfal, it affirms, in effect, 
 the judgment which it reverfes, to be erroneous. 
 Here too fome of the very peers, at whom the 
 former judgment was levelled, are faved from it 
 by the court, in this later judgment, as in the 
 nature of an appellant jurifdiction. 
 
 It is true, the petition of thofe peers had 
 ftated no ground for difcharge, as refulting from 
 the effect of the diffolutiw, but had fuggefled 
 other circumftances. The catholic peers, their 
 innocence, and the convicted perjury of Oates 
 The Earl of Danby, relying upon the length 
 of his imprifonment, (before he was bailed the 
 i2tb of Feb. 1683-4,) and upon the want of 
 oath or affidavit againft him at the time of his 
 firft commitment. 
 
 5 But
 
 ( 49 ) 
 
 But the Lords, finding this Order of 1678 
 in the way, took up the confideration of it j and 
 by rsverfmg it, they, in fubftance, declared the 
 Law to be thai: by a diffolution of Parliament, 
 the right of the Commons upon Impeachments, 
 which that Parliament had begun, was at an end 
 in the next. 
 
 This reverfal having taken away the Controul 
 of the Impeachment over the Catholic Peers, 
 they were left upon the Indictment which had 
 been removed, by Certiorari, into the Houfe of 
 Peers, as pending the Impeachment, it could 
 not proceed at law, and the Lords had a con- 
 troul over itj but a nolle profequi having 
 been obtained, the bail taken upon thofe In- 
 dictments was difcharged upon the 2fth May 
 1685: Upon the frft of June following, the 
 bail for appearance of all the Peers who had 
 been impeached, (the Earl of Danby included,) 
 and thePeers themfelves, were difcharged; fo that 
 here, at one blow, was ended every idea of con- 
 troul in the Houfe of Commons over an Im- 
 peachment, after a diffolution -, it was ended 
 by a Judgment of the Lords; and by an aft 
 in confequence of that Judgment, a releafe of 
 the culprits. Burnet fays, " The Houfe of 
 " Commons dropt the Impeachment, and tbere- 
 " fore the Lords were difcharged." If that 
 H were
 
 *ere true, it would give additional force tcr the 
 Order of reverfal, as not being neceflary for 
 thefe Lords, but as being neceffary, in itfelf, to 
 form & general rule j (at lead a fimilar argument 
 was ufed in fupport of the Order 1678 j namely, 
 that it could make no difference to Lord Stafford 
 or the Earl of Danby, as new Impeachments 
 would certainly have been framed againft them;) 
 but I can fee no trace of the fact which Ettrnet 
 intimates, upon the Journals of Parliament. 
 
 In that view, and if no other precedents ap- 
 peared, it would feem to be, at the beft, very 
 improvident, that we Ihould affirm a judicial 
 duty of the Lords, irreconcilable not only to 
 this lateft Judgment of their CoUrt, but alfo to 
 the aft which had followed upon it ; though we 
 fhould give the name of "privilege' to our in- 
 terference. 
 
 It has been preffed againft the Order of 1685, 
 that it has retained the legal, and reverfed the 
 conftitutional, part of the Order 1678, by re- 
 verfing what relates to Impeachments, alone. 
 
 But if the effect of other judicial proceedings 
 can be diftinguilhed from the effect of an I mpeach- 
 ment, in clear authority, and found reafoning, 
 the diftinction gives credit even to the difcrimi- 
 
 nating
 
 nating part of the Order 1685. That fuch a 
 diftindtion between them does prevail, will be 
 marked in the fequel. 
 
 Be this however as it may, there are two 
 grounds, upon which the later judgment would 
 become the law of the Peers, in their judicial 
 character, and of the kingdom. 
 
 The Jirft is, that for the Order of 1678, as 
 built upon the fuppofed analogy to that of 1673, 
 there was no colour of law. 
 
 Thefecond, that after 1685, and after the Re- 
 volution^ credit was given by the Houfe of Peers, 
 upon difpafiionate examination, and a judicial 
 review, to the Judgment of 1685,-*- the Com- 
 mons acquiefcing, and therefore tacitly approv- 
 ing that credit. This too will appear in the 
 fequel. 
 
 But firft it may be thought material, to con- 
 fider the hiftorical, or political features of the 
 age, in which the Order of 1685 ifFued, and 
 which have been extremely mifunderftood. I 
 am, 
 
 S I fc, 
 
 With refpeft, &c. 
 
 II 2
 
 BETTER THE FOURTH. 
 
 Jiaud ilia viros vigilantia fugit. 
 
 JUVENAL. 
 
 SIR, 
 
 IT has been truly faid that all thefe Peers, 
 except the Earl of Danby, were Catholic, 
 and of the King's religion, who had a powerful 
 influence over both Houfes. 
 
 The two difienting Lords, however, in their 
 Proteft, threw another imputation upon theOrder 
 of 1685, which is, that extra-judicially, and 
 without a particular caufe, it endeavours to alter 
 a judicial rule, made and renewed after long de- 
 bate, Report of Committees, Precedents, and 
 former Rejolutions without permitting the Jam? 
 to be read. 
 
 The firft of thefe imputations (which unquef- 
 
 tionably is falfe in the fact) accufes the Lords 
 
 of "partiality for the Catholic Peers ; and the 
 
 fecond, as far as credit may be given to it, ac- 
 
 4 cufes
 
 ( 53 ) 
 
 cufes them of -precipitation ; in which offence 
 the two Orders may fhake hands together. 
 
 But (it muft be remembered) the King, ty- 
 rant, and bigot as he was, had not offended the 
 Commons at this period, by meafures of par- 
 ticular alarm to the eftablifhed religion * j and 
 that the Commons were extremely vigilant in 
 their general fufpicions. The Duke of Mon- 
 wouthy indeed, called it a " pack'd Parliament ;" 
 and Mr. Hume fays, " it was formed of Tories, 
 <c or High-churchmen :" It certainly had been 
 thrown very much into the hands of the Court, 
 by the furrender of the Corporations, in the laft 
 reign, and by the odium of the Rye-houfe plot, 
 which had made the Whigs extremely unpopular. 
 But there is internal evidence that men of pub- 
 lic fpirit exerted themfelves with laudable jea- 
 loufy even in this firft year of James the Second's 
 reign. I mentioned in' the debate, that Ser- 
 
 * We know, indeed, from Sir John Dalrymplis Memoirs, 
 that before he called his firft Parliament, he negotiated fbr 
 money with Lewis XIV. and marked, in a converfation with 
 Barillon, his determined zeal for Popery. But it appears in 
 the fame papers, that, in Auguft 1685, the King told him of 
 the alarm he felt upon account of the jealoufies againft him 
 in Parliament. I am aware that fome doubts have been 
 thrown upon the veracity of this writer ; but I wifh that 
 every hiftorian Hood upon fuch a rock : He refers to original 
 manufcripts in a pullic repofitory, to which ethers can obtain 
 accefs. His work has been long publilhed, and has never 
 been anfwered. 
 
 jeant
 
 ( 54 ) 
 
 jeant Maynard^, who affifled afterwards in form- 
 ing the Revolution, who was then adverfe to the 
 Court, and who had been one .of the Ma- 
 nagers in fuppbrt of the Order in 1678 againft 
 Lord Stafford) was in that very Houfe of Com- 
 mons. We have the note of a Ihort fpeech de- 
 livered by him in this year, 1685, againft a fup- 
 ply : I will copy the words, to mark in what 
 fpirit that great lawyer, and flatefman, then acted. 
 <c There is already a Law, that no man (hall 
 <c rife againft the King: Lords and Deputy 
 " Lieutenants have power to difarm the dif- 
 " affected. If you give thus a Jupply, it is for 
 *< the army ; and then may not this army be made 
 " of thofe who will not take the Te/1 .? Which 
 < aft is not defigned as a punifhment for the 
 " Papifts, but as protection for ourfelves and 
 " giving this money is for an army. I am 
 <f againft it" Burnet fays, that Serjeant May- 
 nardy about the fame time, was the chief 
 opponent of an act, which made words High 
 Treafon j and fpoke with much impreffion, as 
 well as gravity, againft this favorite meafure of 
 the Court : it is inconceivable, that with all thofe 
 
 f This extraordinary and fuperior man told King Wil- 
 liam, at the Revolution, that he ftiould have furvived, if 
 it had not been forbimtke'Lanu iffe/f; and then, being 
 towards ninety years of age, had the great Seal put into his 
 hand, as the firft Commiflioner. His capacity and learning 
 were of the firft rank, and would have done honour to any age. 
 
 jealoufies
 
 jealoufies of the King's partiality for the Catholic 
 intercft, with his memory, too, of this Order in 
 1678, and of the advantage it gave to bim againft 
 a Catholic victim, he fhould have feen the Lords 
 reverfe the Ofder in favor of Catholic Peers, 
 without one complaint, unlefs he had conceived 
 the Order to be illegal, even againft thofe who 
 were the immediate, and, at leaft, nominally, the 
 fole objects of it. 
 
 But I muft beg to infift, that in thofe times, 
 and in this very Parliament, were fome good, 
 and found Proteftants. The refolution they 
 had formed, was to admit of no alteration that 
 would enable a Catholic to enjoy place, or pre- 
 ferment, of any kind, under the Government. 
 
 The King had avowed himfelf a Catholic, had 
 gone openly to mafs, and had put Catholics into 
 his army in Ireland. We fhall fee what an op- 
 pofition it produced. Oates, however, had been 
 convicted of perjury, and his conviction ((landing 
 upon evidence unimpeached) had the effect of 
 difcrediting the rumour as to the Popifh Plot, 
 upon which Lord Stafford had loft his life, the 
 victim of that perjured mifcreant. This Peer's 
 execution is more a part of the Order in 1678, 
 than has been generally underflood, as I fhall 
 prove hereafter ; but even after that conviction 
 of perjury, fo averfe were the JVbigs to the dif- 
 credit of a popular, and (as they conceived) a fa- 
 
 lutaxy
 
 lutary fiction, that fome of the Lords proteftecl 
 againft the reverfal of Stafford's attainder, and 
 the Commons would not pafs the Bill ; infifting, 
 that it was a legal, andjujl attainder. This I men- 
 tion as another trait of their jealoufy againft the 
 Catholic prejudices of their King *. 
 
 Yet his find addrefs to the Parliament, of- 
 fered, in very folemn terms, to guarantee their 
 property, and religion. The necefiity of that 
 fraud indicates that he was in fome fear of this 
 very Parliament, for elfe he would have fpoke out* 
 
 But a circumftance arofe, which is decifive to 
 fhow a jealoufy of the King, and a public fpirit 
 in many of the Commons. A full Committee 
 of religion fat, and pafled a vote, nemine contra- 
 dicentey upon the 27 th May 1685, for the de- 
 fence of the reformed religion of the Church of 
 England ; and for an addrefs to have the Laws 
 put in execution againft ALL Difienters WHAT- 
 SOEVER. The argument in the Houfe againft 
 this refolution was plaufible enough, and pre- 
 vailed; but the addrefs, voted afterwards, was 
 not fervile, for though it exprefied a reliance 
 
 * Dalrymple, in his Memoirs, gives the matter-key to this 
 dilemma in politics. " Reparation could not be made with- 
 out throwing difgrace upon four fucceeding Parliaments 
 " upon the whole party of the Whigs and upon many of 
 " the Tories; nor could popifh vi&ories, with fafety, be al- 
 " lowed in a popifh reign.'* . 
 
 upon
 
 upon the King's word, it marked the eftablijhed 
 religion, as dearer to them than their lives 
 words (as Burnet, and Hume fay of them) very 
 unacceptable to the King. 
 
 The next event was Mcnmoutb's Rebellion, 
 in which the Parliament were not more loyal, 
 than it became good fubjefts to be. 
 
 Jeffreys indeed, at this time, became a per- 
 fonal favorite of James, and gave difguft by his 
 licentious conduct, as well as cruelty in judi- 
 cature. 
 
 In the month of Nov. 1685, the Commons 
 put an affront upon the King, almoft unex- 
 ampled, by adjourning the confideration of his 
 Speech from the 9th to the i3th. In that Speech 
 he had offered an apology for the Catholic 
 officers ; and had folicited a perpetual aid. 
 When the day arrived, the Commons voted a 
 fupply for frejent occafwns -, but would neither 
 fpecify the amount, nor the ufe to which it was def- 
 tined. Upon this, a long debate had arifen, 
 and the numbers were 250 againft 125 in favor 
 of the Whigs. The very fame day they divided 
 upon the moft conftitutional of all Queftions 
 whether to poflpone the/#p^>/y, or grievances , - 
 and it was carried (though by a fingle vote) that 
 I they
 
 ( 5* ) 
 
 they fhould firft confider the popijb officer f in the 
 finny. It was then voted" That this reception 
 lc of popifh officers into the army was againft 
 c Law to addrefs* the King for their inftant 
 " removal, and a Bill for their indemnity, as to 
 " the time paft." Upon the Queftion refpec"l- 
 ing the amount of fupply, Nov. 16, 1685, the 
 Court was out- voted, and j- 700,000 /. fubftituted 
 for 1 200,000 /. 
 
 Upon the debate reflecting the concurrence 
 of the Lords to the addrefs againft the popifh 
 officers, the Court prevailed the King was, 
 however, piqued^ ufed peevifh language, but 
 ftill dwelt upon his promifes. At a later period 
 the Commons unanimoufly voted an addrefs 
 to him the Lords took up the fame topic of 
 the popifh officers the King was prefent, and 
 very much hurt at their freedom. 
 
 Fox, then paymafter of the army (and the 
 lineal anceftor of your friend, who will make 
 that name immortal), was turned out of his 
 employment, for his vote againft the Court ; and 
 the Bijhcp of London was removed from the 
 
 * The Addrefs is decent and fmooth ; but more was 
 meant "by the words than what ftriftly they exprefled. 
 
 f This was loft by his continued prorogations, before it 
 had been fettled. 
 
 Council
 
 ( 59 ) 
 
 Council Board : (We have beard of fuch mea- 
 fures in later times.) In the debate againft the 
 repeal of the Teft, upon which the Bifhop had 
 given offence, 'Jeffreys the Chancellor, who had 
 infilled, that general compliments in the addrefs 
 had precluded oppofition to the meafures of Go- 
 vernment, was overborne by the Peers, and 
 proved himfelf a coward*. (Cruelty, and cow- 
 ardice always go together.) Upon this debate, 
 the Earl of Revon/hire had faid, with a very 
 high-fpirited farcafm " That he was for giving 
 " thanks, becaufe the King had fpoke out fo 
 c plainly, and warned them of what they might 
 look for f." 
 
 A little after this time, Lord Delamsre was 
 acquitted by the Lords, partial as they were, (for 
 it was even a partial fummons,) without one dif- 
 fenting voice though Jeffreys, a perfonal enemy 
 of the culprit, was the High Steward though 
 it was a favorite profecution of the King and 
 though Finch, the King's confidential advocate, 
 (confirmed in it by Jeffreys) aflerted, that one 
 
 * It was a new fpeftacle, to fee Bifhops oppofing the 
 King's will, and Jeffreys making apologies. Dalrymple. 
 
 \ He had been very keen againft the Earl of Danby, in 
 the Houfe of Commons, but he never complains of the Order 
 1685 : 'he was prefent when it palled, without a divifion ; 
 An$l was not one of the diffenting Peers, who protefted. 
 
 J % winners.
 
 witnefs, with preemptions, would convidl of 
 High Treafon*. 
 
 I have thrown thefe paflages together, in 
 order to mark, that whatever general defcription 
 may have been given of this period, it was by 
 no means without energy, and public virtue. 
 
 It was in a part of this period it was after 
 the popifh officers were put into the army that 
 the Order of reverfal (1685) took place, which 
 took away the " Palladium'' (as it is now called) 
 of the Englifh Conflitution. And I again afk, 
 what lethargy pofTeffed thofe who were alive to 
 other jealoufies, that, aware as they muft have 
 been of the effect which the Order of 1678 pro- 
 duced, in cherifhing that popular fable of the 
 Popifh Plot (which they refufe to difcredit by 
 reverfing Stafford's attainder) aware of the im- 
 mediate benefit refulting from this Order of re- 
 verfal to the Catholic intereft in the perfon of 
 thofe Peers they utter no complaint againft the 
 Houfe of Lords for this aft, and, by their fi- 
 lence, brand the Order of 1678 themfelves ? 
 Nor can I top often imprefs upon the public 
 
 * We have the King's remark upon this, in one of his 
 private Letters " He had good luck, and juft Judges." 
 JJut Lord Dclamere was made his bittereft enemy by this tria^. 
 Clar. Diary. 
 
 attention
 
 attention fo curious a fact, as the attendance, and 
 popular exertions of that very Serjeant Maynard, 
 and in this very Houfe of Commons, who had 
 faid againft Lord Stafford " That what has 
 " been once upon Record in Parliament, may 
 <c afterwards be proceeded upon ; and that if 
 " there was no precedent, he hoped the Lords 
 '" would make one." 
 
 I am, 
 
 S IR, 
 
 With great refpecl, &c.
 
 LETTER THE FIFTH. 
 
 Atque fatas, alio vidi hunc traducere, mefTes. 
 
 VIRGIL. 
 
 S I R, 
 
 TH E Order of 1678 has been ftated thus - 
 '* It was founded upon a juft, and liberal 
 ct affinity of principle between Writs of Error, 
 tc and Impeachments between Prorogations, 
 " and the DifTolution of a Parliament. The 
 " particular cafe had not arifen till 1678, but 
 " the Law of the Peers and Commons then 
 <e united, was declaratory of antient principles 
 " marked in the refolution of 16735 and flood 
 <e upon the obvious line of difference between 
 t{ every legiflative, and every judicial proceeding, 
 " It matured the feeds of a powerful, but con- 
 " cealed analogy in the Order of 167.3*. It 
 " gave to appeals and impeachments a firm con- 
 " neftion, by calling them judicial; and prompt- 
 " ed this younger plant, the impeachment, (with 
 " all its indiflbluble energies,) to form as deep, 
 
 * ** Que? max ccelo properandaferinn 
 
 Maturere datur" 
 
 " and
 
 ( 63 ) 
 
 <c and as tenacious a root as the other. The 
 " union of both houfes too, .gives more weight, 
 " and fanction to the order, becaufe, at this very 
 " time, they were differing upon many other 
 " conftitutional topics. The refolution was en- 
 " forced againfl the Earl of Danby, who was 
 <f in the tower five years, and folicited, in vain, 
 " the courts of law j till Jeffreys came, who had 
 " the courage to bail him. It was enforced by 
 " the folemn trial of a peer, and his execution. 
 " Thefe were times of popular jealoufy, and fer- 
 <c mentj but from the violence of this party - 
 " rage, upon very honourable, though miftaken 
 " jealoufies, we can trace the liberty that we now 
 " enjoy. Mr. Juftice Blackftone has marked 
 " the year 1679 for the beft in the annals of the 
 " conftitution. An abufe of this power, in the 
 " cafe of Lord Stafford, is no proof againft the 
 " legal, and conftitutional validity of the power, 
 " itfelf. The Earl of Danby had no connection 
 " with Staffer d y or the other popifh lords. The 
 cf king juftified him, adding terms of the mofl 
 " offenfive infult, and illegally pardoned him. 
 * c The lords attempted a compromife the 
 " commons were firm -, they rejected the par- 
 " don they turned with fcorn from the com- 
 " promife they perfevered againft the culprit, 
 " and carried their point, by making the lords 
 " firft give an order for his impeachment, and 
 " then pafs a bill for his attainder, if he ftiould 
 14 " not
 
 ( 64 ) 
 
 " not appear upon a certain day." To every 
 part of this ingenious, and popular ftatement I 
 fhall give an anfwer. 
 
 Thefirft, and main ftrength of it, is that/>r;- 
 cipltt as it is called, which the refolution, or 
 judgment of the lords in 1673 had pointed out; 
 and which, though pointed fpecifically at writs 
 of error and appeals, (continuing from one fef- 
 fion to the next,) extended itfelf to the doctrine 
 of continuing impeachments, in whatever ftagc 
 of the evidence they were left *, and continuing 
 after a diffolution* 
 
 When the unexampled, and irrefiftible elo- 
 quence, to which I have more than once alluded, 
 was difplayed upon the general policy of conti- 
 nuing the impeachment, I was loft in admiration 
 of fuch talents, and public fpirit \ but when I 
 faw that fame eloquence condefcending to pick 
 up the order of 1673, as an auxiliary fupport 
 of the right which he aflerted, I thought the 
 materials unworthy of the ufe to which they were 
 applied; and very inferior to the artificer. The me- 
 taphor of t\\ejeed> which he took from the bigheft 
 
 * The refolution of 1678, aflerted, nothing of impeach- 
 ments in general: It aflerted in fubftance only this : " the 
 (f impeachments of the loft parliament, upon which no evidence 
 f( have been taken, itand upon the fame footing as all writs 
 " of error y which require no evidence to fupport them, but ex- 
 f* ciufively depend upon the record.'* 
 
 authority
 
 njttbe'rity in the Houfe, and from the moil re- 
 fpectable of men, reminded me of that miracle 
 which I have placed at the head of this Letter; 
 and which, to do hirrrjuftice, the Poet reprefents 
 to have been a work of enchantment. 
 
 In the firft place, it was truly, and power- 
 fully obferved, that amongfl the obfoiete pre- 
 cedents, to which that refolution has referred, not 
 one impeachment is to be found, though num- 
 berlefs impeachments were then upon the Jour- 
 nals of Parliament ; and though fome of them, 
 at lead, had not proceeded in faft y as I had 
 the honour of proving to the Committee by two 
 precedents, to which no anfwer was given j one 
 of them in 1624, the other in 1660. The 
 effect of them I fliall not again defcribe in this 
 branch of the argument if at all. 
 
 But what is profeffed by the Peers in the en- 
 quiry which they inftituted 1673 ? A defire to 
 know upon a view of precedents, " whether after 
 " an intervening prorogation, Writs of error 
 " and appeals could proceed/' The words are 
 
 thefe : " nth March 1672-3 Ordered, 
 
 " That it be referred, &c. to confider whether 
 <c an appeal unto this Houfe, either by writ of 
 " error, or by petition, from the proceedings of 
 '* any other Court being depending, arid not 
 " determined in one feflion of Parliament, con- 
 K " tinue
 
 C 66 J 
 
 " tinue inflate quo unto the next feflion of Par- 
 liament, without renewing the writ of error, or 
 " petition j and report their opinion unto the 
 Houfe." 
 
 The anfwer given to this clear and fimple 
 queftion, begins (to apologize, I imagine, for 
 the various precedents to which it refers, and 
 which have no application to writs of error, 
 and appeals) by mifreprefenting, and widening 
 the queftion referred j which the Lords Com- 
 mittees defcribe as having extended itfelf, in 
 tuords, to " any other bufinefs wherein their Lord- 
 " fhips act as a Court of Judicature " and they 
 fubjoin to the words " without renewing the 
 " writ of error and petition" the words follow- 
 ing " or beginning all anew, 11 as if they had 
 flood part of the origi nal queftion. 
 
 Then, after dating the various precedents, they 
 report thus : " Upon the confideration of thofe 
 " precedents," and of feveral others mentioned 
 " at the Committee (but which never appearing, 
 are as if they never exifted), they declare it as 
 their opinion, " that bttfine/es" (here they drop 
 the words as a Court of Judicature) " depend- 
 " ing in one Parliament, have been continued to 
 " the next Seffion of the SAME PARLIAMENT j" 
 (words of no trivial emphafis!)j " and that 
 proceedings thereupon have remained in the 
 
 '' fame
 
 ( 67 ) 
 
 vc fame ftate in which they were left." I have 
 examined, carefully, all thefe precedents, to 
 which the order of 1673 has referred ; and when 
 I reflect upon the ufe that has been made of 
 them, as proving that impeachments after a dif- 
 folution of parliament, even where evidence has 
 in part been heard, can be taken up, from the 
 point, at which they left off, in the next parlia- 
 ment, I have no power of language to exprefs 
 my aftonifhment ! 
 
 There is one general remark, which pervade* 
 the whole firing of them, and it is, that in all of 
 them the continuance is by order, Jpedally direft- 
 ingit; which not only does not prove continuance, 
 to be of courfe but proves the dired reverfe. 
 
 It feems to have been the regular habit, in 
 writs of error, upon the firft complaint, that a 
 jrire facias * iffued, returnable the next parlia- 
 ment f. This is properly no adjournment -, it is 
 
 rather 
 
 * What is this but faying " We fliall take it up, the next 
 Kt parliament?" for they could not iflue the fdre facias. 
 *rhe party mufl go to the proper court for that v, rit ; and he 
 could not take it out till the day of meeting at the next par- 
 liament was fixed) for it muft have a return certain. Is it 
 not then faying, " bring the defendant in error to us the 
 '* next parliament, by due procefs, and we fhall begin what 
 *' he defires of us, then?''* 
 
 f It is almoft a diftinftion without a difference, between 
 the " next parliament," in very ancient periods, or the " next 
 '* f e Jfi CK >" f a modern parliament, in point of delay ; par- 
 liaments were then very fhort, and very often held. But, 
 on the other hand (fays Lord Hale), " the fejfions were then 
 *' fo fliort, and fo uncertain, that a new feffion might end 
 
 " before the day affigned for the return of the writ." 
 
 t K 2 Thefe
 
 ( 68 ) 
 
 rather a notice when proceedings will be com- 
 menced. But in fome few of the cafes, it is 
 true, that an adjournment is ordered. For ex- 
 ample, i R. i. N 28. day was given to both 
 parties till next parliament , with all advantages, 
 and the matter to ft and as now it doth. In one 
 of thefe precedents \.\\tjcire facias being returned 
 by a tarde venit, another Jclre facias iffued re- 
 turnable the next parliament; fb that 3>fcire fa- 
 cias, or the firft act of procefs, always gave this 
 interval, to the next parliament. Many other 
 precedents, quoted by Lord Hale, mark the fame 
 idea j indeed, he adds, that a Jcire facias in thole 
 cafes did not, in fact, ifiue till the next parliament. 
 
 Of precedents, applicable directly to writs of 
 error, there are only eight between the firft of Ri- 
 chard II. and the third of Henry 7. j of thefe 
 eight, there is only one, in which proceedings have 
 been bad upon the return to ajicire facias, and aday 
 then given to both parties till thz next parliament. 
 
 It further appears, that upon the 21 ft of 
 James, in a writ of error againft a judgment 
 from Ireland, a. fcire facias iffued, returnable the 
 of parliaments and upon the fame day 
 
 Thefe differences afford a very natural reafon, why the lords 
 committees in 1673 (though moft of their precedents apply, 
 as far as they go, to a new parliament) confine the report em- 
 phatically to a " new feffion of the fame parliament." " In 
 " the reign of Charles I. (according to Lord Hale) the return 
 " begun to be changed; and was uniformly "in prtefens 
 " parliamentum." 
 
 in
 
 in which that order ifiued, Lord Bridgwater (it 
 leems) reported from the committee for peti- 
 tions (thofe of appealj I take it for granted), that 
 they fhould be retained in jlatu quo, until the 
 ncxtjeffion of parliament. 
 
 Eight other precedents relate entirely to an 
 original judicature in the houfe of peers 3 and 
 one of them, fo late as the year 1671, is a com- 
 plaint by a wife againft her bujband who is no 
 peer -for ill ujage ; when the further debate is 
 adjourned to the firfl Tnefday of the nextjeffion. 
 Five of thcfe eight are as far back as the time of 
 Edward I. In one of them, the king of Scotland 
 perceiving judgment likely to go againft him, 
 defired refpite till the next parliament. 
 
 All the remaining precedents are two> and 
 they alone are precedents of criminal accujaticn ; 
 but neither of them, impeachments, or any thing 
 like them. They were both in the time of Ed- 
 ward the Third: One, the cafe of an arch- 
 bifliop, who was arraigned at his own defire, be- 
 fore the peers j upon which arraignment, certain 
 peers were to hear his anfwer, and the effect of it 
 was to be debated in the next parliament. 
 
 In the other, a culprit having been accufed 
 in the former parliament (but it is not flated, by 
 whom,) of extortion a commiffion is given to 
 one peer, and the chief juftice, to examine the 
 bufmefs, and they report that by eight inquefts 
 he had been found guiltlefs. 
 
 t K j All
 
 ( 70 ) 
 
 All thefe precedents are introduced by a refer- 
 ence to a writer vvhofe name is Crompton, for the 
 form of &Jcire facias returnable the next -parlia- 
 ment; fo that evidently they are intended as pre- 
 cedents applicable to writs of error> and appeals, 
 alone. 
 
 " But, in the ar.fwer of 1673, it is evident, 
 " that by the words <s other bufinej]fes" the 
 tc lords' committees mean to determine, the 
 " continuance of impeachments from feffion to 
 " feffion, and that, in parity of reafoning, they 
 * c mud proceed after a diffolution, in the next 
 < parliament" 
 
 I beg leave to deny, and fhall endeavour to 
 refute, this "parity of reafoning-" but if it fhould 
 even be juft, what could be more furreptitious, 
 and irregular, than the conduct of the lords' com- 
 mittees in 1670 ? (and which is, at leaft, evidence 
 in fome degree, of their fufpicion that they had 
 no ground for the report of their judgment, as 
 built upon that of 1673.) They report in one 
 day* they never .produce the order of 1673 
 (which they call a "judgment"), or any one pre- 
 cedent contained in it ; and would yet imprefs 
 upon the lords, by the nature of their general re- 
 ference to it, that it was an adjudication of the 
 very pcinf at iiTue ; namely, in other words, that 
 it adjudged cc writs of error, and appeals, to con- 
 " tinue in ftatu quo, after a diffolution" 
 
 * The reference of i ith March 1678, points only at ap- 
 peals, and is a reference to opinion ; i~th March > a new refer- 
 ence is made as to the mere iiate of the impeachments tyought 
 up iu the Jail parliament, which is a reference tofatf.
 
 If the opinion which they communicate offi*- 
 cioufly as to the Law of impeachments, though 
 it is not referred exprefsly, even by them, to that 
 Judgment in 1673, muft be taken to have been 
 comprized within the effect of it*, furely it 
 became them to lay the Judgment itfelf be- 
 fore the Houfe, in order to have that point a 
 little better underftood. 
 
 In truth, nothing is more certain, than, frft, 
 that by the Judgment in 1673 a new Law was 
 made refpecting writs of error, and appeals, 
 after a. general prorogation. Secondly, that after 
 
 * " Their Lordfhips, upon perufal f the Judgment of 
 * this Houfe of the zpth March 1673, are of opinion, That 
 * in all cafes of appeal and writs of error they continue, 
 " and are to be proceeded on in Jl&tu quo, as they flood at 
 " the diflblution of the laft Parliament, without beginning 
 *' de KOVO. The Judgment and proceedings being large, 
 " are omitted to be repeated, the Journal of this Houfe 
 ** being ready wherein that Judgment is entered. 
 
 " And upon confideration had of the matter, concerning 
 " the ftate of the impeachments brought up from the Houfe 
 '* of Commons the laft Parliament, and all the incidents 
 " relating thereto, their Lordfhips find, that the five Lords 
 " who are in the Tower, are upon general impeachment ; 
 " and the other Lord is impeached with fpecial matter 
 " affigned. 
 
 " And their Lordfliips arc of opinion, That the diflblution, 
 " of the laft Parliament, doth not alter the ftate of the Im- 
 ff peachments brought up ly the Commons in that 'Parliament. ' ' 
 
 zdif-
 
 a diJTolution, they were ft ill confidered as deter- 
 mined, and abated, without an idea that, by 
 this Judgment of 1673, the Lords had affected 
 that queftion. 
 
 For this I take the word of Lord Hale *, in 
 two Manufcript works evidently written before 
 1678 and after 1673. They are works of me- 
 thod, and fyftem, intended for pofterity, and 
 written by the mod enlightened fcholar in his 
 profefllon. A more difcriminating head in the 
 arrangement, and application, of fcience never 
 bleft the world. 
 
 :'* 
 
 He could have no bias in what he wrote, 
 and it is written without reference to the analo- 
 gy between Writs of Error, and Impeach men ts, 
 which analogy had never ftruck him as refulting 
 from the Judgment of 1673. 
 
 * In i Ventris, 31 Eafter-Term 1669, it was held, That 
 a Writ of'Error returnable the next Parliament, was not good ; 
 and that no fuperfedeas even to a certain day, if remote, could 
 ever tie up the Courts below. It is curious, and very inter- 
 efting, to fee the uniformity of this great man's opinion 
 upon the fubject before us. Anonym. I Ventris , 267. He 
 (ays, in his judicial character " It has been taken, that a 
 " prorogation determined a caufe in Parliament;" but the 
 Lords have lately determined otherwifs. The date of this 
 Report is 1674. 
 
 13 His
 
 ( 73 ) 
 
 His propofitions are in fubftance thefe: "that 
 <c before 1673, writs of error, unlefs continued 
 * c by^mW prorogation of thole writs, abated at 
 " common law, in the enfuing/$?<7#;" and he 
 denies the legality of a fuperfedea s upon a writ of 
 error when there is no parliament, or of afuper- 
 fedeas directed by the lords, pending a writ of 
 error " //// the next parliament, becaufe (he 
 " fays) there is no certain time when parliament 
 * e fhall be fummoned, pojfibly not in Jeven years; 
 " and the/uperfedeaSj if indefinite, would be an 
 " intolerable delay to juftice : that he had 
 " known it fo determined by the lords in his 
 (( prefence, when Eridgman was keeper " which 
 muft have been between 31 Aug. 1667, and 
 the i7th of Nov. 1671: that lately it had 
 been refolved by .the lords, upon the view of pre- 
 cedents, (alluding evidently to the order 1673, 
 when he was chief juftice,) " to confider the writ 
 " of error, after a general prorogation, as in 
 " force." Many of thofe precedents he quotes 
 himfelf, though for other purpofes; and he adds 
 others of a fimilar import] " that after a diflb- 
 tf lution of parliament, writs of error, and appeals, 
 " completely abate * j that no remittitur of the 
 
 * This was lanu before 1673, as well as after it. In Detbie 
 and Bra<iburn Sir T. Raym. p. 5. Hilary term 1660, it 
 was the very point adjudged. As a general propofiti . is 
 Jaken for granted. 
 
 J L <f record
 
 ( 74 ) 
 
 " record is neceffary, but the fuggeftion is 
 <f enough in the court below i that he has 
 ". known it often fo ruled." 
 
 I rely more upoq this dire ft affertion of fo able, 
 fo correct, and fo honeft a judge, for the law, 
 and the/## which he affirms, than upon all the 
 numerous reporters to the fame effect j efpeci- 
 ally as they are in general confufed, and as the 
 hiftorical parts of them, upon this topic, are too 
 often either inaccurate or mifunderftood. 
 
 There is not ONE inftance the other way. 
 
 What pretence, therefore, could exift in law, 
 to act upon the writ of error and appeal, (at 
 any one moment before* the order of 1678,) 
 after a dijfolutlon of parliament ? 
 
 But it may be faid " how can prorogation. 
 " be diftinguilhed from diffolution, in its effect 
 " upon writs of error, and appeals ?" 
 
 * The two long arguments which are given to the Ear! of 
 Danby, are fo full of error in fatt, that it is impoflible he 
 could have delivered, or publifhed them, as we find them. 
 
 He fays, for example, " that Lord Hale refilled the order 
 " of 1678, upon the bench ;" and even tells us what he faid 
 in defiance of it; though Lord Hale had been dead more 
 than two years, when the order was made. He died upon 
 the 25th of December 1676. 
 
 The
 
 ( 75 ) 
 
 The anfwer may be .defcribed as technical, 
 but it has its root in the conftitution. It is, 
 that when the lords and commons are diffohed, 
 the court of judicature exercifed by the lords, 
 is terminated, and the revival of parliament 
 forms a new court of the lords in parliament; 
 nor can any one reafon of principle be afiigned 
 for difabling the lords to continue their pro- 
 ceedings on a bill, which does not apply to them 
 in judicature. It is true, that as to the com- 
 mons, they may be different men by the new 
 return, but the lords are the fame, except the 
 fixteen elected peers j and except as to new 
 peers, who may at any time be called up to the 
 houfe. It is no lefs true, that in prorogations, 
 the fuit may be equally retarded ; but the delay 
 of prorogation is never indefinite upon the face 
 Df it, as it names a day for the next meeting. 
 Lndeed, I take it, the indefinite period of this 
 interval, between one parliament and the next, 
 vas a forcible ingredient in the policy of that 
 aw, which abated every thing judicial by a dif- 
 r olution. Lord Hate's reafoning is always forcible 
 jpon this topic, and he gives many illuftrations 
 :>f it * : When the houfe of lords iilue a writ 
 
 * It is ruled by Lord Hale, in his judgment 1673, Cojlen 
 nd Sedgewicke-~ That if the writ is tefted at the laft proro- 
 ;ation, returnable at a day certain, and a term does not inter- 
 ene, it fuperfedes execution ; but econtra, if a term in- 
 ervencs.
 
 ( 76 ) 
 
 of execution upon the original judgment, they 
 do not make it returnable in the next parlia- 
 ment, but returnable in chancery, or in the court 
 from which the appeal or the writ of error iflued, 
 for prevention of delay. It is now eftablifhed law 
 (with a view to the fame policy of preventing 
 delay), that if, between the tefte and the return, 
 of a writ of error, a term intervenes, execution 
 proceeds. 
 
 In fhort, this guard againft the delay, is one 
 great feature, (and furely it. is a liberal one,) 
 that protects even a party in a civil action, who, 
 by the judgment of an inferior court> has ob- 
 tained a right. 
 
 But another analogy has been aflumed, which 
 is between errors, or appeals, and impeachments ; 
 and here more is meant than meets the ear in the 
 words of the judgment 1673: For we are now 
 told " ^hat judgment was formed in part, upon 
 " a variety of precedents refpecting criminal 
 cc accufations in parliament againft culprits of 
 " ftate. The anfwer, therefore, is a little wider 
 " than the queftion ; and adds, " other bujinefs 
 " in judicature," which takes in impeachment 
 <f as another judicial proceeding. The main dif- 
 " ference being this That in judicature, the 
 " lords are the fame court, but in legiflature, 
 <f the commons may be different 5 a diftindlion 
 
 " taken
 
 ( 77 ) 
 
 fc taken by Lord Hale himfelf. It is true, that 
 <c Special orders do appear to have continued 
 <f fome of thofe proceedings, but that was only 
 " for precaution j and if the power to continue 
 " an impeachment be once admitted, the want 
 " of fpecial order will not weaken the right of 
 (C demanding its continuance." 
 
 Upon my word, Sir, the refinement of thefe 
 analogies, out-refines all the " quibbles of the 
 " lawj"-r-but a few words of plain fenfe will 
 mark the difference. In writs of error, the 
 mere law is upon the record j and there is no 
 evidence begun, which is to be continued. In 
 appeals, there is, or may be, matter of evidence; 
 but there, from the very nature of the ap- 
 pellant court, viva voce evidence could never 
 in that fhape have been delivered to them. 
 But upon impeachment, the lords have taken 
 evidence viva voce ; and can it be faid that 
 proceedings upon that evidence, well, or ill re- 
 corded, or not recorded at all, but in their me- 
 mories, after an interval of ten years, can be at 
 all refembled to any part of their appellant ju- 
 rifdiction, except in the general inconvenience of 
 delay ; and which, I apprehend, was a main 
 ingredient of the common law, that abated an 
 appeal even after prorogation. 
 
 13 But
 
 ( 73 ) 
 
 But another anfwer is, which has in part been 
 anticipated The accujer is no more. Every one 
 of thofe who impeached may be out of the next 
 parliament ; and in that view the analogy from 
 legiflative proceedings appears to me irrcfift- 
 ible. A judgment upon evidence is to be exer- 
 cifed by thofe who may be abfolutely new to it ; 
 and cannot, therefore, give their predeceflbrs 
 credit, for their floating memories of any one 
 fact, or impreffion, even if thofe memories could 
 be reached.
 
 ( 79 ) 
 
 LETTER THE SIXTH. 
 
 Horum Jimplicitas miferalilis ; his furor ipfe 
 Dat veniam; fed pejores, qui talia verbis 
 Hereulis invadunt, et de virtute loquuntur, 
 Sed quando uberior vitiorum copia ? quando 
 Major avaritise patuit iinus ? 
 
 JUVENAL. 
 
 SIR, 
 
 IF ftrefs can for a moment be laid upon the 
 " Jalutary conferences of the order > in what 
 " befel the Earl of Danby himfelf," who, as it 
 has been argued, was the main objeft of this 
 public fpirit, in the commons, let us examine 
 the faffs upon record , Jirji^ as if no attempt had 
 been made by his perfecutors to implicate him 
 with any part of the infernal clamour againft the 
 popifh plot j and then, with a view to their ufe 
 of that plot, as criminating him. 
 
 I can venture to aflert, upon a deliberate view 
 of the fubjecl, that almoft every meafure adopt- 
 ed againft him by the commons in parliament, 
 
 before
 
 C so } 
 
 before and after the refolution of 167? (levelled 
 alfo at him, as well as the catholic peers), was 
 an outrage even upon the forms and the decen- 
 cies of juftice ; in a houfe of commons too, as 
 thoroughly packed by the Duke of Monmoiith, as. 
 the firft parliament of 1685 could have been by 
 king James. 
 
 For example they accufe him of treafon, as 
 refulting from a charge, which, if true, does not 
 conftitute that offence. This, indeed, had pre- 
 cedent for, it in the perfecution of a better man 
 (Lord Clarendon) , but that precedent was ini- 
 quitous. 
 
 In one of the conferences, to juftify a bill of 
 attainder againft him, if he fhould not appear 
 upon a given day, Wmnington has thefe words : 
 " This is no flight of innocent Mofes from the 
 <e Egyptians, but of guilty Cain." * Sacheverel 
 fays, " It is but a bill of fummons, to keep him 
 erfefling his treafons abroad." 
 
 * By the way, this eminent patriot, between Dec. 1678 
 and Dec. 1679, received for his good fervices to Louis XI f. 
 juft 300 guineas ; and apart of that fervice exprefsly (which, 
 It feems, Montagu was to manage) was, " to ruin Lord Dan- 
 *.' ly." In the lift which Barillon fends to his king, having 
 mentioned Harbord, he adds, " Qui a beaucoup contribue a 
 '* la mine du, Comtt de Danbi, 500 guinees." Dalrymple's 
 Appendix. 
 
 They
 
 ( 81 ) 
 
 They prejudge the juftice of the Court (be^ 
 fore which they accufe him), upon the legality 
 of his defence ; affirming to that Court (by way 
 of tf privilege" I fuppofe, yet in round, and ju- 
 dicial terms) that his plea " cannot be received." 
 
 But nothing, in the whole tenor of their per- 
 fecution, is more an infuk upon the feelings of 
 men, than what happened as to his plea of the 
 pardon, compared (ad homines) to their own 
 conduct in vindicating the impeachment ; 
 <f We can take every article of it for granted 
 cc (fay the Lords), but it amounts to no treajon" 
 
 <c Hear us, however, to that point (fay the 
 " Commons) before you determine it." 
 
 Yet when the pardon is pleaded (as to which 
 they had been themfelves cautious enough to 
 examine precedents, and could only difcover, 
 that in faft the King had never made this ufe 
 of his right), they are in a rage againfl the 
 Lords, for appointing an early day upon which 
 that plea fhould be heard ; they demand an im- 
 mediate Judgment upon it, which is dictated by 
 them; and threaten with all their fulminated 
 vengeance, the advocate or friend of the Earl, 
 that ftiall dare to fupport his plea at the bar of 
 the Court, who are his only Judges, and who 
 have ordered that \\ejhall be heard. 
 
 * M When
 
 ( 82 ) 
 
 When the Earl complains of this to the 
 Lords, they afk the Commons if fuch a vote 
 had pafied , and receive no anfwer ! 
 
 The difunion of the two Houfes upon other 
 topics, and their union upon this legal continu- 
 ance of the impeachment after a difiblution, 
 have been flated with an air of triumph in the 
 debate ; as if, in the firft place, it were a fatt 
 clear of any doubt j and as if, in the next, it 
 proved the force of truth, which could fo unite 
 thefe competitors, when fuch an effential point 
 of the Conftitution was at ftake. But there is 
 no fuch faff, and there could be no fuch /- 
 ference from it. 
 
 The Lords begun with fpirit, but they were 
 intimidated in the end by the popular flame, and 
 their concefTions, before they legiflated this Or- 
 der> as well as after it, were evidently obtained 
 by durefs upon their will. Of their pufillani- 
 mity, the Journals have recorded feveral glaring 
 proofs. 
 
 For example, they attempt a compromife, 
 when the Commons are goading them to the 
 impeachment, and refufing to let them bear 
 the defence in bar : They recommend his ba- 
 nifhment, and fend them a bill for that pur- 
 pofe, to which the Commons reply in a Bill of 
 
 attainder,
 
 ( 83 ) 
 
 attainder, if he fhould not appear upon a given 
 day : The Lords are terrified ; they pafs the 
 Bill j and it obtains the Royal aflent. 
 
 In one of their conferences, 1 2th April 1679, 
 they meanly congratulate the Commons upon the 
 point they had carried in this very doctrine of 
 continuing the Impeachment, as if they had 
 helped them to it j which unqueftionably was 
 true. The Commons anfwer with more fpirit, 
 than veracity (but fpirit is often better in po- 
 litics), " That it was a Right for which they did 
 <c not thank them, founded upon the courje and 
 " ufage cf Parliament \"Jplendide mendaces. 
 
 In this conference Lord Shaftejbury (the 
 wickedeft, and the ableft of incendiaries) takes an 
 active part; he contradicts the Lord Privy 
 Seal-, takes the popular fide (with his tool the 
 Duke of Monmoutb * at his elbow) in favor of 
 the Commons, but with fome degree of ma- 
 nagement, as he was then tampering at Court, 
 where he and his party, then mod inveterate 
 enemies to the Earl of Danly y upon the 2ift of 
 that very month, were admitted with open arms 
 into the King's new Council. What hopes for 
 the Earl ofDanby then ? But indeed what juf- 
 
 * They often remind one of the Cardinal de Retz, and 
 <he Due de Beaufort. 
 
 * M 2 tice
 
 ( 84 ) 
 
 tice was ever done to him for an imprifonment 
 five years in the Tower, without profecution, 
 by thofe who turned a deaf ear to his demand of 
 it, and punifhed him in part without hearing 
 him, by the imprifonment itfelf. 
 
 But is it unfair to mark, with how much dif- 
 ingenuity they delivered him up to the rage of 
 the times, (little fhort of a national delirium,) 
 againfb the Popijb defign, that political fable (of 
 Lord SbafteJ&ury's contrivance, as it is generally 
 believed), which began, continued, and ended 
 in a fyftem of the mod complicated perjury that 
 forms of juftice ever fanclified, and of murder 
 the moft atrocious that ever had the mafk of 
 judicial folemnities ? 
 
 But let us take the impeachment itfelf, and 
 read the fourth article of it, which imputes to 
 him * e That he is Popijhly affefted, and hath 
 " traiteroujly concealed the late horrid plot ; 
 < c that he hath fupprefled the King's evidence, 
 <{ and hath difcountenanced the witnefTes." 
 
 In the very firft reafon againft even hearing 
 him upon his pardon, the Commons tell the 
 Lords " That his ufe of it, and the long pro- 
 " teftation by which he introduces it, are an 
 < c afpeifion upon the King, as if his Majefty 
 5 C had commanded or countenanced his crimes, 
 
 " particularly
 
 ( 85 ) 
 
 fc particularly that of fupprefilng and of dif- 
 C( couraging the difcovery of this plot." 
 
 If it be faid, (and it may in part be faid with 
 truth,) that all this was thrown in as an " auxi- 
 < f Hary, but the main offence was the fale of 
 < c his matter's honor, and regal truft, proved 
 " againft him by his own Letters j" what a foul 
 character does it give to this profecution, that 
 it (hould have been fo tainted by thofe invidious 
 topics, and prejudices, for the purpofe of height- 
 ening the popular odium to which he was then 
 devoted ! 
 
 In truth, all the other articles (except that 
 refpecting the fale of the Peace) are fo loofe, and 
 fiimfy, that not only the Lords did right in re- 
 fufing to commit him *, upon charges, which, if 
 true, were no trealbn ; but as to thefe other arti- 
 cles, might have refufed to act upon them, as 
 having no folid ground of any kind, even for the 
 charge of mifdemeanours. 
 
 It is curious to obferve, that in Mr. Poule's f 
 accufing fpeech to the Commons, he charges 
 
 him 
 
 * Yet the fame Lords pafTed a Bill of attainder, to make 
 him appear, though at fir they would not commit him. 
 
 f This gentleman has the honor to be much diflinguifhed in 
 the correfpondciice between Barillon and Louis XIV, as being 
 high in the lift of thofe who, through the EmbafTador, were in 
 
 a fecret
 
 ( 86 ) 
 
 him with feven crimes $ but this " concealment of 
 the Popijb defign" is not one of them. Nor 
 Ihould it be omitted, that upon reading two Let- 
 ters of this Earl, revealed by Montagu (whoafted 
 in part* from pique to him for his preference of 
 Sir Wm. Temple \ J, and Letters which convicted 
 him of tampering with French money (payable 
 
 afecret confpiracy with France at this very period ; and " the 
 " ruin ofDanby" one exprefs arrangement. For his a&ivity, 
 and addrefs in that work, he received, between the 22d of 
 Dec. 1678, and the 24th of Dec. 1679, 500 guineas. Dal- 
 
 tymple. Plato, in his Republic, has punifhed thofe with 
 
 death who took prefents, though to execute a duty. There 
 was no fuch law for the Whigs, and Patriots of 1678. 
 
 * It ap'pears, upon unqueftioned proofs, that Montagu was 
 bribed by Louis XIV, for this profecution, and received 
 money to corrupt the Houfe of Commons, or the leaders of 
 it, in order to animate their fupport of it : Barillen ftates the 
 whole defign, in a Letter of Oft. 241)1, 1678. " If he 
 * f (Montagu] ruins Danty, in fix months, he is to have either 
 " 100,000 crowns in hand, or 40,000 crowns annually, 
 ' upon \hzHotel deVillt,m a penfion of 50,000 crowns for his 
 " life." " The deed is done," faid Montagu, in a Letter 
 to the King's minifter at Ferfailles, dated Oft. 26th, 1679. 
 ** Pay me for it ! " No ticket-porter could have made a more 
 cool demand for the delivery of a hare. " It has been done 
 " eight months ago, and has coft me 60,000 crowns." I 
 give the fubftance of his Letter. 
 
 f This Aldiel amongft the evil fpirits of 1678, having 
 been told, that " feeming to believe this plot, would be ufeful, 
 *.' found it was a fcene in which be could not be an aftor." 
 
 however
 
 however to the king, and one of them having at 
 the bottom of it, cc this by my order y C. R.") for 
 the Peace of Nimeguen, the Houfe at once deter- 
 mine to impeach him upon that evidence alone, 
 This, upon the igth of December 1678; yet upon 
 the 2 1 ft of that lame December, in the very arti- 
 cles themfelves, drawn up with Montagu's help, 
 we find the Popijh plot, and his concealment of it, 
 made a diftinct offence of high treafon againft 
 him; not a Jhadow of apparent evidence, or 
 explanation, having preceded this article. 
 
 The Earl dwells the moft upon this part of 
 the impeachment, with his accuftomed addrefs* 
 (for he certainly was a man of talents, though 
 neither an able, nor a faithful minifter,) in the 
 Houfe of Peers ; becaufe he knew it was the 
 moft calculated for prejudice againft him, and 
 felt his ground ftrong under him. 
 
 He mentions a very curious anecdote, which 
 is, that his own fon, then in the other Houfe, 
 voted for this 4th article, in order to mark the 
 kind of zeal which animated the Commons 
 againft him. In fact, it was he, the Earl of 
 Danby, who had juft laid Oates's narrative be- 
 fore the Houfe, againft the King's exprefs com- 
 mand: and Sir William Temple fays that he 
 3 had
 
 ( 88 ) 
 
 had fallen into the King's difpleafure upon that 
 very account *. 
 
 In the very next Parliament, upon a rule 
 taken from another Court of fummary jurifdic- 
 tioniCafttgatque, auditque dolos y Titus Oafes, 
 the moft infamous of men, is received, and 
 openly encouraged as an informer againft: 
 him, " for difcouraging the difcovery of the 
 <c Popifli plot." This inflames the popular 
 clamour. 
 
 We mark again their finefle in fattening 
 this Popilh defign upon him, when in one of the 
 conferences, upon the favorite point of refifting 
 the pardon, they exprefs a fear that a fimilar 
 pardon will be obtained for the Popifo Lords. 
 
 In 1681, Fitzharris, upon his trial, having 
 accufed the Earl of being privy to Godfrey's 
 
 * The King did not believe one fyllable of this defign ; and 
 yet in the end encouraged an open profecution of it, as tend- 
 ing to refute the imputation of his favor to Popery. Temple. 
 
 Upon the iyth of Nov. 1678, the Duke of York tells 
 Barillon, that he, the Earl, adopted the fentiments of Par- 
 liament again/I popery, to make bimfelf popular : yet he fo 
 contrived as to be hated by the Commons ; and when Earillon 
 afterwards, Feb. i6th, 1679, gives Lord Sunderland a warning 
 againft \hzfe popular flights, the anfwer which that intriguing 
 Peer gave to him is very Significant " Vous voyez comment le 
 " Comte dt Danbi, s*en ejl bien trou<ve." 
 
 murder
 
 murder * (a thing of ftage-effeR f, in Lord Sbaf- 
 tejbury's hands) ; and though his evidence, 
 (which he confeflfed, a little before his death, to 
 have been perjury fuborned,) befides many exter- 
 nal fufpicions, was grofs in itfelf, a bill of indifl- 
 ment was found againft the earl for that murder, 
 upon the very day that he was to appear in the 
 king's -bench, for the purpofe of demanding bail 
 upon his impeachment. 
 
 According to Rapin, the main view of this 
 profecution againft the Earl of Danby, was to 
 make him give up the king, and the Duke of 
 Tork, whom it was their perfevering defign to 
 accufe, and convict in form, as accomplices in 
 the Popijh plot; an offence which had been 
 previoufly not inferred againft them (by men 
 of common fenfe) but re$refented as inferred, 
 from the obftinate attachment of the duke to 
 that mercilefs religion, and the king's pecuniary 
 dependence upon Louis XIV. He adds, that 
 a belief in the catholic plot was confirmed by 
 thefe letters, which proved the king a corrupt 
 agent of the court of Verjailles j and that a fear 
 of Lord Dan&y's " difcoveries," was given 
 out as the fole motive to the pardon. 
 
 * Dalrymplt has a curious extraft from the MSS. of Lord 
 Keeper North, refpedUng this murder : " A popular ficlion 
 " was bufily circulated, that Godfrey had been feen laft at 
 " Arundel Houfe; or, as others whifpered, at the cockpit; 
 " in order that the Duke of Norfolk and Lord Danby might" 
 (in his emphatical words) " tcfs the fire from one to the other" 
 
 Bedice, who was twin-brother of Oates in perjuries, " had 
 <f feen the body at Sotnerjet Houfe," one of the palaces in which ' 
 the Queen refided. 
 
 f The body was, in truth, expofed, as Antony expofed 
 that of Caj'c.i-, to the populace. 
 
 | N Indeed,
 
 ( 90 ) 
 
 Indeed, the commons embark the miniftcr 
 and the king in the fame peril ; and upon the 
 22d March, when his majefty had appropriated 
 the guilt of thefe letters to himfelf, declaring, 
 c< that he would pardon him (the Earl of Danby) 
 <c ten times over, ifitfhould be required;" they 
 put a very unexampled, but a very juft, affront 
 upon him, by taking not the leaft notice of it *, 
 and proceeding directly to their demand of 
 judgment. 
 
 Burnet\> who gives the faireft, and the mod 
 rational, account of thefe crooked politics, that 
 is to be found in the hiftorian's page, truly dif- 
 tinguifties between the real import of Danfy's 
 letters, and that wild fuppofition of the <f Popijb 
 " pkt" as lurking at the bottom of them ; 
 a bottom " deeper than e'er plummet founded" 
 if the Popijh defign could be found in it. He 
 reprefents them to have been letters that fhould 
 have ftimulated the commons, the peers and the 
 public fpirit of all parties in the kingdom, united 
 as one man, into new laws againft popery ; in- 
 ftead of driving them into wicked, and prepofte- 
 rous accufations of innocent men. 
 
 Coleman's letters formed a direct evidence of 
 the general defign to favor popery : They were, 
 
 * Unexampled infult on the part of the king, in the tone of 
 defiance which accompanied this protection, juliified any re- 
 fentment of the commons againft him, which their legal "pow- 
 ers could enable them to enforce. 
 
 j- If any man after Burnet's account of Gates can believe 
 one fyllable that he faid or fwore, he muft believe that .Sara.-/ 
 himfelf is the woril of men : there is no other alternative. 
 
 by
 
 by a forced conftruction, received as proofs 
 of a fyftem in which the Earl of Danby took 
 a part ; and bis letters gave more alarm 
 when compared by falfe analogies to thofe of 
 Coleman: But this iniquity had a further extent. 
 The correfpondence of" both, viewed as parts of a 
 deliberate plan, was, by a more cruel outrage, 
 tortured into evidence of the <c bellijh plot" 
 (as it was called,) not only againft themlelves, but 
 againft every catholic, whom the intrigue of the 
 leaders in oppofuion would felect. The perjured 
 Oates was always at hand, and in the ready fiction 
 of his brain, would accufe any catholic at a 
 minute's warning, of an intention to murder the 
 king, &c. which intention had been long known 
 to him, the accufer, though hitherto withheld 
 from the public ear. Indeed, it was enough to 
 accufe in the lump, credulity often fparing his 
 prolific invention the tafk of a detailed *, and cir- 
 cumftantial falfehood. 
 
 Accufator erat, qui verbum dixerat, " Lie eft!" 
 The fallacy, or delufion of the parties, in this 
 cruel, and fanguinary fiction, was to confound 
 the teftimonies which appeared in proof againft 
 the king, and the catholics, (who were in collu- 
 fion, though upon different views, for the eftab- 
 lifhment of popery,) with another defign of the 
 moft atrocious nature that human depravity 
 could either admit, or invent. It was in proof 
 
 * Oates's difcoveries confifted of fo many particulars, that, 
 upon that very account, thougn two thirds of them were falfi- 
 fied, it was thought " above invention" to have invented the 
 'whole. Burnet. 
 
 J N 2 upon
 
 upon the view of Dan&y's letters, that Charles 
 tbe fecond was enflaved, in general, by his cor- 
 rupt avarice, to a catholic prince, and a bigoted 
 catholic, who hated proteftants, and proteftants 
 of this kingdom the mod. It was in proof, 
 upon the view of Coleman* * letters, that a ge- 
 neral defign had been fet on foot by the catho- 
 lics, to favor their own religion to ettablifh it 
 if they could. 
 
 Oafes, in his written paper, delivered, after the 
 revolution, to the houfe of peers, reprefents 
 "the Earl of Danfy's letters;" to have con- 
 firmed the general credit of his evidence. 
 
 I forbear to fay any thing further of the popilh 
 plot, either taken by itfelf as a mark upon the 
 times in which the order of 1678 was iffued, or 
 as being clofely referable, through the catholic 
 peers, to the view, and motives of that order; 
 nor will I touch, in this place, upon the inhu- 
 man ufe that was made of it in the cafe of Lord 
 Stafford, " whofe noble blood t having been fhed 
 " in fupport of it, has given a force to that 
 " precedent, which no later authorities could 
 " have fhaken." 
 
 This trope of eloquence (but which I heard 
 from a very able man) admitting really no fe- 
 rious anfwer, and in one's clofet rather tempting 
 
 * This unfortunate man, who was executed, efceur/e, de- 
 nied in his lateft breath every tittle of the evidence, by 
 which he fuffereJ. Oa es, and Bedloe, had been the witnefles 
 againft him; as they aUo were againft many others, who were 
 executed a^ter appealing to heaven in a manner equally folemn, 
 againft thefe perjuries. 
 
 one's
 
 ( 93 ) 
 
 one's ridicule, is put here as one proof, " that 
 fs all which gliftens (in thaf aflcmbly) is not 
 
 By the fide of it I would place the congenial 
 eloquence, and reckoning, of equal abilities, which 
 affifted in " fhedding that noble blood" as a fa- 
 crifice to the order of 1678 : " Under favor, 
 " what is once upon record in parliament, may 
 " at any time afterwards be proceeded upon: It 
 " is a fudden objection, but I conceive it hath 
 " been often done. 
 
 " However, in a cafe of this nature, when 
 " the life of the king when our own lives and 
 " our nation and our religion, lies at flake, 
 " I hope you would make a precedent *." 
 
 But after all, are fuch times, and fuch pro- 
 ceedings, and fuch modes of argument, as thefe, 
 no flain upon the order itfelf ? Are they un- 
 connected with it ? Are they only abufes of a 
 lega I power ? Or is the whole fyftem, an abufe, 
 including this 'pretended judgment as a part 
 of it ? Has it not been proved an afiumption of 
 illegal power ? And was it not the view of that 
 alTumption, to ufe political intrigue in the moft 
 odious form it ever had worn that of a fan- 
 guinary perfecution, fed, and cheriihed by a po- 
 pular clamour f ? 
 
 * Serjeant Maynard, as one of the managers ; a revered, 
 and a very honourable name ! but his accuitomed ability, as 
 well as temper, deferted him ontiiis trial. 
 
 f Upon feveral of the convi&ions a Ihout of joy rung 
 through the court.
 
 ( 94 ) 
 
 If it be faidj as I have heard, that, in 1685, 
 the times were equally infamous, and more cruel, 
 fuffer me to controvert that fuppofition. 
 
 The Campaign, as it has been called, is an ex- 
 ecrable parp of James the fecon^^ inglorious, and 
 wicked, reign ; but it is more to the perfonal 
 odium of Jeffreys, and the king, than a reproach 
 upon the general fpirit of the times. What are 
 the favage, and brutal incidents of the weftern 
 commifilon, to the murder of innocent catho- 
 lics, prejudged by the parliament, and the peo- 
 ple out of doors *, in a delirium of cruelty j 
 the infernal Scroggs-\ at their head, who, in his 
 judicial feat, bullied the witnefles reprefented 
 the guilt, as requiring no proof aflferted that 
 catholics, who were upon the fide of catholics, 
 had not the fame credit with proteftants, who 
 were againft them and gave them, when con- 
 victed, joy " of the majjes that were to be Jung 
 <c for them !" 
 
 Severity againft the rebels was juft. The 
 caufe had no iniquity j though in multiplying, 
 
 * " Thofe who are fubjefted by multitudes to wrong, are 
 " deprived of all confolaticn : they feem deferred by man- 
 *' kind, and overpowered by a confpiracy of their whole fpe- 
 " cies." Mr. Bur lie's Re/iefiions en the Revolution in France. 
 
 But what are multitudes alone, to multitudes trained in cold 
 mifchic:", by political incendiaries, armed with ariftocratical, 
 znAjuatcial powers familiar to the ufe of perjuries, and im- 
 preffed with an idea that even \sfoed innocent (if it VJM catholic} 
 bleed, was only to repay in kind, that general intention of the 
 catholics, to murder every good proteftant, which, though 
 never proved, it was noij'afe to difpute ? 
 
 f Wicked, ignorant, and poor, are the epithets, by which 
 Buruet has comprefled his character. 
 
 or
 
 ( 95 ) 
 
 or in felecting executions, and in the mode of 
 convicting prifoners, extreme injuftice, and cru- 
 elty were difplayed. 
 
 " But in. the popular ferments of 1678 and 
 fr 1679 originate our liberties: and was it not 
 " this period that gave to us the habeas corpus 
 " att?" 
 
 I agree, that a nobler fecurity for perfonal 
 freedom cannot be found, than in the acquifi- 
 tion of that law to the efficacy, and fpirit of the 
 writ, which had been fo often eluded. Nor am 
 I cold in admiring the bill of exclufion, which 
 paffed the lower houfe in 1769; nor do I at 
 all deny that ujurpers make very good laws. 
 Richard for example, and Crcmwell. But in a 
 comparifon between the times we are now com- 
 paring, what praife can be given, or I fhould 
 rather lay, what praife can be refufed by this hap- 
 pieft of all periods for liberty, the age of 1791, 
 to the bifhops (an order of men fo often calum- 
 niated), for the patriotic ftand made by them 
 againft the diffenfing power * j which they, and 
 the public fpirit of the kingdom, crufhed under 
 their feet ? Upon the rock of that refiftance 
 was built the revolution. It was one of thofe 
 
 * In fhejicojvl' Lord Clarendon* s diary, we have a curious 
 trait of "Jeffreys; and charatteriftic of all fuch brutal tyrants, 
 who, in the hour of peril, and in the aft of duplicity, or of 
 time-ierving revolt, often give themfelves an air of public 
 fpirit, which they keep in countenance by the fame unpoliih- 
 ed manners that accompanied their better fortune. 
 When lie faw that King James was ruined, he called Wright, 
 the chief juilice, " a beaft-" the other judges, " knaves and 
 "fools. Ke was averfe to this trial he was an boncfl man 
 " the judges were, moft of them, rogues. 1 * cuijufficeretfa-vus 
 ilk vu/tus, ac rubor, quo ft contra fudorem mimiebut. 
 
 exalted
 
 exalted precedents, in which (as in the cafe of 
 general warrants), practice, with a colour of 
 ufage refulting from its age, and uniformity, 
 but againft the efiential principles of law, was 
 refilled by the energies of the conftitution by 
 the common fenfe, and feelings of men. 
 
 As to Mr. Juftice Blackftones panegyric upon 
 1678 and 1679, ^ e u ^ e ma de of it in our de- 
 bate, convinces me, that Whigs are more ge- 
 nerous, now, than I have known them, in that 
 aflembly, heretofore; and will accept of any 
 help which their adverfaries in political theory 
 may offer to them. But if " Black/tone's Com- 
 " mentaries" in a political view of them, (take 
 forexample his account of the Revolution) confti- 
 tute part of that library which your friends the 
 ariftocracy of the Wbigs are to confult, I would 
 fay, as fully faid to Pom fey " Optimatibus 
 (t tuis nihil confido." The time was, that in 
 a debate upon fuch great queftions as thefe, a 
 writer fo prejudiced upon conftitution al topics 
 (to fay no worfe of it) would not have met with 
 any quarter from the perfon who quoted him 
 as an auxiliary to his argument. 
 
 But it is not the opinion of an elementary, 
 though ingenious, and ufeful writer upon law 
 that can overcome the obvious inference from 
 hiftorical fact, and record ; even if the paffage 
 warranted the purpofe, for which it was quoted. 
 
 Mr. Juflice Elackjlone gives to the period of 
 
 1679, the character of an %% pwfettting as good 
 
 a theoretical conftitution, as we ever enjoyed ; 
 
 formed, however, of thegood old materials, which 
 
 i in
 
 ( 97 ) 
 
 in general the madnefs of the times had fpared -, 
 for except the habeas corpus aft, I am not aware 
 of a fingle buttrefs added by them to the tenement 
 left them by their anceftors*. 
 
 Having faid this of theoretical perfection, he 
 admits an infinite number of practical oppref- 
 fions in the period that followed 1679: He 
 calls indeed the whole reign, fanguinary, turbu- 
 lent, and wicked: nor of his theoretical perfec- 
 tion, as it flood in 1679, does he reprefent the 
 order 0^1678 as a part. 
 
 As to his theoretical perfection, accomplifhed in 
 1679, I cannot agree with him ; and I appeal, 
 Sir, to you, whether an abfolute right of laying 
 afide parliaments was not a theoretical imper- 
 fecJion with a vengeance. It was praclical op- 
 prejfion too ; for the laft three years of that reign. 
 I would alfo beg to afk of you, if the want of a 
 fufficient guard againft the incurfions of a difpenj- 
 ing power, habitually exercifed from the earlieft 
 ages of the government, was not another imper* 
 feEfion. 
 
 As to his practical opprej/ion, the whole pro- 
 ceeding againft the Earl of Danby, at whom the 
 order of 1678 was levelled, and the order itfelf, 
 conftituted glaring parts of it, 
 
 I am aware, however, of a merit which they certainly 
 xad, in removing fome of the old appendages to the caflle ; 
 which had been kept up for ftate, and were become dangerous 
 o the tenement. [See the aft for the abolition of military 
 pnures, of purveyance, and pre-emption.] 
 
 O But
 
 ( 93 ) 
 
 But afcer all, there is extreme fallacy in the 
 argument, that credit is due to a particular 
 meafure, which is queftionable in itfelf, to fay no 
 worfe of it, in times of the moft violent faff ion, 
 to fay no worfe of them, becaufe in thofe times a 
 good law was made. 
 
 The writer of Hiftoric Doubts upon the fa- 
 bulous, and theatrical, monfter that has been 
 made of Richard the third, had better arguments 
 for the check which his ingenuity gave to this 
 exaggerated picture, than arife from the good 
 laws which that ufurper made. 
 
 But, on the other hand, if a law is made, 
 which is declaratory upon the face of it, and the 
 legiflators are the only witneffes in its favor, let 
 it be fuppofed, that I difcover them to be cor- 
 rupt, and fanguinary perfecutors of the indivi- 
 dual, at whom that law is pointed. Can I put 
 faith in it * ? If in the motive, and ufe of the 
 meafure, I difcover nothing but felfilh oppref- 
 fion, I fufpect the meafure itfelf if I perceive 
 trick in the mode of bringing it forward, and preci- 
 pitation in the time given to colourable enquiries; 
 but above all, if I difcover an abfolute falfebood in 
 the recital, and can prove, that in the fmgle ground 
 alleged for it, there is not a colour of analogy ; 
 
 * " Inter armayf/// leges," applies itfelf to a civil war, 
 in the field : but the political difcord, which is upon the 
 verge of a civil war, is guiltier dill. Amongft thofe arms, 
 the law is not " filent" but, which is a heavier calamity 
 bought and fold. 
 
 more 

 
 ( 99 ) 
 
 more ftill if I fee it refuted by irrefifuble 
 logies, and principles of Law, I turn from it 
 with fcorn, and refufe my allegiance to it. 
 
 I have here fuppofed the Order of 1678, 
 made in truth by the Houfe of Commons, that 
 is, by their influence upon the Houfe of Peers; 
 a conclufion which I would refift, if I could. But 
 " Socrates," and " Plato," the Commoner, and 
 Peer of that age, muft forgive me, if " Truth" 
 outweighs both of them in my efteem. 
 
 Indeed, as to the Peers, it feems a mea- 
 furing caft between the option, which I may, in 
 candor, indulge to them, of this fajfive obedience 
 to the Commons, in framing the Judgment^ 
 or of its original fin j as it ftands upon ground, 
 which is mcft infidioufly alleged, and whicfy 
 (hey muft have known to be falfe. 
 
 I have the honor to be, 
 S IR, 
 
 With great refpecl, &c. 
 
 O 2
 
 LETTER THE SEVENTH. 
 
 - fubla^o jure nocendi. 
 
 HORACE. 
 
 SIR, 
 
 <f f I \ H E influence of this Order and Judg- 
 " JL ment upon Courts of Law," has been 
 adduced as a powerful argument for the legal 
 authority of it, or, at lead, before the Order of 
 1785 had iflfued. In particular, the Earl of 
 Danb/s long imprifonment has been quoted 
 as proof, that it was an Order built upon 
 found principles of Law, or that it was made 
 impregnable againft every law, but that of 
 Parliament, by ramparts of the Conftitution j as 
 it met with fuch refpect from the Judges in Weft- 
 minfter-ball upon that Earl's repeated applica- 
 tions to them for bail. 
 
 Above all, and with more plaufibility, the Re- 
 port, in CartbeiVy of Lord Salt/bury* s fruitlefs pe- 
 tition for dilcharge, or bail, to the Court of King's 
 Bench, after the Parliament, in which he had 
 
 been
 
 been impeached, was at an end after tie Order 
 of 1685 had iffued and after the Revolution, 
 has been prefled as a decifive teftimony in favor 
 of the doc~lrine, " That impeachment is never 
 <{ terminated by the diffblution, or the natural, 
 " and regular end of the Parliament, in which 
 " it was begun." 
 
 This Letter will contain my anfwer to fuch 
 parts of the objection as confine themfelves to 
 the period between 1678 and 1685: the next 
 will take up, and clqfe, the difcuffion of Car- 
 thew's report. 
 
 Before I addrefs myfelf to the application for 
 bail in this earlier period, I beg leave to remind 
 you of a memorable facJ, and -precedent, which 
 intervened between the date of the Order in 
 1678, and the Earl of Danby's fir ft application 
 to the Court of King's Bench for bailj though 
 after Lord Stafford^ vain petition for it in the 
 fame Court after his trial and after his ex- 
 ecution. 
 
 This faft, and precedent, will evince, that 
 Courts of Law held the Order of 1678, as hav- 
 ing no legal weight, or credit j and, at leaft, as 
 forming no general authority, which could bind 
 the regular juftice of the kingdom. 
 
 lal-
 
 I allude, Sir, to Fitzbarris's trial in the Court 
 of King's Bench, upon the 2yth of April 1681 ; 
 to the arguments upon the difcufiion of his 
 plea-, to the point which be afiumed, and the 
 Attorney-General admitted ; each, in a different 
 mode, completely diicrediting the Order of 
 1678. 
 
 It is well known, that he was impeached by 
 the Commons, in order to be faved from an in- 
 dictment, and referved ultimately as another 
 Titus Oafes, with a view to the further attack 
 that was in train againft the Duke of Tork ; 
 that his impeachment was rejected by the 
 Lords ; that complaint was made by the Com- 
 mons againft that meafure, as " an obftruction 
 " to the juftice of the kingdom ;" that all were 
 menaced, who fhould proceed againft him at law ; 
 that he was indicted, however, after the diflb- 
 lution of that Parliament; that he was ar- 
 raigned upon this indictment, in the Court of 
 King's Bench, and pleaded in vain a " defend- 
 <f ing impeachment-" that he was convicted^ 
 and executed. 
 
 Burnet fays, that his plea failed him, becaufe 
 his impeachment had been rejected by the 
 Lords. But the hiftorian is deceived ; and it 
 was, in fact, refufed upon the fingle ground, that 
 his allegation of the depending impeachment, 
 
 upon
 
 ( 103 ) 
 
 upon which he relied, in bar to the indictment, 
 was formally incomplete ; the Judges gravely 
 infifting, that as to the faft itfelf, or, in other 
 words, the Jubflance of this plea, they had no- 
 thing to do with it. A paradox, grounded upon 
 the moft abje<5t fear ! 
 
 But upon the validity of this plea, either in 
 form, or fubftance,! (hall hazard no opinion; and 
 have recourfe to it for a very different purpofe; 
 that purpofe will foon unfold itfelf, and, if I am 
 not much deceived, will ftrike the reader as an 
 object of his peculiar attention. 
 
 It is, amongft other topics, thus argued by 
 Williams, the leading counfel for the culprit. 
 
 " It appears plainly upon the record, that 
 <c this Impeachment was depending before^ and 
 " it does not appear but that now the Parlia- 
 
 " ment is in being. 1 take the fubftance of 
 
 " our plea to be this: Here is a perfon im- 
 " peached in Parliament, by the Commons, for 
 " High Treafon, before the Lords; and, for 
 " aught that appears upon the record, that 
 " Parliament is in being ftill" 
 
 The Attorney Gen'eral makes this anfwer : - 
 
 They objecl, we have admitted here, that 
 ** there is an impeachment ; that we have ad- 
 
 < mitted
 
 ( 104 ) 
 
 " mitted it an impeachment for the fame mat- 
 <c tr . a nd that we have admitted the Parlia- 
 " went in being. 
 
 " Indeed, if we have admitted the Parliament 
 " in beingy it would go hard with us ; and., if 
 " not Jo admitted, Mr. Williams' s argument falls 
 
 " to the ground. But no fadt is admitted, 
 
 " which is not well pleaded, &:c." 
 
 He then makes the point, " that a diflblu- 
 tion of Parliament requires no proof j and 
 c< that every Court of Law takes notice of it, 
 ' without averment, as of a notorious fadV' 
 
 The whole fcope of his argument conveys 
 the idea, that " if an impeachment ever exifted 
 for the fame offence againft the culprit," 
 (a fadl which be thinks ill-pleaded) " it is no 
 " longer depending, after a diflblution of the 
 e Parliament." 
 
 Jeffreys, who follows him, has thefe remark- 
 able words : " Whether the impeachment did 
 " not fall by the diflfolution; /'/ is not ad- 
 <f mitted that it did not, but it is waved, as not 
 " being pertinent." 
 
 Another very important circumftance occurs 
 
 upon this trial important in itfelf important 
 
 ad bominem, with a reference to the actor in it 
 
 5 a mark
 
 ( 185 ) 
 
 a mark of the infamy due to the whole tranfac- 
 tion a decided proof, that when the objeft was 
 attained, in my Z ord Stafford's death, and the 
 Earl cf Danby's ruin, this order of 1678 was 
 confidered as a judgment funffum cjficioy and 
 laid upon the Pnelf, 
 
 The fecond counfel for Mr. Fitzkarris mult 
 fiot be overlooked tir Francis Wilmington. He 
 was the mod furious partifan for the commons, 
 againft: the Earl cfD'anfy, and the Popifh lords* 
 He attended rr.oft of the conferences upon 
 Eanby's impeachment, and was the boldeft in- 
 cendiary of his time. Having been folicitor- 
 general during a part of this fermerit, he was 
 removed from his office, and fell into the Duks 
 of MonmcutVs corps. In that fituation, he was 
 a manager of Lord Stafford's impeachment, and 
 exerted peculiar activity in the opprcffion of this 
 infulted, as well as injured peer j who could not 
 even be beard againft the order of 1678, though 
 in truth it was a judgment of death upon bim t 
 and a part of the judicial proceedings againft 
 him, behind his back ; though it never had 
 been acted upon, fo as to put any culprit upon 
 his trial, but himfelf; though it had not been 
 upon the journals two years ; and though, if he 
 could have been heard upon it by his counfel, not- 
 one of his grey hairs could have been touched* 
 P The
 
 The managers, as if to goad him by the ridicule 
 of their conduct (and moft of them, to their 
 ihame, were lawyers), either affirmed what they 
 knew to be falfe concerning it, or difiembled an 
 ignorance of it, and furprife at the objection ; or 
 with-held it as an arcanum imperii, never to be 
 developed by vulgar eyes ; or made no fcruple 
 to aver the neceflity of a new $recedent y com- 
 mencing at the execution of this culprit. Win- 
 mngton, however, who knew the order well, 
 affirms that, " it was deliberately made, upon a 
 " fearch of all precedents in all ages." The 
 moil atrocious falfehood that a court of juftice 
 ever heard, but which this court heard without 
 reproof, though every judge prefent muft have 
 known its falfehood, in one part of it; and 
 every judge who had been a lord committee, 
 muft have known, that nothing was more falfe 
 than the reft. 
 
 Yet this identical Sir Francis Winnington> ar- 
 guing upon Fitzbarris's trial for the continuance 
 of an impeachment after a diffblution of parlia- 
 ment, reafons upon loofe, and weak analogies, 
 lut without a bint at the order of i6y&: <f I 
 " contend (faid he) that whether the parliament 
 <c is in being, or is at an end, the impeachment 
 " is depending, with all its energies." And 
 how does he maintain it? By the order of 
 J 167$?
 
 1678? No, it is not once named; though to 
 name it , would have determined Fitzbarris's 
 plea to be good in fubftance; and though to 
 name it with refpeft, would have done honor to 
 that Parliament, which his political bias would 
 have prompted him to honor. Did he maintain 
 it by fome one of thofe precedents c< in all ages" 
 which had been fearched three little years before, 
 when he was keen in the purfuit ? By not a 
 fingle precedent, of any kind, except the folitary 
 one of "Berkeley's Cafe, not in the report of 1 673 
 not an impeachment, but a very unaccountable 
 proceeding, by which that culprit was tried in 
 Parliament before ajury was acquitted by them 
 and then bailed for his appearance at the next 
 Parliament, ad a udiendum judmum> &c. 
 
 We recolle6t, that he was manager in Lord 
 Stafford's trial, THREE MONTHS before this in- 
 didtment; yet of that cafe too not a word ! 
 though he was in the a6t of attempting to fuftain 
 the very point for which the "noble blood" of 
 this Peer had been fhed: Is is unfair to fay, 
 that he was alhamed of that proceeding too, and 
 before Lord Stafford was cold in his grave ? 
 
 The refult of this tranfaftion is, that after the 
 
 lion was dead (or had begun his nap, according 
 
 to the modern doclrine), the parties and their 
 
 cotmfel, by common aflent, chofe to forget this 
 
 P 2 Order
 
 Order of 1678, or laid it afide, as if all its 
 powers fell, when that corrupt, and factious Par- 
 liament was no more. They feem to laugh in 
 one another's face,- as the Roman augurs did, 
 when they met, and were not in office. 
 
 The leading advocate for a culprit, who was 
 the favorite of the Commons that were " only 
 11 a/leep" has nothing to fay for the continu- 
 ance of an impeachment which they had pre- 
 ferred, but this : " It continues, becaufe the 
 " Parliament is in being ftill, upon record; as 
 " the Attorney General has not counter-pleaded 
 cc the diflblution of that Parliament, which all 
 <( of us know to be the fact." But why did 
 not he argue thus (a doctrine more to the point, 
 and more judicious for his client): " The 
 " impeachment is depending, becaufe it has 
 " been carried up to the Lords ; and, after a 
 c diflblution of Parliament, all impeachments 
 * f are depending, by the law of the Peers, made 
 in 1678?" 
 
 Perhaps the beft clue to this very fingular 
 fact, would be that fuppofition which I have 
 already intimated, viz. that by this Order of 
 ^678, the Lords pointed only at thofe individual 
 impeachments, and left the general queftion, or 
 the fate of any other impeachment under new 
 circumftances, aflqat, 
 
 I have
 
 10 9 
 
 I have called it as it now appears, not only 
 a faff, b\it precedent -, and though \nftriRnefs it 
 cannot reach the latter defcription, infexfe it can; 
 for that, may in Jenje be called " precedent" 
 againft the weight, or credit of any judgment, 
 which proves, that in recenli facto the judgment 
 itfelf, and where it might have turned the balance, 
 is neither quoted in the public trial of an indict- 
 ment by him who had the interefl of his life at 
 flake in it, nor fuggefted in his favour by the 
 Court who tried him. 
 
 The inference muft, upon the whole, be this : 
 Either the Order of 1678 was given up on all 
 hands, as the political, and fleeting expedient of 
 a day, for a party-object, or as pointed fingly at 
 tbqfe impeachments, to which it exprefsly refer- 
 red, and at their peculiar condition. 
 
 This laft alternative might alfo account for 
 the continued imprifonment of Danfy, after 
 Fitzbarris's trial (for the Order might ftill have 
 its force againft him, as falling directly within 
 the reference of it) ; if other ways of accounting 
 for that imprifonment could not readily occur, 
 without prejudice to the general doctrine " that 
 " impeachments, after a difiblution of Parliament, 
 do at this day, legally ', and conftitwionally abate." 
 
 " But
 
 <c But if the Order was not imperative upon 
 c< the Conftable of the Tower, why continue 
 " his imprifonment one day, when the Peers no 
 <f longer exift as a Court ? why refufe to 
 " bail him at the inflant, bat under the idea of 
 " a coercive authority over him, refulting from 
 " the impeachment, which a future <c organ of 
 ' the people* will, or may refume ?" 
 
 The argument conveyed in this queftion, is 
 more fpecious, than folid. 
 
 Firft, the refufal of bail to the Earl ofDanbfs 
 frequent, and goading importunities, appears to 
 have been the effect either of cowardice, of fer- 
 vility, of corruption, or of prejudice againft him, 
 with a reference to the Popifh plot; from which 
 prejudice, none were exempt, or would have 
 owned it if they were. I have dated the ef- 
 fect that Fitzbarris's perjuries, after his con- 
 viction, threw upon the original credit of Dan~ 
 ly*s concern in Godfrey's murder. In the mean 
 time, the Order of 1678, pointed, and clear 
 with a reference to the Earl of Dan by* s impeach- 
 ment, hung over the Courts of Law ; fo that it 
 became extremely difficult for them, in fuch an 
 age, and fuch men as they were, to accept his 
 propofition of bail, though in a cafe, which, 
 
 upoq
 
 ( III ) 
 
 upon the founded principles of their difcretion, 
 fairly, and irrefiftibly called for it. 
 
 Jeffreys, however, took upon him the rifque 
 of bailing him ; and it is an act, which, in my 
 opinion, does him infinite honor; let that 
 monfter of cruelty and of injuftice be vindicated, 
 and even commended, where he deferves it. 
 
 Will any man contend, that a commitment 
 by the lords for high treafon is not bailable 
 with ftrict propriety, if the charge upon which 
 the commitment is founded, contains no fuch 
 offence, though it gives that name to fomething 
 elfe ? or, can it be faid, that if the charge bad 
 contained high treafon, there was not ground for 
 bail in the duration of Lord Danby's imprifon- 
 ment, and the tacit waiver of his profecution ? 
 
 In the cafe of Lord Stafford, applying for bail, 
 the court of kings-bench obferved, " that he 
 " was committed for high treafon, by the lords; 
 that commitments for high treafon upon 
 <c impeachment, were not within the habeas 
 " corpus aft, and confequently not bailable de 
 " jure, for want of profecution ; that it be- 
 " came therefore a mere point of difcreticn, and 
 " that upon their difcretion, they did not think 
 * f Ft proper to bail him." 
 
 t P 4 " But
 
 (C But why not within the habeas corpus a$t 
 " if the impeachment was not ftill in force ? 
 " for could not he have argued thus'? <f The 
 * e impeachment being at an end, I could have 
 <c been indicted j I have not been indicted, or 
 <c tried, as the act prefcribes -, I am, therefore, 
 " de jure bailable/' The anfwer is, that he 
 could not have been indicted or tried at law 
 upon this charge, and at the fuit of this proje- 
 cutor. 
 
 They could, in Stafford's cafe, have faid : * 
 " Our difcretion prompts us to bail him." 
 If they could, let me afk, if the difcretion of 
 courts, either to bail, or to remand, is not, of 
 itfelf, decifive to fhevv, that it is not the im- 
 peachment, but the opinion of thefe courts 
 alone, that between parliament and parliament 
 either detains, or bails, or liberates the culprit. 
 If that be conceded, as I think it muft, I 
 would then obferve, that our conftitution is not 
 apt to do things by halves ; and the idea that 
 a court of law may defeat an impeachment for 
 high treafon, by fetting the culprit free.,, if the 
 parliament is barely adjourned (which is a right 
 at law, clear of doubt) proves a fortiori, that no 
 houfe of peers can have the leait controul over 
 an impeachment, after " the new court" (accord- 
 ing to Chief Jujlice Rolte,) by which alone 
 
 they
 
 ( "3 ) 
 
 they fit has been diflblved ; that is, when the 
 parliament itfelf has met with a fimilar fate. 
 
 Here, at leaft, is a dilemma that requires a 
 very ferious, and a very accurate foiution. 
 
 Either the right of bailing in the court of 
 king's-bench, after a duTolution of parliament, 
 a culprit impeached by the commons, and im- 
 prifoned by the peers, affords evidence, and 
 proof, that after a parliament is at an end, there 
 is no depending impeachment ; or admits that 
 there is. 
 
 If the firft be the refult, there is an end of 
 that queftion. 
 
 If the latter be a more correct inference, what 
 can be a more glaring precedent (if I may ufe 
 the phrafe) of that jealoufy, which in my firft 
 letter I defcribed as the ruling fpirit of our con- 
 ftitution ? for here, then, will be another admit- 
 ted check upon the indefeajible right of the 
 commons to impeach with effett: a right, 
 which is more dangerous, in my view of it, 
 than a right of diflblving an impeachment, by 
 the diffolution of a parliament, which is denied; 
 or the right of bailing the party impeached in 
 the courts of law, which is admitted. Both of 
 thefe rights are formed upon fimilar analogies, 
 and are both of them liable to extreme abufe ; 
 
 with
 
 ( "4 ) 
 
 ivith a material difference, however, in point of 
 refponfibility between them ; for the diffolution 
 of parliament is an aft which can be met, and 
 refented, if it was an abufe of the regal truft, by 
 the next houfe of commons j but, " robes and 
 *' furred cloaks bide all" The court of law 
 would have only to fay " It was for our pure 
 (t difcretion to bail, or to remand him ; and our 
 " difcretion prompted our judgment, our con- 
 " fcience to bail him." What houfe of com- 
 mons can touch them for it ? 
 
 Here, too, is another, and ftriking proof, that 
 .Mr. Burke is more afraid of lawyers, and the 
 law, than our conftitution is, which refigns to 
 them, even during a petty adjournment of the 
 legiflature, a power of releaflng their fuitor 
 from that ftate-prifon which alone enfures his 
 appearance, which alone compels him to abide 
 ajuft profecution as a delinquent of ftate, ac- 
 cufed by the whole commons of the realm, be- 
 fore the peers of the realm, in their judicial court, 
 for, perhaps, the word of all political offences j 
 though not of a kind which the regular habits^ 
 pr powers of law woqld reach with effect. 
 
 I have the honor to be^ 
 S I R, 
 
 ursj &c,
 
 ( s ) 
 
 LETTER THE EIGHTH. 
 
 Non modo eventus rerum, fed ratio, caufeque nofcantur. 
 
 TACITV. 
 
 S I R, 
 
 " \>I7 HAT ftia11 be faid ( weareafked ) 
 
 " VV of the applications for bail, and fruit- 
 " lefs applications too, in the court of king's- 
 " bench, when the order of 1685 had been put 
 <c upon the journals ? Why did the two catholic 
 " peers, Lord Peterborough, and Lord Salijbury, 
 " continue to be imprifoned one day * in the 
 " tower, when the commons, who had im- 
 " Reached them, and the peers, who had com" 
 " mined them, were no more ? 'Why did Lord 
 
 * This queftion has not the merit of originality ; for the 
 dilemma which it endeavours to impofe upon the argument, 
 was alfo attempted, but without effeft, in Sfreater's cafe, 
 more than a century ago, by the attorney general : " If the 
 " order die (faid he) by the diflblution of parliament, the 
 " jailor mould then have fet open the door :" And he re- 
 commends an aclion againft him. Yet the party, who had 
 continued / vinculis under that order, was liberated by the 
 court, upon the fingle idea that no order exifted, or could be 
 refumed. This too is the more ftriking, becaufe the court of 
 the parliament then refided in the commons alone, who had 
 alfo in themfelves the legijlati<ve power. But an " order of 
 " parliament," and an " aft of parliament," were diitin- 
 guifhed by the court ; nor was the effect of a diflblution upon 
 either of them at all varied in the opinion of that court, by 
 the accident of ufurpers in the legiflative or judicial power. 
 The old analogy remained, and was affirmed with fpirit by a 
 court of law. 
 
 02 " Sail/bury
 
 ( "6 > 
 
 " Salijlury afk for bail, in the court of king's- 
 " bench, and afk for it in vain; that high 
 * f court not even condefcending to name the 
 " order of reverfal in 1685 ? And why did 
 " Lord Chief Juftice Half, in a later cafe, de- 
 <c clare, that impeachments continued between 
 " one parliament and the next ?" 
 
 I fhall give a diftinet anfwer to every one/ of 
 thefe queftipns. 
 
 Firft, If it were true that impeachment/0 /#;* 
 c depended," after the end of a parliament, as 
 to continue the imprifonment of the culprit upon 
 that ground alone, fubjec"b only to the difcretion 
 of bail j it would not follow, that it would there- 
 fore " depend" for another, and a very different 
 purpofe that of proceeding upon the fame im- 
 peachment againft him, and putting him upon 
 his trial in the next parliament j unlefs the ujage 
 were equally eftablifhed in both of thefe acts, or 
 the analogy y irrefiflible between them. 
 
 The next obfervation is, and, as it flrikes me, 
 a complete anfwer to this corollary, which has 
 been drawn from the continuance of prtfon to 
 that of impeachment for all its other purpofes ; 
 jhat 4n order to imprifon, made by a power legal 
 at the time, upon a legal charge, binds the 
 cuftody of that culprit, when the power that firft 
 committed him has no further controul over 
 him, till he can be legally difcharged by fome 
 
 courfe
 
 ( "7 ) 
 
 courfe of trial, or can demand bail dejure within 
 the Habeas Corpus aft> or can obtain it from the 
 difcretion of thofe to whom the law refers him. 
 That celebrated aft (which, by the way, is very 
 ill drawn tantamnerem, tarn negligenter agere ! ) 
 gives no fpecial power to the courts of law over 
 a warrant that has treafon or felony in it, * c plain 
 " and fpecial," unlefs where a term fhall have 
 intervened, without indiftment, and without jufl 
 apology for the delay j or where another term, 
 has alfo intervened, without indictment or trial. 
 
 The aft, therefore, does not reach imprifon- 
 ment by the lords for high treafon, plain and 
 fpecial upon the commitment, if the party fo 
 committed has been impeached; becaufe he is 
 no objeft of trial by indiftment upon thatjuit-, 
 as I have before obferved. 
 
 Thus, when Lord Stafford, who was clearly 
 within a direft, and exprefs view of the order 
 1678, applied for bail, after an imprifonment of 
 two years, to the court of king's- bench; they 
 refufe to bail him, upon their difcretion (ex- 
 plained as I have already intimated), and, as 
 they exprefs it themfelves, fc 'without any re- 
 " liance upon the order of 1678." 
 
 Therefore, as being imprifoned, all thefe peers, 
 with, or without reference to either of the orders, 
 Before 1685, or after it, were liable to that im- 
 
 prifonment,
 
 prifbnment, as being legally charged, and legally 
 committed ; unlefs they could fatisfy the court, 
 that bail ought, in juftice, to have been accepted. 
 
 But we are then told, " In Cartbew's Report, 
 " of Lord Salifburfs application, the order of 
 (t 1685 is not once named; and bail is refujed, 
 ff under circumftances which prompted every 
 " idea of a rational difcredon to receive it ; un- 
 " lefs the court had thought it competent for 
 <c the houfe of peers, then adjourned for two 
 " months, to refume this very impeachment, 
 " by their difcretion. For if the impeachment 
 <f was at an end, and therefore (ould not be re- 
 * e fumed, what fpecies of difcretion was it in the 
 * c judges of this court, that kept this peer in 
 f jail, for the fake of keeping him there!" 
 
 As this objection is very ingenious, and colour- 
 able as thefe too were times in which the liberty 
 of the fubje<5t held up its head, begun to re- 
 new its rights, to feel them, and act upon them, 
 it becomes neceflfary to vindicate the conduct of 
 the judges in that court, and account for itj 
 though in flrictnefs it would be enough to fay, 
 that if their difcretion was abufed, it would be no 
 evidence that an impeachment was " depending'* 
 againft the Earl of Salt/bury then i or is depend- 
 ing now againft Mr. Hajlings. 
 
 It appears from Cartbew, page 131, that 
 Lord Salijlury was impeached by the commons 
 
 for
 
 ( "9 ) 
 
 for high treafon; that he was committed 
 
 upon that impeachment by the houfe of peers, 
 to the tower; that he continued there, till 
 that parliament was diflblved, and a new one 
 had been called ; which after a long feffion was 
 adjourned for two months, at the very time of 
 this application for bail or difcharge to the court 
 of king's- bench. 
 
 It was made upon two grounds : . 
 
 He infilled frft, that he ought immediately 
 to be difchargedj as having been pardoned by 
 the ad which had patted in the laft feffion of 
 parliament, 
 
 But as there was no proceeding in court, 
 upon which this plea could be founded, the 
 judges, who could not judicially take notice 
 of the act, unlefs pleaded with neceflary aver- 
 ments, refufed the difcharge, as claimed upon 
 that fingle ground of the pardon. 
 
 Then it was moved that bail fhould be 
 accepted for him ; upon a reference to the Earl 
 of Dan fy' s cafe, who was bailed though com- 
 mitted for high treafon, upon impeachment: 
 The court refufe to bail him : 
 
 (l Becaufe there was a fhort adjournment of 
 (t the exifting parliament, and becaufe he Ihould 
 < f apply to the peers, for his bail." 
 
 The
 
 ( "O ) 
 
 " The Earl of Danby (they tell him) was 
 " bailed, becaufe the parliament of thofe days 
 " was proroguedy the time left uncertain for its 
 " meeting again, and he had no profpcct of an 
 " application there." 
 
 The cafe of Lord Stafford was alfo mentioned 
 by the court, as proving, " that commitments 
 " by the peers in parliament, are not made 
 " void by the diflblution of it.'* 
 
 It is alfo intimated, " that when the Earl of 
 " Danby was bailed, the recognizance bound 
 " him to appear at the next feffion of parlia- 
 " ment; which condition affirmed the commit- 
 " ment, and proved the opinion of the court, 
 <c that it was not avoided or difcharged." 
 
 This is the full efred of Lord Salt/bury* * cafe, 
 in Cartbew, and ftated with punctual accuracy 
 in all the eiFential points of it. 
 
 The confequences of it have been argued 
 thus: 
 
 " At this time, the court of king's -bench 
 <{ looked upon the reverfing order of 1685, as 
 * f of no effect in law j for, elfe, they muft have 
 * c liberated the Earl upon the fingle ground 
 " that his impeachment was at an end. 
 
 The
 
 cc The notice taken by the court, of Lord 
 ff Stafford's cafe, and the anxiety which they . 
 
 " (hew to point out, that even in the act of 
 
 " bailing T)anby his commitment was affirm- 
 
 (f ed, ftrongly indicate one or other of thefe 
 
 ct proportions : a perfect ignorance of the 
 
 " order in 1685 ; or an opinion, that upon 
 
 " that order they could not act in their judicial 
 
 ct character. Either of thefe alternatives throws 
 
 " a fhade of legal difcredit upon the order of 
 
 " 1685, in that enlightened period, which 
 
 " makes it impoffible for a lawyer in this age 
 
 " to utter one fyllable more in its favor." 
 
 It muft be confefied, that in the report, no 
 mention is once made of the order in 1685; 
 but it fhould alfo be confeffed by the partifans 
 for the order of 1678 (which alone they fet 
 up againft that of 1685), that a fimilar fatality 
 had buried that order too in legal oblivion, 
 if the filence of this Reporter upon either of 
 them is fatal. The court (according to him), 
 even the act of ftating the applications for bail 
 made by the Earl of Danby, at whom the order 
 was levelled, clearly difown the effect of it upon 
 them, as keeping Lord Salifbury's impeachment 
 alive j but confider the cafe juft as if no fuch 
 order had ever ifTued : leaving it entirely afloat, 
 whether a new parliament, or a new feflion, 
 R could
 
 could or could not proceed againft their fuitor, 
 the Earl of Saliji>ury. 
 
 I cannot forbear, however, to conjecture, 
 that even if the order 1685 bad been mentioned 
 by this Earl, and had been exprefsly made one 
 of his grounds for the difcbarge which he folicited, 
 the court, attending to all the circumftances, 
 would have doubted, whether a found, and a ju- 
 dicial difcretion would have authorized them to 
 comply with his requeft. 
 
 I am alfo of opinion, that a refufal to comply 
 with it, could not even in that period have been 
 fairly interpreted as a difavowal of the order of 
 1685 in its general effect ; if mentioned, and 
 prefied by the Earl himfelf. 
 
 Much lefs could it be fo confidered at this 
 time of day, by thofe who are milling to remem- 
 ber, and weigh difpaffionately, all that has hap- 
 pened fmce that period. 
 
 It is true, that when the court argued upon 
 the cafe of Stafford^ andof.Dtf4>'* tne order of 
 1685 might have been fet up, as counteracting, 
 and as annihilating the general effect of thofe pre- 
 cedents : but would not they have been juftified 
 
 by 

 
 ( "3 ) 
 
 by the conduct of Lord Salifoury himfelf, in 
 a doubt whether the order of 1685 had thq effect 
 which he would then have chall-.-nged, but/0 
 late in the day, I mean for him ? 
 
 They tell him " the houfe of lords was 
 " the beft place for his application" Of that, 
 and of the other houfe there had been " a very 
 " long fejficn -," a fact which is particularly 
 noticed in the report. If the earl bad applied 
 in that feffion, would not the court have natural- 
 ly inferred, as he remained in vinculis, that bail 
 had been refufed him by the peers ? and if 
 bail bad been refufed him in that place -, would 
 it not have fhaken the authority of the order 
 j685? If he had not applied, would not the 
 continuance of his imprifonment and his own for- 
 bearance to apply in parliament, when the peers 
 were fitting, call upon the judges in the court 
 of king's- bench, to bejitate, before they deter- 
 mined that an order, apparently fo little refyeft- 
 edby thofe who made it, and fo little trufted 
 by thofe for whom it was made, had really de- 
 ftroyed the effect of thofe two precedents in 
 Weft minfter -ball, which they had quoted as 
 affirming the right of a continued imprifonment, 
 or at lead, of bail for the fecurity of appear- 
 ance to a charge, that might be rejumed? 
 
 % R 2 Befides,
 
 Befides, if the Earl had forborn to attempt 
 his own relief, by afking the opinion of his own 
 peers in their judicial character, during a long 
 Jeffion, would it not have been a very fafe difcre- 
 tion, if the court, in anfwer to his precedent of 
 1685, had faid <c it is a very fhort adjourn- 
 " ment ; afk the lords what effect they afcribe 
 " to this judgment of their own ! You, and 
 <e they, together, have made the validity of it 
 <e> ambiguous to us, and have made it peculiarly 
 " fit that you fhould yourfelves together fettle 
 " the doubt." 
 
 But the main queftion is, what the lords 
 finally did in the cafe of Lord Salijbury himfelf, 
 upon the chapter of this very imprifonment. 
 
 If in that very cafe they afted judicially, upon 
 a marked principle, which afiumes the termina- 
 tion of an impeachment by an end of the power 
 that impeached, and the termination of an im- 
 prifonment by an end of the power that impri- 
 foned, they, who are the bed, and fupreme au-. 
 thoriry, have cleared up, in the very fame caufe, 
 any doubt which might, have been entertained 
 upon the Earl, of Salijbury's recent application 
 to the king's- bench. They have configned all 
 that was done at law in thofe cafes of Danby, 
 (who indeed had been alfo difcharged in 1685, 
 2 by
 
 ( "5 ) --- 
 
 by a judicial a<5t) and of Lord Stafford himfelf, 
 to legal oblivion. 
 
 That, in facl, the houfe of peers finally dif- 
 charged both of" thefe catholic peers j averting, 
 in a judicial form, or at lead with a judicial aft 
 and effett, the difiblution of Lord Salijbury\ im- 
 peachment, the following letter I think will 
 prove. If it fhould, let the authority of parlia- 
 ment, in Lord Salijlury\ cafe, as well as in 
 other precedents, that accompanied or followed 
 it (and which at prefent I will not anticipate), be 
 oppofed againft the authority of the king's-benck 
 in that cafe. 
 
 The court of law, in thofe days, (fafti- 
 dioufly, as the houfe of commons may look 
 at a journal of the lords in this triumphant 
 hour of privilege,} meant in Lord Salifbury^ 
 cafe, to be ultimately governed by the judicial 
 opinion of the lords ; and if it can be made 
 out that by that judicial opinion the impeach- 
 ment was annulled, can it be doubted, that 
 at any future period, the court itfelf muft have 
 held the authority of their own doubts, upon 
 which they refufed the Earl of Sali/lury's bail, 
 completely done away, and refcinded, by the 
 
 higher
 
 higher aft of that fupreme, and judicial power 
 to which they exprejsly referred him ? 
 
 It may be further cbferved, that when they 
 point at Lord Stafford's cafe as the authority 
 upon which they, refufe bail, they point at a 
 cafe in which it appears, that upon that unfor- 
 tunate perfon's trial, Sir William Jones, one of 
 the managers, affirms, the law which kept his 
 impeachment alive, to have been fo declared by 
 the houfe of peers (alluding to the order of 
 1678) ; " and that being Jo" two very empha- 
 tical words ! <c it was become (as be infifted) the 
 " law of the kingdom :" By which he could 
 only have meant, that it was become the law of 
 the kingdom, lecaufe the peers had refolved it 
 as the law of their tribunal. This too appears 
 more evident, when he gives to the high court, 
 then affembled, his ground of " hope" (as he 
 calls it,) that the commons were authorifed by 
 good reafon, to act upon the impeachment ; - 
 which ground he defcribes to be," that the 
 " lords had thus declared the law of their 
 <e houfe to the commons." If the lords 
 then, at a later period, have declared the law 
 of their boufe y and (according to Sir William 
 Jones) the law of the kingdom, to be the direct 
 reverfe, could the court of king's- bench, after 
 
 the
 
 ( "7 ) 
 
 the reverfal of the order in 16785 after the 
 lords, by a&ing upon the order of that reverfal, 
 in the difcharge of perfons impeached, had ju- 
 dicially notified it as the law of their houfe ; 
 could the court of king's-bench, duly apprized of 
 that circumftance, have referred themfelves to the 
 cafe of Lord Stafford, as juftifying a refufal to 
 bail, upon the order of 1678 alone? Could they 
 have done this, when that very order was no 
 longer a law of the peers, and was, therefore, 
 no longer a law of the kingdom ? 
 
 Upon Lord Stafford's trial, indeed, Sir Francis 
 Winnington urged, with miferably inferior 
 talents, what has been impreflfed with fuch 
 energy upon the debate of thefe queftions; 
 ." that an impeachment was, in truth, an aft 
 " of the commons out of parliament, and was, 
 " therefore, kept alive by them, in every 
 " change of their elected reprefentatives." 
 
 Whether I have refuted, or fhaken, in a for- 
 mer branch of this imperfect effay, that hypo- 
 thefis j or left it as firm as eloquence could have 
 made \tfeem to be, the reader will determine 
 for himfelf, I am all humility before him ; 
 and as to you. Sir, I am fo afraid of your wit 
 (the only form in which I can be fignificant 
 snough to be honoured with your difpleafure), 
 
 that
 
 ( 128 ) 
 
 that if I can 'efcape even that modeft pre-emi- 
 nence of being " the caufe that wit is in other 
 c< men," I fhall feel comfort in the obfcurity 
 which enables me to exclaim " effugere eft 
 " trittmptta." 
 
 I am, 
 
 S I R, 
 
 Yours, &c. 
 
 P. S. I had forgot the diSlum afcribed (by 
 thofe who affect a contempt for the lawyers) 
 to Lord Chief Jujlice Holt. Is it worth anfwer- 
 ing ? The anfwer is in a word ; but the evi- 
 dence of it, in a dull, and confufed report. 
 
 The tenor ofreafoning there, (if it merits the 
 name,) is in direct oppofition to the idea of a 
 continuing impeachment ; and the report is 
 abfolute nonfenfe, if Lord Holt, in that part of 
 it, affirmed the doctrine : for it would make him 
 coarfely, and abruptly, confute himfelf. 
 
 If he had faid the direct reverfe, a femblance 
 of more uniformity at leaft, if not of more ac- 
 curacy, would be given to this report. 
 
 The queftion was f{ if a writ of error to 
 " the next/$?0#ofa parliament fuperfeded exe- 
 " cution ;" Lord Holt is made, in the firft breath, 
 
 to
 
 ( "9 ) 
 
 to fay, that impeachments may continue be- 
 tween parliament and parliament, which. he 
 could not bavejaid with truth, after the order of 
 1685, and the confequent aft of the peers, had 
 faid the reverfe, and which he could not have had 
 occafion to fay, if it was truej becaufe, that very 
 order had continued writs of error to the next 
 parliament. In the next breath, as if to help 
 that firft propofition, he cites a cafe which 
 proves a writ of error no fuperfedeas, if a par- 
 liament is -prorogued, and of courfe to a day cer- 
 tain, but a term intervenes. 
 
 The final refult of an argument fcarce intel- 
 ligible, but evidently tending to make the writ 
 of error no fuperfedeas, in other words, to con- 
 fider it as abated, in that view, tells the parties, 
 with all due folemnity, cc that it leaves them 
 " to do what they can at law ;" which, though 
 not very comfortable words in the found of 
 them, rather import the idea of a right in 
 the original plaintiff to act upon his judgment 
 at law as if die writ of error had not flood in, 
 his way.
 
 LETTER THE NINTH. 
 
 tuus jam regnat Apollo. 
 
 S I R, 
 
 I A M come to a period, which, in the gene- 
 ral date of it, will be fure to command 
 your attention, reverence, and love. The air is 
 pure, and we tread upon confecrated ground. 
 Was the conftitution ever fo accurately under- 
 ftood, fo religioufly felt, and with fuch a calm 
 dignity of fpirit enforced, as in 1689-1690! 
 The charter of Runnymede, had flcetched a very 
 animated outline of our liberties. The * Jecond 
 charter of them in the bill of rights, brought 
 them home to us, and made them as practica- 
 ble, without injury to the executive power, as it 
 made them jealous in their checks upon the abufe 
 of it The vigilance of two great parties (loft at 
 an ill-fated hour in the factions that convulfed the 
 early periods of this prefent reign!) was tempered 
 by a common zeal for the public intereft, with 
 (hades of difference in the mode of accomplifhing 
 it. Not a fmgle meafure was carelefs, or corrupt, 
 
 * The petition of right, and the habeas corpus aSl, were, a* 
 far as they extended, of ineftimable value ; but, compara- 
 tively to the bill of rights, they were fhort, and imperfeft. 
 
 as
 
 as heretofore ; but every thing was canvafled, and 
 the jealoufy between the two Eftates, though it 
 became dignified, had not loft either its acute - 
 nefs, or fpirit. 
 
 Under thefe powerful aufpices, in defiance of 
 the moft exquifite ridicule that ever enchanted 
 the houfe of commons, who at any time (if 
 it is not a libel upon them to fay it) prefer a 
 good joke to a good argument, I muft bring 
 forward Sir Adam Blair, and fee if truth will not 
 once prove that ridicule is not the teft of it. 
 
 Sir Adam Blair (or Gordon, if you prefer the 
 name for the fake of the ballad) with certain 
 others who had been impeached by the com- 
 mons for high treafon, was upon the 4th of 
 July 1689, by an order of the peers, impri- 
 foned. Their treafon was that of publishing in 
 the month of June, a declaration by King James 
 dated i-n May, by which he half invited, and half 
 bullied the fubjecis of King William into arm? 
 againft him. 
 
 Whether fuch an offence at this day, COH- 
 ftitutes high treafon, has been doubted in mo- 
 dern times * j but it was at leaft a high crime, 
 
 * Mr. Jujlice Fofter inclines to the opinion, that it wou!4 
 not be high treafon, unlefs " with a reference to fome treafonablt 
 " aft then on foot, or intended" Thefe are loofe words, and 
 the whole paflage is very obfcure. 
 
 S a and
 
 ( 132 ) 
 
 and mifdemeanor, of the moft alarming effect, 
 at fo critical a period. 
 
 Upon the 25th of October in the fame year 
 1689, the commons firft impeached the Earls 
 of Salt/bury and Peterborough, (then pri- 
 foners in the tower,) for high treafon. 
 'Their treafon had no doubt upon it: and as it 
 was the offence of fhifting their allegiance to the 
 Pope, it was not likely at fuch a period as that 
 of July 1689, to be touched with a feeble 
 hand. 
 
 The imprifonment of Sir Adam Blair, &c. 
 remained as long as the parliament. Further 
 proceedings were had upon it, but no day was 
 appointed for his trial. 
 
 The parliament was, upon the 6th of February 
 in the fame year 1689, diflblved. 
 
 Upon the 4oth of March 1689, the parlia- 
 ment is again affembled; and upon the ift of 
 April 1690, the boufe refolved " to bail Sir 
 Adam Blair." 
 
 The very next refolution upon the journals 
 is in thefe words : 
 
 " Ordered That on Wednefday next this 
 cf houfe will take into confideration, whether 
 < c impeachments continue from parliament to 
 * { parliament." 
 
 Jt
 
 ( '33 ) 
 
 It was then ordered as follows : 
 
 " That on Monday next, Sir Adam Rlair 
 " fhall put in bail." 
 
 Here, then, let us paufe, and obferve, that 
 with a reference to the cafe of Blair at the com- 
 mencement of that parliament, before the impri- 
 foned peers had made any application, the 
 lords determined critically to examine this liti- 
 gated queftion, of a' tc depending impeachment," 
 but were either, upon the firft blufh of it, fatif- 
 fied concerning it, fo far as to bail that culprit, 
 though committed for high treafon, or muft 
 have ordered his bail upon fome 'political dif- 
 cretion of their own (and after they had them- 
 felves imprifoned him), without offence to the 
 commons. 
 
 Upon the Tuefday following, this order is 
 made : tf That on Thurfday next, the houfe 
 " will take into confideration, whether impeach- 
 " ments continue in Jlatu quo from parliament 
 "to parliament; and alfo, whether the courts 
 " in Weftminfter-hall may proceed in the in- 
 " tervals of parliament, after appeals or writs 
 <{ of error are depending in this houfe." 
 
 Upon Thurfday they order, " That, onTuef- 
 " day next, this houfe will take into confider- 
 f* ation, the flate of impeachments, whether 
 
 " they
 
 ( '34 ) 
 
 they continue in ftatu quo from parliament to 
 
 " parliament ; and alfo the report from the 
 
 " lords committees, appointed to examine and 
 
 " confider, whether the courts below may pro- 
 
 '* ceed in the intervals of parliament, after ap- 
 
 " peals or writs of error are depending in this 
 
 houfe." 
 
 The very queftion here put, which could not 
 efcape the knowledge of thofe in the other houfc 
 \vho were the beft friends to the rights of the 
 people that ever fat there, announced a fufpicion 
 at leaft, that the order of 1 67 8 was at an end, 
 or contained bad law. But it gave no alarm, 
 nor was " privilege" offended by it, any more 
 than it was by the releafe of the culprit upon 
 bail. 
 
 No further fteps were taken, and the parlia- 
 ment was prorogued to theyth of July 1690. It 
 met again for bufmefs, upon the 2d of October 
 in the fame year. 
 
 It muft here be admitted, that, from April to 
 July, the imprifoned lords delivered no petition, 
 even after the queftion refpecling the continuance 
 of impeachments had been appointed for dif- 
 cufllon upon a day in the month of April, and 
 though Blair had been actually bailed. How 
 to account for this, or for the reafons which 
 
 induced
 
 induced the houfe to go no further as to the in- 
 quiry then, it is impoffible for me to conjecture, 
 nor is it very material ; for, upon the firft 
 day of the parliament, October the 2d, 1690, a 
 petition was prefented by Lord Peterborougb y in 
 which, having ftated the diffolution, and the 
 act of pardon, he folicited that he might be dif- 
 charged. Lord Sail/bury alfo petitioned j and, 
 without dating the diiTolution of parliament, re- 
 lied, as it Ihould feem, upon the pardon alone. 
 
 Upon the 6th of October the lords met 
 again ; and the judges were aiked, whether the 
 offences of thefe Earls were comprifed in the 
 act of general pardon. 
 
 They anfwer " yes," if their crimes were com- 
 mitted before the ijth of February 1688, and 
 not in Ireland, nor beyond the feas. 
 
 Upon this hypothetical opinion, an immediate 
 queftion was put, whether they fhould be dif- 
 charged ; and the lords refolved in the negative, 
 but refolved to bail them. 
 
 'The Jame day lords committees were ap- 
 pointed by the houfe, " to infpect and confider 
 tf precedents, whether impeachments continue 
 (f in flatu quo from parliament to parliament, 
 " and having confidered thereof, to report their 
 " opinion to the houfe." 
 
 Upon
 
 ( '36 ) 
 
 Upon the 9th of October, " It is ordered, 
 " that the lords committees, appointed by 
 c the houfe to confider precedents, whether 
 c impeachments continue in ftatu quo from 
 " parliament to parliament, have hereby power 
 <c given them, to fend for the records of the 
 " feveral proceedings in the court of king's- 
 " bench, relating to the lords lately in the 
 <f tower upon impeachments, upon their mo- 
 " tions for their Habeas Corpus." 
 
 Upon the icth, " Ordered, that the lords 
 cc committees, &c. do meet to-morrow, and thac 
 " Mr. Petyt attend at the fame time." 
 
 This gentleman was a famous antiquarian, 
 particularly tenacious of the rights and " privi- 
 " leges" of the commons. 
 
 No report was made till the 3Oth of October; 
 which is not unworthy of remark, becaufe in 
 proves with how much deliberation the lords 
 had proceeded. 
 
 Upon -this day (October 3Oth) Lord Mul- 
 grave, having ftated feveral precedents brought 
 from the tower, has thefe words : 
 
 " Then
 
 " Then the committee examined the jour,- 
 " nals of the houfe, which reach from the 1 2th 
 " Hen. VII. ; and all precedents of impeach- 
 Cf ments fince that time, are in a lift now in 
 " the clerk's hands j among all which, none are 
 " to be found to continue from one parliament 
 " to another, except * the lords' who were lately 
 " fo long in the Tower." 
 
 Then followed this pafiagc -. 
 
 " After the confiderarion of which precedents, 
 cc and reading the orders made the i9th of 
 * e March 1678-9, and the 22d of May 1685, 
 " concerning impeachments ; and after a long 
 * c debate thereupon, and feveral things moved," 
 (which means, I fuppofe, mooted or debated; 
 for if they were motions in a parliamentary 
 form, they would appear) " this queftion was 
 <e propofed, whether the two Earls lhall be now 
 * e difcharged from their bail?" 
 
 " The previous queftion was negatived ; the 
 " main queftion put, and refolded in the af- 
 " firmative." 
 
 Is it refinement here, or is it plain, and ob- 
 vious inference, to conclude from all thefe paf- 
 fages taken together, that a legal termination of 
 
 * There is one flight inaccuracy tn this exception I IhaJl 
 touch upon it in the fequel. 
 
 T the
 
 ( '38 ) 
 
 the impeachment, fuppofed by the lords to 
 have refulted from a difiblution of parliament, 
 was the real ground of the difcharge ? 
 
 If it was the pardon, how could it operate fo 
 fo long even as ground for bail, and be made 
 afterwards ground for difcharge, without any 
 reafon affigned, or without evidence of the facts, 
 which alone could make the pardon fave thofe 
 peers ? 
 
 But, at leaft, will it be denied, that here the 
 lords, in the face of the public, adopt (though 
 not in exprefs words) the evident opinion of 
 their own committee, that the impeachment was 
 gt an end ? 
 
 If the pardon was their ground, they Ihould 
 have apprized the commons of that circum- 
 ftance. 
 
 The entire difcharge, under all the circum- 
 ftances, could only be juftified upon the idea of 
 their judicial opinion, that over the impeach- 
 ment itfelf they had no jurifdiction ; a point, 
 which they, like other courts, were exclufively 
 to determine for themfelves. 
 
 But what makes the real ground of this dif- 
 charge too clear for an argument is, that upon 
 |he 2d of December, Sir Adam Blair was com- 
 pletely
 
 ( '39 ) 
 
 pletely difcharged, upon the mere allegation, 
 that he had been ready to appear " when or- 
 dered." What can this difcharge have been 
 grounded upon, but the impoffibility of fuftain- 
 ing an order for his appearance when the im- 
 peachment was no more r Here too was a 
 cafe of alarm to the commons j for either Blair 
 was difcharged pending an impeachment for 
 high treafon, without any reafon upon earth ; 
 or it muft have been upon the idea, that his 
 cafe fell within that of the two lords, which it 
 could only do in refpect of the diflblution, for 
 there was no pardon that could apply to Sir 
 Adam Blair. 
 
 As the catholic peers were firft bailed, ac- 
 cording to the cafe, and precedent of Sir Adam 
 Blair > upon a general view, and memory of the 
 orders in 1678, and 1685, Sir Adam Blair was, 
 by a fimilar train of reafoning, liberated even 
 from the gentle cuftody of his bail, when the ca- 
 tholic peers had obtained their liberty. 
 
 In the houfe of commons was your favorite 
 SomerSy then folicitor- general. Would he have 
 endured even a fufpicion y that an impeachment 
 fhould clofe upon a diflblution, if he thought it 
 found, and eftablifhed ufage of parliament, that 
 it fhould not ? 
 
 J T 2 A very
 
 A very curious thing appears in the dififenting 
 proteft, which in its very firft reafon does not 
 feem to difpute the doctrine, but rather points 
 at the idea that others were to be helped by the 
 introduction of it into the debate j not the two 
 peers. 
 
 Here is another tacit, but ftrong, though 
 negative proof, that it was unexceptionable doc- 
 trine. 
 
 The reafon is unintelligible, if it refers to the 
 pardon j but if it refers to the doctrine as to 
 impeachments, nothing is more clear. 
 
 The whole queftion, as to impeachments, 
 was refumed, according to Burnet, with a view 
 to Lord Carmarthen, who then became a favo- 
 rite of king William, but was extremely ob- 
 noxious in the houfe of commons. They 
 even threatened the vote of an addrefs, to re- 
 move him from the king's council, upon ac- 
 count of his former impeachment ; a circum- 
 llance, which makes it even more unaccount- 
 able, that the commons, upon a fimilar fufpi- 
 cion to that which the diflfenting lords entertain- 
 ed, fhould not have taken fire at the mode in 
 which the vote of difcharge was expreffed, leav- 
 ing it equivocal at leaft whether it was not upon 
 
 the
 
 the doctrine that impeachments were at an end 
 with a parliament in which they had been in- 
 completely acted upon. 
 
 The unqueftioned excellent of thefe times 
 is a powerful argument in fupport of any doc- 
 trines affecting the conftitution, exprefled or 
 implied by the lords or commons who then 
 fat. 
 
 Here too, " tie want of profecufton" by the 
 commons is not afferted, nor is the impeach- 
 ment (as in 1701) difmijfedi but the vote con- 
 fiders it as gone. 
 
 I have the honor to be, 
 SIR, 
 
 Yours, &c.
 
 ( '42 ) 
 
 LETTER THE TENTH. 
 
 Jlle finiftrorsum, hie dextrorsum abit; unus utrique 
 Error; fed variis illudit pardbus. 
 
 HORACE. 
 
 SIR, 
 
 TO difcufs, with impartiality, the Duke * of 
 Leeds'* cafe in 1701, and that of Lord 
 Oxford in 1717, (which are to be the only fub- 
 jects of this Letter) I fhall endeavour to avoid 
 the extreme points, and what may be called, 
 even as againft laymen, the apices juris, in both 
 of the oppofite arguments j becaufe though in- 
 genuity may refine upon them, it muft either be 
 
 * It was archly faid in the houfe of commons, that he 
 was Lorn to make precedents ; and it is whimiical, that he is 
 always a witnefs for " depending impeachments" Before 
 1685 > he is perfecuted by a depending impeachment, and 
 a law to that effect is made for him ; natural enough in 
 thofe times : But that after that very law fhould have been 
 reverfed, he fhould come forward again with a new title of 
 honor, upon a new impeachment, and be made a witnefi 
 again for the departed order of 1678, not by a new perfeca- 
 tion, but in the very aft of being liberated from that new 
 impeachment, It a moft whimfical jump of the atoms ! 
 
 wilful 

 
 ( 143 ) 
 
 wilful, and perverfe, or, at the beft, very inao 
 curate reaibning that can give them credit. 
 
 But reafoning from both of thefe authorities 
 comparing them together and comparing both 
 of them to the earlier precedents I fhall hope 
 to fatisfy the reader, that whatever imprefilon 
 he may have received from the orders of 1685 
 and 1690, has derived no prejudice from the 
 order of 1701 j and has derived advantage from 
 ]Lord Oxford's cafe in 1717. 
 
 It is tbefaft, that in 1701, an impeachment 
 againft the Duke of Leeds appears to have been 
 difmifled, and for this one reafon " becaufe it 
 < f was not profecuted ;" though a diffblution of 
 parliament had intervened. 
 
 That order, by a young, but ingenious advo- 
 cate, was confidered in the debate as an adju- 
 dication " that notwithftanding a diffolution 
 < f of parliament, impeachments are legally re- 
 " fumed, and proceed." He told us, " that 
 <c it was the laft judgment of the peers upon 
 " this litigated queflion \ reftoring the order of 
 f ( 1678 by the rcverfal of that in 1685, and 
 f ( itfelf unreverfed." It feemed in general 
 Agreed, that he had miftaken thefe analogies, 
 jhough he Supported them, with ability; and 
 
 with
 
 ( 144 ). 
 
 with an impreflion upon all who heard him, 
 that his errors were thofe of an acute under- 
 ftanding. 
 
 It is a familiar principle of law, though ra- 
 ther implied, and adled upon, than affirmed, that 
 if two points of argument, or fad, are alleged, 
 by either of the parties in a fuit, or by a cul- 
 prit in his defence, or by a petitioner in his com- 
 plaint, as reafons for a judgment of the court, 
 and the court giving judgment in his favor, 
 exprefsly adopt only one of them, it is at 
 leaft no adjudication againft the legal weight of 
 the other. 
 
 Thus in Fifzbarris's plea two points arofe ; 
 one of them was the form the other was theyW- 
 fiance of that plea. When the court avoided 
 the queftion upon the fecond ground (which it 
 was in their power to do) by the nature of their 
 opinion upon the firft, and ruled the form to 
 vitiate this plea, they did not adjudge the fub- 
 ftance of it, upon which they faid nothing, to be 
 good. 
 
 Many reafons may be affigned, why a court 
 with peculiar difcretion may refufe to adopt one 
 of two reafons for their judgment, alleged at the 
 bar, even if they agree to it, and may obferve a 
 dead fiknce upon it. 1 
 
 But
 
 ( '45 ) 
 
 But even lefs can the idea of fuch an implied 
 adjudication be afcribed, either by lawyers or 
 laymen, to a cafe in which, out of two points in 
 his favor, the party himfelf cbufes to allege one, 
 and prevails in it ; or throws himfelf in general 
 upon the court, and they give one reafon, which 
 is a fufEcient authority for them to comply with 
 his requeft; uttering not a fyllable upon other 
 topics, which might have led them to the fame 
 adt 
 
 Nay, even if they refufe to adopt one of 
 two reafons alleged, and give it as their direct 
 opinion, that if it flood upon that reafon alone, 
 the party would not fucceed, but then do for him 
 what he defires of them, with a reference to the 
 other ground; that firft opinion is confidered 
 as extrajudicial, and the fubject of it is juft as 
 open to legal difcufiion as ever. 
 
 Nor is it, as it was reprefented, neceflarily a 
 binding adjudication, or precedent, becaufe it is 
 the laft. It has weight, upon that account, and 
 fo it has at law ; upon this idea, that judges 
 in general pay a deference to the fuppofed accu- 
 racy of their predeceflbrs in a folemn decifion ; 
 but the deference is by no means implicit, or 
 blind, unkfs where the decifion is of remote 
 antiquity, and the cuftom of the law in adopt- 
 U ing
 
 ing it ever fince, has given to it another weight, 
 though at fuch a diftance of time they are not 
 able to account for it, or even fhould have 
 no fcruple to refcind it if it had been re- 
 cent. In all other cafes, it is not the compa- 
 rative date of the judgment, that affirms it, but 
 the law contained in it, in the opinion of the 
 court who are ultimately to rule it. Of this 
 I can give you a memorable inftance, familiar 
 to the lawyers, and of no other confequence at 
 prefent except as a point of legal curiofity. 
 
 Before the at of parliament which made le- 
 gatees and creditors admifiible witneffes to a 
 devife of land, it was held by Lord Chief Juft ice 
 Lee, and the court of King's- bench, that fuch 
 \vitnefles were abfolutely incompetent. 
 
 After the aft of parliament, a cafe arofe in 
 the fame court of King's-bench upon a devife 
 before the act, and upon the very fame point 
 which has been ruled againft the competency of 
 the witnefs. Lord Mansfield, and his brethren, 
 determined that he was competent. 
 
 After this reverjlng decificn^ Lord Camden, and 
 the court of Common-pleas, replaced the earlier 
 judgment of the two by a judgment of their own, 
 conforming to it. 
 
 I am
 
 ( '47 J 
 
 I am aware, that by this mode of reafoning, 
 I may feem to depreciate the reverfing order of 
 1685; but I have faid nothing in favor of ir, 
 that militates againft thefe principles. For cate- 
 ris paribus* the later decifion is the beft ; but 
 I have gone further j and proved, as I hope, 
 the good law contained in it, as well as the 
 countenance it has received from later judg- 
 ments, or judicial atJs. I am proceeding to fhew, 
 that no judgment, or judicial acJ, or even extra- 
 judicial opinion of the fame court has ever fhaken 
 it; but that in Lord Oxford's cafe it was re- 
 cognized, and affirmed: not in a judicial form, 
 I admit, or with a mathematical certainty of the 
 fact ; but with a natural, and plain imprefiion 
 of it, which every man's common fenfe, in my 
 opinion, will entertain, when the circumftances 
 are laid before him. 
 
 As to the order of 1701, I can by no means 
 think it a circumftance of light, or trivial weight, 
 as others have done, with whom I have in ge- 
 neral agreed ; and I am ready even to admit, 
 that I fhould lay infinite ftrefs upon it, if it flood 
 alone ; as an authority (though I would not call 
 it a judicial one) againft the point which I am 
 endeavouring to fupport. 
 
 U , It
 
 It muft, in general, be conceded, that either 
 the lords did not approve the two laft precedents 
 of 1685 and 1690; or that for fome political 
 reafon, with two firings to their bow, in the 
 Duke of Leeds\ favor, they chofe to ufe one 
 of them alone> which they found effential to the 
 cafe of the other peers; and which, being a new 
 claim in the terms of it, (though within a ge- 
 neral equity of their judicial powers,) they were 
 anxious to announce in multiplied inftances of 
 it, though in one of them it was not wanted for 
 the particular cafe. A third alternative is, that 
 having plain ground before them, which united 
 all the cafes under one principle, " the want of 
 "projection," they overlooked (I mean literally) 
 the diftinclion as to the Duke of Leeds. 
 
 Let us examine thefe alternatives; but let it 
 be admitted firft, in return for my concefllons, 
 that if this order can at all wound the authority 
 of thofe in 1685, and 1690, or of the aRs that 
 accompanied them, it muft wound them by an 
 intention to depreciate their credit, either appa- 
 rent, or naturally inferred. 
 
 I would therefore afk, in this view, if it is 
 
 conceivable that, in 1701, the peers meant, by 
 
 the reafon which they afligned for liberating the 
 
 Duke of Leeds > to replace by a fide- wind the 
 
 1 1 order
 
 ( '49 ) 
 
 order of 1678, not before them, and, at One 
 ftroke, to overfet the judicial inference drawn in 
 1690, from a fearch of precedents, at leaft ela- 
 borate, and apparently impartial * ? Or, is not 
 either of the two other alternatives more pro- 
 bable? 
 
 It would have been a high difrefpeft for the 
 order of 1690, if the peers hadfaid in the order 
 of 1701, " being of opinion, that he has no 
 tf claim to be difcharged, upon account of the 
 " intervening difTolution." Would not many 
 of the peers who had iflued that order of 1690, 
 have ftarted up, and have claimed an audience 
 in fupport of their judgm ent? And could it have 
 been decently reverfed, without a debate upon 
 it? 
 
 * I was a little furprifed at the condefcenfion of a raoft 
 ingenuous, and liberal mind, in {looping to the remark, 
 " That Scroggs's cafe is omitted (evidently by accident) in 
 " the lift of precedents reported 1690, though conforming 
 * to that of Danby, and the catholic peers.." Nothing was 
 done upon it, and therefore it might flip from the attention 
 of that committee ; but more efpecially, becaufe it was before 
 the reverfing order of 1685, and pofterior to 1678 : So that 
 it was only the effeft of the order 1678 unreverfeel, and was 
 not in the view of the remark which the committee made, 
 by which they pointed at precedents, either earlier than 1678, 
 or later than 1685 ; meaning to convey the fame idea 
 which is more accurately expreffed by the diflsnting lords 
 in 1717. 
 
 Between
 
 Between thefe two periods of 1690 and 1701, 
 there was no political diftinction, as there was 
 between 1685 and 1678. The peers in 1701, 
 acted with as much patriotifm as both houfes 
 of parliament could have difplayed in 1690; 
 and, as their main conduct had fb much honor 
 in it, one fhould lefs impute this kind of trick 
 to them 3 for no conceivable purpofe. 
 
 You obferve, that it was not the point made 
 by the Duke of Leeds : But even let it be af- 
 fumed that it was ; could any thing be more 
 natural, than for the peers to cbiife, that without 
 prejudice to his other ground, though alleged, 
 he fhould be releafed upon this, when they were 
 felicitous for the eftablifhment of it, with a view 
 to their own general powers ? 
 
 It is very obvious to me, that fomething of a 
 fimilar kind was done as to the two catholic 
 peers in 1690. The lords could have examin- 
 ed the effect of the general pardon upon that 
 cafe, by comparing it with facts, which the 
 authenticated evidence could have adduced, 
 and without which, upon the hypothetical report 
 of the judges, this act of general pardon became 
 wafte paper, as to thofe who claimed the benefit 
 of it. But they cbofe to defert this obvious, and 
 ihort inquiry, for the direct purpofe (whether 
 
 political,
 
 political, or conftitutional) to liberate the peers, 
 upon the Jingle ground (as they moft clearly did) 
 of the terminated impeachment. If they did this, 
 in part, with a view to Lord Carmarthen , (who 
 had the talent of being always execrated by the 
 commons, under every title, and in every change 
 of his politics,) I fee no harm in it > as the fame 
 reafon which made him apprehenfive that a fingle 
 precedent, in fuch a period as that of 1685, 
 might not avail him in fuch a new <era of 
 things and men, as in 1690, might induce 
 the peers to examine difpafiionately, and fettle 
 this point; in order to redeem it, by aStlng upon 
 it, if it was right in itfelf, or to renounce it, if 
 it was wrong, by reforting to the other topic, of 
 the pardon alone. 
 
 It may be afked, however, upon what ground 
 it was, that in 1701, the law being thus 
 clear, and fettled, the Duke of Leeds deigned to 
 rid himfelf of the impeachment againft him 
 which could not hurt him ? I cannot anfwer for 
 the .Duke of Leeds in 1701; but it feems no 
 violent fuppofition, to apprehend that he might 
 think an aftual difcharge more convenient al- 
 together than a legal one, and the difmiffion of 
 bis impeachment a better fecurity for him than 
 an order of that court upon other impeachments, 
 liable to be reverfed, as be well knew, becaufe 
 
 he
 
 he knew the order againft himfelf in 1678 had 
 been actually reverfed in 1685. 
 
 But what is to be faid of the whole proceed- 
 ing in 1717 ? 
 
 Here again triumphant ridicule (and the knot 
 is worthy of the god) has been taken for the 
 teft of truthy againft the moft obvious impref- 
 fions of as plain a fact, as ever came under the 
 difcuffion of unbiafied men. 
 
 I again alk of any individual, and let him 
 have your talents, or let him have none, if he 
 has but the ufeful character tfzjenfible man ; of 
 bim I would afk, or, with equal confidence, of 
 the acuteft logician alive, two queftions : Are 
 you thoroughly poflefTed of the facts upon re- 
 cord, and of the hiftorical ones, obvioufly ap- 
 plicable to L^ord Oxford's cafe in 1717? If 
 you are, have you any doubt in your mind, 
 though upon the evidence of analogy alone, that 
 by the peers, affenting to that vote, or dif- 
 fenting from it, " the end of an impeachment, 
 * f as rejulting from the end of a parliament" 
 was taken for clear ? 
 
 If you are not apprized of the facts, here they 
 are: Examine them fairly, and then determine 
 for yourfelf. 
 
 Upon
 
 ( 153 ) 
 
 Upon the loth of July 1715, this Earl was 
 find impeached at the bar of the lords. 
 
 The tory-peerS) who were numerous, and 
 were his brothers in affliction, moved immedi- 
 ately two plaufible queftions enough : one for 
 an adjournment only of two days, the other for 
 a queftion to the judges cc whether the charge 
 u contained, or did not contain, high treafon.'* 
 
 Both propofitions were negatived by the whigi 
 (for the term in thofe times was more than a 
 found), though, as to the fecond of them, ic 
 feems unexceptionable, and a very dignified 
 caution againft imprifonment upon grounds 
 too haftily affumed upon the ipfe dixit of the 
 
 Upon the fame nth of July, this Earl was 
 committed, in the firft inflance, to the gentle 
 cuilody of the black rod. 
 
 But upon the i2th, an order of the peers* 
 find more fpecial than cuftomary, fent him to 
 the tower. The recital of it was that he was 
 impeached for high treafon, and that -particular 
 affs of high treafon were fpecifad by the im- 
 peachment. 
 
 X Upon
 
 ( 154 ) 
 
 Upon the yth of September, his anlwer was de- 
 livered. Upon the ipth of that month, a repli- 
 cation was put in by the commons j and the 
 lords, upon the 21 ft, gave notice to the com- 
 mons, that his Majefty would give the 
 orders for fca Molding, &c. in Hfeftminfter-baH. 
 I mention thefe dates and particulars (little in 
 themfelves) to mark the zeal of his adverfaries, 
 who were in full power, againfl him. Of this I 
 fliall make ufe hereafter. 
 
 Parliament was then adjourned to October the 
 6th i upon which day the king announces the 
 rebellion in Scotland. 
 
 Then a fortnight's adjournment carried both 
 houfes to the 2Oth; from whence, through fe- 
 veral diftinfb intervals of new adjournments, they 
 arrived in the end up to the 9th of January 
 1715-165 when the king made another ipeech 
 alluding to the rebellion. 
 
 In their anfwer to that fpeech, the commons 
 marked " the mal-adminiftration of Lord Oxford, 
 " as one great fource of the rebellion;" thi* 
 peer then lying under the weight of their im- 
 peachment. In that which intervened, and was 
 more accelerated againft the rebel peers, a hint 
 was given, that Lord Oxford encouraged them. 
 
 Well
 
 Well might James the Second exclaim, " all 
 " commons are the fame" No man admires 
 their public fpirit, and their political energy in 
 this government of ours, more than myfelf j 
 no man exults more in the general advantage of 
 their power to accufe a minifter, in, or out of 
 place 5 I think even the terror of it is of ufe, 
 and the juft exerciie of it, one of the moft 
 eligible advantages in the government. Buc 
 when 1 look at what I may call the tyranny of 
 their virtue, in fome of thofe judicial proceed- 
 ings which they have in faff inflituted, I am 
 fuch a tory y that I cannot reprefs the horror 
 which I feel in reflecting upon it : Here, 
 " Tros, Tyrtufve," is nothing to the fatal pre- 
 cedent of fuch intemperate conduct. If popular 
 zeal is ever to inflame a court of judicature, I 
 can fcarce imagine two better victims of it than 
 either of thefe Earls; but indeed, Sir, I am per- 
 fuaded that your goodnefs of heart will make 
 you revolt at thefe inhuman prejudications of 
 any culprit upon earth ; and I mud here do you 
 the juftice, to applaud your abftinence from any 
 fuch modes of irritating 'he popular mind againfl 
 Mr. Haftings. He is the worft enemy to im- 
 peachments, who can thus calumniate the noble 
 tnd which they have in view, by the mode of 
 profefiing to attain, or follow it. 
 
 X 2 We
 
 We left the Earl of Oxford in 1715-16, and 
 early in that year we find him again, upon the 
 22d of May 1717, a fuppliant at the bar of his 
 peers, in a very modefl petition, reprefenting, 
 " that he had been imprifoned ever fmce the 
 " 1 2th of July 1715;" ftating, " that one 
 "prorogation had intervened j" and requell- 
 ing, not a difcharge, nor even bail, but in ge- 
 neral terms, " that his imprifonment might not 
 " be indefinite." 
 
 An immediate order is made, " that all the 
 " lords this day prefent be a committee, to 
 c< fearch, and report fuch precedents, as may 
 " the better enable the houfe to judge, what 
 " may be proper to be done on occafion of the 
 " faid petition, and the cafe of the faid earl, as 
 fc it now flands before this houfe. That the 
 " earl's petition be referred to the faid com- 
 " mittee, who are, in the firft place, to fearch 
 <f for, and report fuch precedents, as relate to 
 " the condnuancce of impeachments fromjeflion 
 " Mfeffion" Here one fhould have thought 
 they would have (lopped, for this inquiry would 
 have given the fole grbund which they took for 
 the vote they iflued ; but no thefe words 
 are added " or from parliament to parlia- 
 " went" 
 
 This
 
 ( '57 ) 
 
 This claufe not being direftly to the point, 
 muft have been added for the fake of analogy 
 alone. 
 
 That analogy, as we know, could not, under 
 all the circumftances, if the whigs had common 
 fenfe, have been prefifed by them ; becaufe the 
 authorities upon dijfolution were againft them : 
 But for the tories to fet it up, was natural ; 
 becaufe, if they could prevail in it, all the force 
 of the orders in 1685, and 1690, would cover 
 them, and their favorite. 
 
 It was the obvious policy of the whigs, no 
 judicial precedent having reached the cafe of 
 prorogation, either in terminis, or (as they per- 
 haps concluded) upon found analogies, to dif- 
 tinguijh the nature of this interval, from that of 
 a dijfolution. It was the obvious policy of the 
 tories, to unite, and confound them. Lord 
 Trevor, a tory, and friend of Lord Oxford, was 
 at the head of this committee. 
 
 Upon the 25th of May 1717, they reported. 
 
 They cite in this report many cafes refpefling 
 dijfolution ; indeed all of them that were to be 
 found ; and I need not again (late the effect of 
 them. 
 
 Refpefting
 
 Refpecting prorogation, they cite very few, 
 not, as I recollect, more than two; that of 
 Lord Fifcount Mordant, 1666; and of Sir Wil- 
 liam Penn, 1668; which amount only to this 
 conclufion, tf that after prorogation, the com- 
 " mons did not in faft proceed :" Which, 
 however, was not a circumflance unfavourable 
 to Lord Oxford, though it could not be of much 
 ufe to him. 
 
 But they feem to lay ftrefs upon the judg- 
 ments in 1685, and 1690; they do not over- 
 look the Duke of Leeds, in 17013 and they call 
 into the lift (for no very intelligible purpofe) the 
 indiftments of feveral peers, unaccompanied with 
 any account of the effect produced upon them 
 by either of the intervals, and, I believe, unac- 
 companied by the faff. 
 
 The queftion is then put, with ftrict pro- 
 priety, <e whether prorogation terminates im- 
 " peachment ?" 
 
 It is refolved in the negative j and the dif- 
 fenting lords, or fome of them, proteft. 
 
 i. " Becaufe tberefeems to le no diftinffion be- 
 cf tween a prorogation and a diflblution of par- 
 " liament, which, in conftant practice, have had 
 " the fame effect as to determination of judicial 
 
 " and
 
 ( S9 ) 
 
 e and legislative proceedings ; and, confsqucntly 
 " this vote may tend to weaken the refolution of 
 fc May 2, 1 68 5, which was founded upon the law 
 <e and practice of parliament, without one prece- 
 " dent'to the contrary, except in the cafes which 
 Cf happened after the order made the i9th of 
 c< March 1678, which was reverfed and annulled 
 <e in 1685; and> in purfuance thereof t the Earl of 
 <f Salt/bury was bailed in 1690." 
 
 Whatever artifice, or fallacy of argument may 
 be contained in thefe records of diflent (and 
 I fee traits of both in this proteft), they are of 
 ineftimable value in one view, as keys to the point 
 of tbe debate. 
 
 There was no pretence for determining this 
 impeachment, unlefs prorogation fell within a 
 perfect, or, at leaft, a liberal analogy of diffolution. 
 
 The enquiry therefore, as to the effect of 
 diJTolution, was intruded upon the houfe, (by the 
 medium of the committee,) on the part of Lord 
 Oxford; the whigs not afraid of it, and there- 
 fore not refilling it. 
 
 That analogy, therefore, muft have been 
 
 prefTed in the debate ; and the written diflent 
 
 is generally a reinforcement of the topics that 
 
 J X 4 had
 
 had been ufed by the peers who oppofed the 
 vote with a little more Jting, as the refult, 
 in part, of irritation at their defeat. What faid 
 the whigs in this debate, by way of anfwer to 
 the fortes in their attempted analogy ? Either 
 nothing^ which, in a debate fuftained by inge- 
 nious men, is not probable, or that the two 
 cafes were different, or that being the fame, 
 they were both of them, in parliamentary law, 
 cafes of continuance not of abatement. 
 
 If they had made the laft afiertion, what 
 could be more weak than for the tories to have 
 protefted as they did ? And Lord Nottingham 
 (one of thofe diflenting peers) was not a weak 
 man: Would they not, inftead of touching 
 with a general commendation upon the orders 
 of 1685, and 1690, have reafoned at length 
 upon them, and vindicated their propriety ? 
 Would they not have anfwered in their -prat eft, 
 as they muft alfa have done in the debate, thofe 
 grounds upon which thefe orders had been de- 
 preciated by their adverfaries ? 
 
 On the other hand, if the whigs denied the 
 analogy, they muft either have denied, or ad- 
 mitted the law that was affirmed by the tories 
 refpecting diffolution to be correct. If they 
 denied the law to be good, this proteft would be 
 5 abfurd -,
 
 abfurd -, if they admitted the law, it would he 
 natural, and properly exprefled. 
 
 The tffett of their proteft is to fay : " There 
 " is no doubt as to dijfoluiion ; and prorogation 
 ff is the fame thing with a reference to this 
 <c point of determining an impeachment. We 
 <f are afraid of a new precedent ; which profeffing 
 <( in terms only to reach the interval of proro- 
 <c gation, may, in its confequences, derogate 
 " from the authority of that order in 1685, 
 cc refpecting dijfolution, upon which you have, 
 ! yourfelves, judicially acted in 1690." 
 
 By the way, it is material to obferve, how 
 directly the aft of the peers in difcharging Lord 
 Salt/bury, is referred by thefe protelting lords 
 to the judgment of 1685. That reference they 
 muft have afferted in the debate; and it unuil 
 have been admitted, or they would have made 
 fome efforts to eftablifh it, inftead of barely af- 
 firming it upon the written argument. I there- 
 fore call every peer in this debate, as a wit- 
 nefs to the faft, that in Lord Sali/bur/s cafe 
 the houfe of peers did not act upon thep^r^flw, 
 did aft upon the order of 1685. 
 
 What a mockery upon good fenfe, good 
 
 manners, and parliamentary decorum (in a houfe 
 
 that claims the monopoly of it), if this proteft 
 
 had been written after a debate, in which the 
 
 Y order 

 
 ( 162 ) 
 
 order of 1685, and the effeft of it in 1690, had 
 been queftioned ! 
 
 What could have been the ufe of fuch a fal- 
 lacy ? The wbigSy triumphant in reafoning as 
 well as in power, would have anfwered thus : 
 " tend to weaken the order of 1685 ! How 
 " can it weaken that which has no ftrength ? If 
 * c it has, we mean to weaken it, we mean to de- 
 <c ftroy it j we told you Jo in the debate. You 
 " ftate as an admitted point, that a difiblution 
 " ends an impeachment, as if conceded by us. 
 <e You cannot pretend ignorance that we made 
 " you no fuch concefiion." 
 
 It is an anecdote, but of fome importance, 
 that Lord Nottingham was prefent (and it may be 
 fuppofed not inactive) in the debates of 1685, and 
 of 1690. It would have therefore been peculiarly 
 difgraceful in that peer, to have fet up the vali- 
 dity of this order in 1685, by a general aver- 
 ment, if he had not felt his ground ftrong under 
 him, upon the fubfequent confirmation given 
 to it in 1690 j and upon the agreed opinion of 
 that fame court in this very debate of 1717,
 
 I muft here imprefs upon the reader what 
 appears to me, a juft, and liberal diftinction. 
 Knowing of how little ufe would be the doctrine 
 of retaining the impeachment for the purpofe of a 
 new trial upon it, after the unexampled prolix- 
 ity of this, I have not expatiated upon the dif- 
 Terence, wide as it is in general reafoning, be- 
 tween that fpecies of continuance, and what 
 is now demanded by the commons, namely, 
 the right of going on with an impeach- 
 ment upon which evidence has been beard. 
 But in point ofufage, I take the difcrimination 
 to be this : That if all the various precedents 
 of parliament itfelf, applicable to the point of 
 continuing, or ending an impeachment, are laid 
 upon the fhelf ; in other words, if the decifion 
 is to be governed by analogies to other courts of 
 criminal juftice, and the leading principles of 
 it, in our law, the record being ftill in the houfe 
 of peers, that court would, or might aft upon 
 it, from the point of the record itfelf j calling 
 upon the culprit again to anfwer. 'The continu- 
 ation of the evidence would not be endured. 
 
 But if precedents in parliament itfelf are to 
 
 regulate, and controul this analogy, a diffblution 
 
 Y 2 of
 
 C '64 ) 
 
 of parliament, in that view, leaves no record, 
 upon which the court can act at ally or for any 
 furpoje in the new parliament. 
 
 I have the honor to be, 
 SIR, 
 
 Yours, &c.
 
 LETTER THE ELEVENTH. 
 
 Aliud eft maledicere, aliud accufare. Accufatio crimen defide- 
 rat, rem ut definiat, hominem ut notet, argumento probet, 
 tefte confirmet. Maledidio nihil habet propofiti, praster 
 contumeliam ; quae, ii petulantius ja&atur, convicium, fi 
 facetius, urbanitas dicitur, 
 
 CICERO. 
 
 SI R, 
 
 1 HASTEN to releafe you (or, I fhould rather 
 fay the reader, who may have thought me 
 worth his attention) from the political, hiftori- 
 cal, and legal evidence, which an interefting 
 purfuit, at leaft in my view of it, has tempted 
 me to lay before you. Perhaps, in what I have 
 written, may appear that very zeal ofapartifan, 
 which I have deprecated, not only as an infult 
 upon the public, but as being of ferious pre- 
 judice to my own argument: Yet, I can with 
 truth affirm, that I have not been confcious of 
 this polemical fpirit, for a fmgle moment. If 
 the indifcretion of a nature, which does not 
 pique itfelf upon the oppofite virtue, or of a 
 pen, which never had the courage before, to 
 encounter general criticifm upon a field of fuch 
 
 extent,
 
 ( 166 ) 
 
 extent, has betrayed me into words that are too 
 flrong, I recall them, and wifh the reader may 
 in candour put them to the account of that 
 " incuria," which evenjyoa, Sir, (though in you, 
 genius always accompanies it) cannot univer- 
 fally efcape. 
 
 It becomes me, who am one of the leafl of a 
 minority ridiculous in point of numbers, but 
 in many parts of it made refpectable by the 
 weight of* legal abilities, and perfonal character, 
 to be diffident in my own thoughts, or in thofe 
 which I may have borrowed from others who 
 formed a part of that minority, againft the poli- 
 tical, and favourite opinion of the day 3 at leaft 
 in parliament. 
 
 I am comforted however by this reflection- 
 that every liberal fupporter of the " viftrix cauja" 
 has admitted, in exprefs words, the importance 
 of the difcufiion; and has proved, that in his 
 own mind a doubt hangs over it, by thofe vehe- 
 ment efforts which his eloquence, or wit, or 
 talent of reafoning, or weight of party-con- 
 
 * I remember a minority of Jive in the houfe of lords ; 
 two of them were Lord Northington, and Lord Camden. By 
 accident Lord Mansfield was not in the houfe, or would have 
 madey?*, having given his opinion againft the vote that 
 prevailed. 
 
 nectionsj
 
 nedions, or popularity of character, has called 
 forth into the debate. 
 
 Nor is it in one view unaccompanied with 
 fome flattery to the lawyers in this minority, 
 that perfonal ridicule upon one of them, and a 
 general banter upon their whole profeflion, as 
 a part of the fenate,has been thought a rhetorical, 
 or political expedient, of no defpicable value, by 
 fuch powerful reafoners as Mr. Burke and Mr. 
 Fox. 
 
 But, firft, I am to deprecate, as a conftitu- 
 tional member of parliament, all diftinflion of 
 rich and poor, of high or fubordinate rank, of 
 commerce or of land, of noble or plebeian 
 origin, of military or naval profeflion, of poli- 
 ticians or lawyers, of this or that ground for 
 independence, for ambition, for perfonal views, 
 or party engagements; in thofe, who, fuch as 
 they are, conftitute the reprefentatives of the 
 people: They are all of them treated by the 
 conftitution (without Marc -Antony's ridicule,) 
 as " honourable men" Thefe, are principles 
 which I have learnt ever fince I begun to 
 reflect upon the nature of a parliament, in the 
 popular fcale of it; and they are principles, 
 which I have learnt in part from your captivat- 
 ing eloquence. 
 
 Let
 
 ( '68 ) 
 
 Let me afk in the next place, what is the 
 offence of thefe lawyers, which has drawn from 
 you fuch a contemptuous anathema againft their 
 whole profeflion (except thofe who voted, and 
 {poke upon your fide) j as if in future, the houfe 
 of commons could place no confidence in them ? 
 It is, that upon a fubject affecting deeply the eflen- 
 tial rights of the conftitution, and thofe of perfonal 
 freedom in particular, they could not furrender 
 their faith to the minifter of the day, to his, or 
 your eloquence, to the weight of your party, 
 and the minifterial one united ; or to a third fet 
 of their opponents, the culprit's admirers, and 
 friends; but have delivered their fentiments 
 like men of honour, without violence, but with- 
 out fear. 
 
 Shall it be forgot^ that mofl of them fee 
 in the minifter whom they oppofed in this de- 
 bate, an object of their general approbation, and 
 political attachment ? or, that on the other hand, 
 a very popular advocate, whofe want of po- 
 litical zeal for your fide of the houfe has 
 never been queftioned, came forward, and 
 threw the gauntlet, with his accuftomed fpirit, 
 in fupport of principles which he thought in- 
 alienable blefiings of the conftitution ? Let it 
 then be recorded, as at leaft one merit of thefe 
 
 diflfentient
 
 t '69 ) 
 
 diffentient lawyers, that party of no kind has at 
 all fwayed their conduct. As to their perfonal 
 character for integrity, (of all virtues in a fenator 
 the beft,) even the fc urbanitas" defcribed in the 
 motto, which diftinguiihed your elegant, though 
 keen fatire upon them, from the " convicium '* 
 that followed it, will hang like the fhaft in Virgil, 
 
 (( fummo dypei necquicquam umbone" 
 
 But, " they look to the konfe of lords.'* 
 Where, fir, muft that Revolution have been found* 
 which you fo correctly underftand, and with fuch 
 dignity have refcued from infidious friends -, if, 
 before the golden period arrived, Somers (a 
 name which no other, of any age, or of any fcene, 
 has yet furpafied, in liberality of fentiments, in the 
 delicacy of political difcernment, or in the moft 
 elevated fpirit of public virtue) had been called, 
 with popular effect, by fuch eloquence, and wit, 
 as yours, cc a bird of paflage," " not at home in 
 tc thehoufe of commons," but, " perching there 
 C in his way to the lords," with " his eye fixed 
 tf upon thofe flowers and fruits that were glow- 
 et ing, and ripening for him there, in that 
 " refting-place of delight ?" If in thofe days his 
 profeflion, which had always confiderable weight 
 in the houfe of commons, had been depreciated^ 
 where fhould we have traced the " jttft" and the 
 Z {C tenacious
 
 ( 170 ) 
 
 " tenacious of 'his purpoje" in Holt's character ? 
 or the experience, and Calm wifdom of May- 
 nard? If in earlier times the fame ridicule 
 had been fafhionable, we fhould have loft the 
 patriot firmnefs of Selden, accompanied with a 
 mafs of learning that in points of the deepeft 
 confequence to the liberty of the fubject, weigh- 
 ed his adverfaries down j the liberal, expanded, 
 and luminous mind of Lord Hale j I may add, 
 with all his blemifhes, the Earl of Clarendon ? 
 Were thefe, men of cramped ideas, or of that 
 grofs incapacity for conftitutional knowledge, 
 and political fpirit, which you afcribe to the in- 
 herent character, and radical infirmities of our 
 profeflion ? May I not afk too, if you have 
 difcovered in the hiftorian's page, that lawyers 
 have been even accujed of the " ejprit du corps, in 
 <c * parliament " or of any views to power and 
 rank, that were not rather challenged, than 
 folicited by the weight of their character ? 
 
 I fhall take up one more topic, which illuf- 
 trates, by a recent example, the public fpirit, and 
 the political independence of lawyers^ in the 
 boufe of commons. 
 
 Some of thofe who form a part of the mino- 
 rity upon your victorious 2jd of December 1790, 
 gave proofs of an attachment which no interefted 
 motive could fhake, either to their Jovereign, 
 
 (whom
 
 (whom you, Sir but I check myfelf ) or to that 
 minifter, whom a certain awful event was threaten- 
 ing to reduce into the common ranks of life. 
 The chances were then a million, perhaps, to the 
 minuted value in the oppofite fcale, that a novus 
 rerum ordo, a new reign, in effecl, would fet a 
 mark upon their opinions, to the ruin of their 
 political hopes. 
 
 On the other hand, very fagacious politicians, 
 \vho were not lawyers, embraced a different 
 line of conduct, and begun to difcover merits 
 upon your fids of the houfe when it was going to 
 be the other fide of it, which till that critical, 
 that illuminating hour, had eluded their dif- 
 cernment. 
 
 Pofterity will determine (if it (hould be inte- 
 refted by fuch enquiries at all) whether here 
 the politician who was no lawyer, or the lawyer 
 who was no politician, afted with moft honor to 
 the public, and bed underftood the conftitution. 
 But he, whofe new opinion led him to emolu- 
 ment, and who became a " whig," juft at the 
 time, of all others, in which men of that name 
 (for it is. no more, " vox, et praterea nihil) were 
 to fill offices of profit, mull own to me, that by 
 accident, his public virtue appeared in a more 
 *' queftionable Jhape" than a certain obftinacy of 
 Z 2 opinion.
 
 opinion, which paid its court rather to a felf-ap- 
 proving confcience, than to power and " tbe 
 fun." 
 
 Having, however, obferved, that before the 
 impeachment of Mr. Hafrings, you had not 
 formed this contemptuous opinion of the lawyers 
 upon other topics equally important, in \\hich 
 they took a part, I muft really hope, for 
 their fake, that your late ridicule of them arofe 
 from a diflike which you feem to have ingenu- 
 cufly conceived againft thofe land- marks of cri- 
 minal juftice, which their habits and reflections 
 have taught them to revere; from a with 
 to reach this Indian culprit with more facility 
 than mere law can admit, with a more ele- 
 vated hand, and upon more unfettered princi- 
 ples of reafon. I have obferved, that even the 
 rules, or principles (for fo ive call them) of legal 
 evidence are not admitted into yoi^r creed, as 
 any check .upon thofe who accufe by impeach- 
 ment. In vain you have been told, that fuch 
 rules as thefe had nothing technical in them, 
 but were inferences of found reafon, of the 
 moft liberal juftice, of that mercy which the 
 law of England loves, and of general conveni- 
 ence in guarding the " cuftodes i$fos," when 
 crimes are before them. But we muft unlearn 
 in your academy thefe quaint precepts, and admit
 
 ( '73 ) 
 
 in a court of parliament, that even rules of tefti- 
 mony, like every thing elfe, if the legal organs of 
 the people accufe, are to fhift as well as they can, 
 according to the exigency of the day, or of the 
 minute; and fo model themfelves as to attain 
 the political object, or vindicate the national ho- 
 nor, in convicting, and punilhing a delinquent 
 of ftate. 
 
 MontefquieUj I remember, in his very inge- 
 nious chapter upon our conftitution, has given 
 to the judges upon impeachment a power which 
 the conftitution has net given to them; but it 
 is a power of mercy, in tempering the rigor of 
 the law which has been violated. The idea of 
 enabling the accufer to difpenfe with rules of 
 law, againft the culprit, in order to facilitate his 
 conviction, had not been imparted by his Englifh 
 friends to the docility of that enlightened biftorian, 
 nor had the wifdom of it ftruck him as a philo- 
 Jopbical reajcner upon the policy of government. 
 
 As to Mr. Ha/lings, whom - you have repre- 
 fented the lawyers to befriend, I take pride in 
 declaring, again and again, my uniform opinion, 
 that you have moft ably felected him as the ob- 
 ject of your impeachment j and that no adequate 
 juftice could ever have tried him for the offence 
 which you have charged againft him, (upon fuffi- 
 cient ex-part e evidence,) if this ultimate refource, 
 
 and
 
 ( 174 ) 
 
 and folemn expedient of the national honor had 
 been overlooked, or entrufted into any hand but 
 your own. 
 
 The power of impeachment, if dignified and 
 chafte in the ufe of it, gives to our view the moft 
 elevated fcene that human juftice can admit: 
 not becaufe it has rules of its own, at a mo- 
 ment's warning, for any of its purpofes, adverfe 
 to the culprit ; not becaufe it may reflect upon 
 every judgment of the court, which is of ufe to 
 bim y and may inftitute even a perfonal conflict 
 with judges who form a part of that court* ; 
 
 not 
 
 * Lord Bacon fays ; " Let not the counfel at the bar chop 
 " with the judge, nor wind himfelf into the handling of the 
 " caufe anew, after he hath declared the fentence." 
 
 It is a diftin&ion of the managers for an impeachment, 
 that no counfel at the bar appear for them. The commons 
 execute no part of their accufing funclion by attornies ; they 
 demand imprifonment, or baiJ, or trial, or judgment, in their 
 wnperfons ; they are, in the eye of the confHtution at leaft, 
 tbeir own counfel ; and this, which has been lamented as a 
 difadvantage, is only too beneficial to them, unlefs tempa.- 
 rately managed, with a difcipline of felf-government, which 
 has been recommended even to an epic poet's difcretionj 
 
 " parcentis uiribus, atquc 
 ft Extenuantis eas, confuho!" 
 
 It may be, in the firfl place, an apology at once for a deport- 
 ment which no counfel would attempt ; becaufe be would know, 
 that it would give immediate offence to the court ; and for 
 propofitions, which no laivyer who valued his charades, 
 would rifque in a court of juftice. 
 
 la
 
 ( '75 ) 
 
 Hot becaufe it may endeavor to intimidate the 
 advocates for the accufed by the political rank 
 of the accufers ; not becaufe it may harrafs the 
 party with fuperfiuous delay, and expence ; 
 not becaufe it may ramble into accufations, 
 which are not alledged, and cannot, therefore, 
 be authenticated: But upon very different ideas 
 of an elevated character. Becaufe it refcues a 
 national concern from courts that would be un- 
 equal to it, and fcorns to alk a jury of London 
 
 In the next place, it enables them to imprefs, by the 
 afcendant of their eloquence, topics of odium againft the 
 culprit, which admit of no proof. They can reafon thus 
 (and it is an argument from their f-Meaknefs, to their 
 Jlrengib):" We are no lawyers ; if you bind us by the rule 
 " of inferior courts, a rule that we cannot underftand, you 
 " tell us at once, that we are no longer to accufe : Let us 
 " proceed, my lords, by rules of our own, rules that we do 
 " underftand; fuch as the rule of policy of flate conve- 
 " nience natural juftice, interpreted by ourfelves, and 
 " without a fmgle fetter upon it principles of fentiment, 
 *' and feelings of public fpirit." In other words (but in 
 their fleeve) they can tell them-" Let us tempt you to 
 " convift this man, by eloquence, rank, and power !" 
 
 Jane pater," dare, dare cum dixit, " Apollo" 
 Labra movet, metuens audiri, " da tnibi, pulchre 
 " Fallen." 
 
 In the laft place, it elevates the advocate for the accufer, 
 who is indeed the accufer himfelf, into a figure of political 
 importance, with whofe pride of ftation, the only attainable 
 advocate for the culprit is not upon even ground. 
 
 or
 
 ( 176 ) 
 
 or MiddlefeXy if treaties have been violated, na- 
 tions exterminated, or princes oppreffed, and en- 
 flaved*; becaufe the accufer by impeachment 
 is the people, in the moft awful fhape of their 
 power ; and if tribunals were to judge, who were 
 alfo taken from that clafs, they would be (as 
 Montefqtiieit, writing upon the very point, well 
 cxpreffes it, by a term that admits of no tranfla- 
 tion) entraines by the weight of fo powerful an 
 accufer j becaufe (to follow that writer) <c it k 
 " necefiary, in order to fuftain at once the dignity 
 " of the people, and the fecurity of the individual, 
 <c to make the popular branch of the legiflature 
 < c accufe before the other branch of it, confift- 
 tc ing of the peers, who have neither the pajfions 
 tf nor the intereft of the accufer;" becaufe it 
 holds a leffbn to rhinifters, great men of all 
 defcriptions, and even the fovereign himfelf, 
 that a feeling and a national fpirit, by its " ex- 
 ce frejs image" the houfe of commons, can reach 
 any delinquent of ftate, and guard the dignified 
 characler of Great-Britain againft the difhonour 
 of public wrongs j becaufe it marks to the pub- 
 
 * A more exquifite piece of fatire was never heard than 
 your's upon Sfrafton's fine, in the king's-bench : " The 
 " legal price cf a rebellion is looo/." But there was deep 
 fenfe in this wit ; for the courts of law have not arms long 
 enough to reach the extent of fuch crimes, or political energy 
 enough to puniih them as theyyc*/</ be punifhed. 
 
 3 lie*
 
 ( '77 ) 
 
 lie, that although national feelings and politi- 
 cal objects elevate this proceeding in dignity 
 and ufe above a common indictment, the 
 accufer glories in fubmitting to that, which 
 is paramount even of his character*, to a law 
 that protects the " gisnt" as well as " the 
 ce poor Jharded beetle" the oppreflbr, and 
 the oppreffed, againd the worft of all tyrannies, 
 judicial defpotifm to a law of rules > and prin- 
 ciples, the accumulated wifdom of ages, and 
 calculated for no fhifting exigencies of the day, 
 but for univerfal judgment: becaufe he who 
 accufes by impeachment is, in a better view 
 of that phrafe, the people , feels as they feel, 
 and refpects, without fhame, as they alfo re- 
 fpect, thofe prefumptions for the accufed, which 
 every man's heart approves; thofe ramparts 
 of legal evidence, and of equal juftice, which 
 every man is born to fupport : becaufe the 
 impeaching fenator does not find his under- 
 ftanding too proud, or his enthufiafm too vehe- 
 ment, for thofe rules of competency^ and credit^ 
 which govern the higheft courts of law in their 
 fyftems of proof j and are neither technical, nor 
 obfcure, but as liberal as they are clear, and as 
 
 * The anfwer of the judges to Henry the Vllltb deferves 
 to be writ in letters of gold : " An Inferior court could not, 
 " in law, or in j i<ft ice, doit; and we are of opinion, that 
 ** \hz higher the court is, the more j aft they ought to be." 
 
 A a deep
 
 deep in their policy as they are fmooth upon the 
 fur face. 
 
 But if to the uncommon advantages of 
 this accufer, can be added the indefinite conti- 
 nuance of his impeachment ; if the death 
 of the accufer in his popular office (which 
 alone enabled him to accufe) is to have no effect 
 in terminating the rifque of the culprit, but may 
 expofe him to a new accufer, more bitter, per- 
 haps, and lefs informed, or liberal, than the 
 firft ; if the king's power of diffolution may 
 baffle the riper judgment of the commons when 
 it inclines them to abandon their fuit, if it may 
 enable him, after accufing by influence through a 
 corrupt houfe of commons, to harrafs by delay, 
 to opprefs by imprilbnment, and convict by in- 
 trigue; a popular culprit, impeachments will be- 
 come unpopular, and great offenders will triumph 
 in their impunity. It is remarkable, that with 
 all the advantages of this proceeding in theory, 
 few impeachments, ever fince the line of Tudor 
 failed, have been either juft in themfelves, or 
 well conducted. Lord Bacon, and Lord Middle- 
 fex were proper objects of impeachment, and 
 fitly puniihed; but the mode of proceeding 
 againft them was abrupt, and irregular. The 
 impeachment of the rebel Scotch peers was moft 
 awfully, and ably conduced in both of the two 
 
 laft
 
 ( 79 ) 
 
 faft reigns. The impeachment of Lord Macclef- 
 feldj though it fprung from political motives, 
 and was perhaps too fevere, was ufeful in the 
 example, and very dignified in its conducT:. 
 The impeachment of Sacheverell was entirely 
 political, violent, and injudicious ; though it 
 brought forward fome of the ableft arguments 
 againft " paj/ive obedience" that were ever 
 thrown away upon fuch defpicable adverfaries. 
 One of thofe arguments, and which is of unex- 
 ampled ability in the annals of Englifh, and per- 
 haps of Roman eloquence, brilliant as they are, 
 is the work of a lawyer; of that ill-fated, but 
 accomplifhed peer whom I have laft mentioned, 
 and who owed the feals to the exertion which 
 he then made. 
 
 The reverfe of the piclure it gives me pain 
 to contemplate. The impeachment of Lord 
 Danby was in itfelf perfectly juft, and, if guard- 
 ed in its defcription, pure in its motives, or even 
 decent in its conduct, would have done the houfe 
 of commons or the peers no difhonour ; but, 
 as it is, no meafure ever difgraced either of thofe 
 two afTemblies more. Nothing but oblivion, 
 or contempt, faves the earlier impeachment of 
 Lord Clarendon, from that brand of odium upon 
 it, which elfe would be it's fate. The impeach- 
 A a 2 ment
 
 .( i8o ) 
 
 ment of Lord Stafford was* madnefs in cold 
 blood : And the memory of Lord Nottingham^ 
 great as he was in his own court, will be for 
 ever polluted by his addrefs to that peer, when 
 he apprifed him of his fate. Burnet calls it the 
 moft eloquent fpeech that he, the chancellor, 
 ever made j but cenfures the very folemn and 
 judicial declaration, that, <f a defign to murder 
 " the king, &c. had been on foot." Of the 
 eloquence, 1 fee no proof ; but of the humanity , 
 and good Jenfe, let the reader judge by the fol- 
 
 * Impeachment has been compared moll abfurdly to the 
 fuit of a party in what is called the appeal, and which demands 
 punifliment for the injury fuftered, more than for the offence 
 to the public. It was firft pecuniary, and was changed into 
 capital, but ftill partakes the idea of civil, and pecuniary atone- 
 ment; inafmuch as the death of a convicted appellee, may be 
 expiated by a fine, that is, the appellant may releafe the ap- 
 peal for a fum paid as the condition of that releafe But the 
 ancient ufage was, that all the relations of the party murder- 
 ed, had the comfort or " pritalegt" of dragging the appellee 
 to his place of execution. This kind of/avage recompence, is, 
 after all, in a more enlightened age, encouraged as a part 
 of our law; for the appeal at this day is, in its legal principle, 
 nothing elfe ; and it feemed as if the managers againft the 
 Vifcount Stafford felt that principle of the analogy ; with only 
 one made of difference, that in fhedding his blood they re- 
 fented the injury of others, or punifhed his religion by the 
 murder of a harmlefs, and weak individual, becaufe they could 
 not punifh it in the Duke of York, by excluding him from 
 the Englifa throne. Thefe, I call, again, the tyrannies of 
 public vh tue. 
 
 3 lowing
 
 lowing extrafts; which, if they were not fol- 
 lies .that ended in fhedding innocent blood, 
 would ftimulate one's ridicule more than one's 
 horror. 
 
 < f Who would have thought that a perfon of 
 * f your quality, &c. fhould have entered into fo 
 " infernal a confpiracy as to contrive the murder 
 " of the king, the ruin of the ftate, the fubver- 
 " fion of religion, and, as much as in you lay, 
 " the deftru&ion of ALL the BODIES and SOULS 
 
 ({ in THREE CHRISTIAN NATIONS ? 
 
 . . . . tc That there hath been a general, and a 
 " defperate confpiracy of the papifts, and that the 
 (( death of the king hath been all along one chief 
 " part of the confpirators' defign, is now afpa- 
 *' rent beyond all probability of doubt ." 
 
 Mark his proofs ! fc What was the meaning 
 " of all thofe treatifes which were publifhed 
 <c about two years fince againft the oath of 
 " allegiance, at a time when no man ever dreamt 
 <f of fuch a controverfy ? What was the mean- 
 " ing of Father Conyers's fermon upon the fame 
 " fubjeft j but only, there was a demonftration 
 " of zeal, as they called it, intended againft the 
 " perfon of the king, which the fcruples arifing 
 ^ from that oath did fomewhat hinder ? 
 
 " To
 
 f To what purpofe were all the correfponden- 
 c * cies with foreign nitions ? The collection of 
 <f money among the fathers, abroad, and home ? 
 " What was the meaning of their governing 
 Cf themfelves here by fuch advices as came fre- 
 c < quently from Paris or St. Omer's ? And how 
 <f fhall we expound that letter which came from 
 tf Ireland, to aflure the fathers here, that all 
 * e things were in readinefs there too, as foon as 
 <c the blow fhould be given ? 
 
 " Does any man -now begin to doubt how 
 " London came to be burnt \ or by what ways, 
 <c and means poor Juftice Godfrey fell? And 
 " is it not apparent by tbefe inftances, that fuch 
 <{ is the frantic zeal of fome bigoted papifts, 
 "'that they refolve no means to advance the 
 " catholic caufe fhall be left unattempted, 
 " though it be by fire and JwordT* 
 
 The impeachment of Lord Somers> &c. in 
 1701, and that of Lord Oxford, &c. in 1717, 
 came to nothing ; they were political meafures 
 of party- intrigue. 
 
 A fingle word upon the conduft of the impeach- 
 went againft Mr. Haftings. I admire moft 
 unequivocally, the eloquence employed in it, for 
 the nobleft of all purpofes, I think too, that 
 
 as
 
 as long as our commiffion, if I may ufe that 
 phrafe, is unrecalled, we cannot blame the ma- 
 nagers, with delicacy, or prudence. I difapprov- 
 ed the check which you received in the houfe 
 of Commons, upon the fubject of Nuncomar^ 
 and I did not vote for it. I lament, without 
 blaming, the time wbicb has been occupied in this 
 impeachment, for one plain reafon Mr. Haft- 
 ings is either innocent or guilty: If the former, 
 his acquittal is bare fecurity ; it is not honour, 
 as it Jhould be ; for it will be afcribed by the 
 common obferver, to the mere impulfe of 
 compaflion upon his judges for the anticipated 
 punifhment which he has already undergone: 
 If he is guilty, conviction, and punifhmenc 
 will be lefs exemplary; becaufe, they will be 
 counteracted, and weakened by the fame com- 
 paflion operating upon the good-nature of th 
 public. I am, however, much pleafed with your 
 laft propofal, to fhorten the remainder of your 
 articles : It was humane to the culprit, juft ia 
 its principle, correct in its form, and very ju- 
 dicious in the refpect it marked for the public 
 opinion. 
 
 I have the honour to be, 
 , SIR, 
 
 Yours, &c.
 
 C 184 ) 
 
 LETTER THE TWELFTH. 
 
 Nunc, quamobrem has partes didiceiim, paucis dabo. 
 
 TERENCB. 
 
 SIR, 
 
 HERE is not one of the many aftonifh- 
 JL ing talents, that nature, in her moft par- 
 tial mood, has given to Mr. Fox, which I have 
 fo often wifhed in vain to borrow of him, as the 
 talent of abbreviating, with new force, the fub- 
 fiance of an argument previoufly delivered by 
 himfelf; but with fo little hint of a regular 
 method, and with fuch variety of detail, that 
 you would little fufpefb the arrangement, by 
 which the parts of it are divided, or united, as 
 links of a chain. 
 
 In general, attempts at an epitome, either, 
 according to Horace's comment upon them, 
 (t ftrain at brevity, and become olfcure j" or 
 they are tirefome repetitions of thefenfe, in paf- 
 fages of detail, if not of the words ; or, without 
 
 being
 
 being fhort, omit the pafifages which moft re- 
 quire to be imprefled. 
 
 I fhall hope to avoid thofe defefts ; though 
 I defpair to catch the fainteil ray of that envied 
 'power which in Mr, Fox appears to me unex- 
 ampled, and above all competition. 
 
 My firft attempt has been, to refute general 
 principles which I thought new to the conftitu- 
 tion, dangerous to its freedom, and ready apo- 
 logies, in worfe times, for the law of tyrants in 
 the houfe of liberty ; for a dijcretion, which is 
 an abufe of the term, becaufe it is blind and un- 
 limited; for difcord between the accufer and 
 the judge j for endlefs confufion between rules 
 and principles, between expediency and right, 
 between legal and conftitutional -, for convert- 
 ing public accufers, and an open trial, into a 
 fcene of infult, and of torture, which the pureft 
 virtue could not efcape. 
 
 Combating thefe principles, with an impartial 
 zeal for triuh, but with a diffident fpirit, I have 
 feparated the reafons from the eloquence that 
 clothed them in a robe of magic, which not only 
 adorned, but confecrated them. Ingenuoufly wilh- 
 ing to deprive the argument of no weight that 
 was due to it, I have caught, perhaps, the mere 
 J B b points
 
 ( '36 ) 
 
 points of it, their Jubftance, arrangement, and con- 
 neffion, though in a very few lines. 
 
 Protefling ^gainft the competency of an in- 
 ference to whaf is juft, from what is expedient, 
 (though we are told that convenience is jttfti 
 prope mater,) I have yet anfwered this popular 
 challenge, putting feveral cafes, (none of them 
 I hope, extravagant,) in which the continu- 
 ance of trial by impeachmmt, after a diffolu- 
 tion of parliament, would ftrike with infinite pre- 
 judice at the liberty of the fubject, and with a 
 death's-blow at the accufer's difcretion, which is 
 an eflcntial part of his right, and of his truft j 
 -would enable the king to guard his minifter with 
 lefs indecorum, and would give him a more 
 ample field of power, in the perfecution of a 
 meritorious culprit. 
 
 I have then grappled, as well as I could, with 
 all the other topics, in fupport of this vote, arif- 
 ing from the nature of parliament, and from the 
 nature of impeachments. I have met, and re- 
 fifted, the new doctrine of a parliament ajleep, 
 and wakened by the king; the inherent right 
 of a peer (equally new) to demand, without ce- 
 remony, his judicial character, as being infeparable 
 from his robs, in the houfe of peers ; the legal 
 organ of the people, in their function (or " privi-
 
 C 187 ) 
 
 n kg f "} f accu ^ er > which is alive, it feems, 
 and has a pulfe (like fwallows in the winter) be- 
 tween one parliament and the next, be the in- 
 terval ever fo long ; the comparifon of this legal 
 organ to an attorney-general - t and the right of 
 impeachment, confidered as privilege. Here 
 too I have fuftained, as I hope (not againft ri- 
 dicule, but againft any juft imputation), a doc- 
 trine, which I avow to be a rooted part of my 
 political faith and creed ; " that by the conftitu- 
 <f tion of this government, the commons of Eng- 
 <f land, in parliament aflembled, have an inde- 
 " pendent mind, inftead of being agents, in any 
 ct fenfe of the term, either to their local elector, 
 tc to the conftituent at large, to the people out 
 " of doors, or to another houfe of commons ; 
 < that it is the duty of their feat, and reprefent- 
 " ative character, to act for the general and real 
 ce intereft of that popular claim upon the go- 
 " vernment, which they perfonate j but with a 
 " fenfe of honor purely their own i with a dif- 
 <c cretion of their own-, with a political fenti- 
 <f ment of men, or meafures, equally unfettered '; 
 <f and with fuch ideas of conftitutional freedom, 
 cf as their own refearches, habits, or feelings, 
 <c may have prompted them, bond fide, to en- 
 " tertain, in direct oppofition (if their con- 
 " fcience makes it neceflary) to the wifhes, and 
 B b 2 " pofitive
 
 ( 188 ) 
 
 * pofitivc injunction of the electors, or to the 
 " teftamentary admonition of departed repre- 
 " fentatives." 
 
 And I hold this doctrine to be that of as true 
 a whig, as any in the houfe of Cavendijh, Ruffell, 
 or Eentick. I have called upon Mr. Burke for 
 bis countenance to this faith, by the maniieft in- 
 dependence of conduct that his public life has 
 ever marked j when, addrefilng his electors, he 
 communicated, in better language, the fame 
 ideas which, in mine, expofed me to ingenious, 
 but ill-founded ridicule, and, moft unfortunately 
 for me, in the moft eloquent fpeech that has 
 been heard. 
 
 I have combated the mifapprehenfion (as I 
 took the liberty of fuppofing it) which gave to 
 the commons of England, or of the realm, a con- 
 tronl over the commons in parliament, as public 
 accufers, becaufe every impeachment is in the 
 fiame of them both ; an illuftration, as I con- 
 ceived, of my own principle j inafmuch as all 
 the authority which is imparted by the name of 
 thofe prouder commons, who are emphatically 
 defcribed, " of the realm," is given to their 
 Jubalterns, the commons of Great Britain in parlia- 
 ment ajfembled, with an abfolute power to make 
 ufe of that name, as their own. You, Sir, ufmg 
 
 the
 
 the <c ardentia verba" that imprefii your fend-* 
 ments with fuch force upon us, have told us, that 
 we> the commons, have in ourfelves, by fome- 
 thing livelier than reprefentation, by " exprefs 
 " image," the " feelings of the nation" Thac 
 we have, by the conititution, a general credit 
 for thofe feelings, I admit ; but that a fympathy 
 of thofe feelings animates all our meafures, or 
 opinions, and principles of government, is not 
 even our theoretical boaft : It happens, for 
 example, that your profecution of Mr. Haftings, 
 in which the fenfitive delicacy of honor, that 
 ihould be national^ as well as perfonal, was deeply 
 at flake, found the public at large completely 
 indifferent ; I was generally anfwered, " we 
 tc don't care about him :" The diftance of the 
 Jcene was, in part, the occafion of that indif- 
 ference j but another, and more powerful caufe 
 of it was, that pretence for idlenefs which moft 
 of us too readily embrace ; this, called itlelf 
 " the difficulty of the fubjeft ;" which, to thofe 
 who were not initiated, was tc chacs and old 
 cc night:" What effect your brilliant perfpi- 
 cuity in developing Indian politics, complicated 
 as they were, may have produced upon the na- 
 tional feelings, better inftrufled, it becomes not 
 me to fay. 
 
 I have marked this independence of character 
 in the commons, with peculiar anxiety, where 
 
 it
 
 it authorized, and obliged them to difclaim the 
 influence of their predecefibrs, to refufe their 
 moft confummate afts, either pafied without the 
 afifent of the other eftates, or with it, if to any 
 conceivable extent fhort of the legiflative power. 
 
 I have traced the fame character as extending 
 hfelf to orders of any kind ; even to orders 
 for the fupport of their privilege, a point, in 
 which their conftituents, and the next houfe of 
 commons have an equal intereft : orders, de- 
 liberately formed, and exerted with fpirit, buc 
 either left incomplete, though in the minuted 
 part of them, or incompletely executed. I have 
 reminded the public, of that jealous conftitu- 
 tion, that will not Juffer the next houfe of com- 
 mons, to difgrace their calling, by a confidence 
 in thefe meafures, taken up at the 'point of their 
 interruption ; or if they were in $<nam> fuffer 
 the object of them to be touched*. 
 
 * The idea of a feptennial change in the reprefentatives, 
 does not originate in the fuppofition of a national judgment, 
 that will influence the old and the new alike; but in the direft 
 reverfe in the policy of changing the men, by way of guard 
 againfl their abufe of power. Minorities and majorities are 
 often tranfpofed by this general appeal to the eledor, and 
 the legatary intereft of an impeachment againft Mr. Pitt, if 
 tfierc had been fuch a meafure, it would have been perfeft 
 ridicule to name, with a reference to this irgan of the people^ 
 &c. at the opening of the hit parliament. 
 
 I have
 
 I have diftinguifhed the commons in parlia- 
 ment from an agent of any kind, from an attor- 
 ney general in particular, who may be difplaced 
 by a fudden breath of caprice, or of party, at 
 leaft ; and who is bound by the ads of his prede- 
 ceflbr, becaufe they are both of them treated as 
 mere agents of the king, who has bound bimjelf 
 by the words, or the afts of his agent, for the 
 time. 
 
 I have ftated what appears to my underftand- 
 ing, the foundeft argument that can be offered 
 upon the general principle, as refulting from the 
 f ourfe of parliament ; a variety of inftances, 
 amounting, in their number, and value, to a 
 general principle-," that no chain of pro- 
 " ceeding can be taken up, and continued, by 
 ct either houfe of the legislature, in a parliament 
 cc that is new, though in points of the moft criti- 
 " cal importance to the welfare, and fafety of 
 * f the kingdom." 
 
 I have traced the admitted rule as to bills 
 which had pafied botb houfes of parliament; 
 and I have traced it, not as an exception, or as a 
 technical rule, ftrifti juris, and with an obfcure 
 origin j but as a marked illuftration of the gene- 
 ral principle, which is raifed upon many other 
 jnftances of a fimilar nature -, indeed, ujfon all, 
 
 this
 
 ( 19* ) 
 
 this of impeachment alone cxcepted if it is an 
 exception. 
 
 I have argued as forcibly as I could, becaufe 
 it was in fupportofan honeft opinion, from a 
 bill of attainder, where the culprit of ftate 
 is, in a peculiar degree, an object of natural 
 punifhment, where the commons unite a.judi- 
 cial to a legiflative character, where the recourfe 
 to billy proves it the only way to reach the 
 culprit, for offences which may touch the vital 
 fecurity of the government. I aflced, and 1 afk 
 again, if Mr. Haftings had been a favourite 
 minifter of another fovereign, of Charles the fe- 
 cond, for example ; and if the legiflative trial 
 had lafled, as it might have done, for three years, 
 what an eafy tafk would the admitted conftitu- 
 tion have put into the hand of that fovereign, 
 juft after the lords had pafied the bill, to end 
 the parliament, and clofe that proceeding for 
 ever ? 
 
 Having thus cleared my way, firft, of the 
 general principles, either as introductory guides 
 to the debate, or, as bearing directly upon the 
 conftitutional fenfe of a depending impeach-- 
 ment, I have next followed you into the 
 ujage of parliament, which is an admitted, and 
 eflential part of its law. 
 
 I have
 
 ( '93 J 
 
 I have adj ufted here, the onus prolatiefi -, in- 
 filing, that as the continuance of impeachment 
 after evidence bedtd by a former court of the 
 peers, has never happened in faff j and as any 
 continuance of it muft be a perfect anomaly, 
 with a reference to the general principle, it was 
 for them who affirmed that continuance, to fill 
 up this blank, by evidence of, at leafl, indirect, 
 and collateral ufage, whofe analogy would reach 
 the cafe before us. 
 
 I have touched upon the political argument 
 of difabling a minifter to elude an impeach- 
 ment -, and have reverfed the hypothecs, by 
 Chat of a king adverfe to a popular culprit, a dif- 
 carded minifter for example, and at the head 
 of a powerful oppofition, in a corrupt hotife of 
 commons ; the accuier tired, or frightened, by' 
 the popular clamour the evidence clofed on 
 both fides the diflblution of parliament by an 
 obvious fineffe enfuring his punifhment at a fu- 
 ture, and more commodious period, " with all 
 <c appliances y and means to boot" 
 
 I have protefted againft the unequal, and par- 
 tial juftice, which is, in other words, no juftice 
 at all, of imputing to the commons an exemp- 
 tion from the human accidents of defpotifm, 
 .intrigue, and corruption; but, giving the mo- 
 J C c nopoly
 
 ( '94 ) 
 
 nopoly of thofe infirmities either to the fove- 
 reign, or his minifter. Here, as in many other 
 parts of the work, I have taken pride in the 
 idea of a tempered authority, in which a mu- 
 tual, and jealous vigilance againft the abufe, or 
 afiumption of right, guards all the power of 
 government, and is the beft of all fecurities for 
 the governed*. 
 
 I have barely touched upon the analogies of 
 law, in other, and, as they are called, inferior 
 courts j becaufe I knew, how fliy the layman 
 is (unlefs when he has political occafion for 
 them) of thefe analogies, and becaufe I really 
 did not feel that I wanted them, unlefs where 
 the moft obvious good- fenfe annexed, and united 
 them to the law of parliament, fo as to make 
 them in principle one and the fame. 
 
 > 
 
 I have marked the neceffity of confulting fre- 
 cedentSy and of confulting them deeply -, refufing 
 the paradox which called itfelf by the name of 
 <c privilege*" and confined the infpection of 
 journals to the houfe of commons, in which no 
 judicial precedent could be found. 
 
 * " Pour qu'on ne puiffe abufer du pouvoir il faut que 
 " dans la difpofition des chofes k pouvoir arrete kjouvoir." 
 
 MONTESQUIEU. 
 
 I have
 
 ( 195 ) 
 
 I have compared the two precedents of 1678 
 and 1685, fummarily at firft, but extended the 
 enquiry as to both, into the character of the age 
 in which thofe orders refpectively iffued. I have 
 examined hiftorically, the actual view, and ufe 
 of the order 1678, followed, and preceded by 
 various acts of cruel injuftice, levelled at the 
 Earl of Danby in parliament. In fhort, I have 
 proved, as I think at leaft, the whole fyftem of 
 thofe tranfactions political, and corrupt, or at 
 the beft, as having paffed in times that could 
 almoft be defcribed, " flagrante bello" 
 
 I have met the new argument, new I mean, 
 as facing the light, which has built the order 
 of 1678 upon a fuppofed analogy to that of 
 1673. The reader will judge for himfelf, upon 
 this refined analogy, after the diffection of it 
 which I have taken the liberty of preferring to 
 his view. 
 
 I have difcrimmated the effect of impeach- 
 ment upon the difcretion of bail in " the courts 
 *< below" (as we, members of parliament, call 
 them,) an effect, which has been argued as 
 proving " the continuance of impeachment, 
 " even in the eye of law, when parliament is no 
 * c more." I have explained in what refpect this 
 right of bailing is neutral, and in what other 
 1 C c 2 view$
 
 views it rather injures than aids the fuppofition 
 of a " defending impeachment." 
 
 I have flated the cafe of Blair, and the ca- 
 tholic peers in 1690, with all the candour, and 
 particularity/ that could bed enable the reader 
 to form his own conclufion. 
 
 I have admitted the force of the argument, as 
 far as it goes, refulting from the order 0/1701, 
 \vith a view to the Duke of Leeds j but I have 
 limited the extent of it, by the natural effect of 
 the judicial affs preceding it ; and I have, at 
 leaft, as I hope, replaced the authority of thofe 
 judicial atts> by Lord Oxford's caje> upon the 
 footing of its reference, and analogies. 
 
 I have made a fhort, but, I hope, fuperfluous 
 apology, for that liberal, and ufeful profefiion, 
 which I confider, (though few have gratified in- 
 genuous ambition lefs in it than myfelf ) as the 
 moft honourable part of my exiftence ; and 
 which, as a relation of Lord Somers told you, 
 with as much truth as manlinefs gave to us tbe 
 Revolution. 
 
 I have next offered, and perhaps obtruded, 
 an independent, as well as cordial teftimony, to 
 ycur public fpirit that of the minifter of the 
 
 parliament
 
 ( '97 ) 
 
 parliament and of the age in this profecmion 
 of Mr. Haftings. I have commended impeach- 
 ments in general, with a zeal which I felt ; but 
 1 have taken the liberty of adding, what *l co.n- 
 fider as the demand of an impeachment upoa 
 the accufer and the judge, in their mode of con- 
 duping it, with a view to the national boner, and 
 even to the political wifdom, at flake in it. 
 
 Forgive, Sir, this attempt at a general re- 
 view of my own argument, contained in thefe 
 letters to you ; an attempt which I have made 
 for the purpofe of convincing, in a few words, 
 thofe who are familiar to the debate, that I have 
 taken up moft of the topics, if not all of them, 
 which had been prefled into the argument there; 
 and, at the fame time, in order to delineate 
 what appears to me a correct method of treating 
 the fubject:, in point of arrangement. 
 
 Your character, Sir, is really fo eminent in 
 
 fame of more kinds than one, that it would be a 
 
 degree of impertinence for me to commend it. 
 
 13 On
 
 ( '98 ) 
 
 On the other hand, there is nothing more difin- 
 genuous than violent, or unqualified praife: 
 Though to expatiate on the faults of a celebrated 
 perfon, is at once invidious, and mean. I hope 
 it will be admitted, that I have treated your pub- 
 lic name widi refpect j the obligations of the 
 public to many of your c.ffbrts, with gratitude ; 
 and the purity of your intentions, in which I 
 have always confided, with efteem : but without 
 prejudice to that ingenuous freedom, which en- 
 ables even me to oppofe many of your fenti- 
 raents, whether exemplified in your words, or in 
 your conduct. 
 
 From the reader (\djhouldbtread) I am 
 the moft anxious to obtain this comment upon 
 my work ; <f that I have written as I thought, 
 " and felt; that I have Hated the adverfe ar- 
 <c guments to my own, with candour ; that I 
 ** have not been flippant againft any of thofe 
 " with whom I have differed j or ill- tempered ; 
 or too confident in the refult of my own en- 
 quiries." If he Ihould then tell me, <f that 
 <f I have been fortunate enough to refcue the 
 * c minority of December 23, 1790, from a cur- 
 c rent opinion of their diftrefs for the want of 
 " liberal, or conftitutional fupport ; and that I 
 u have opened the fubject fairly to a difpaf- 
 
 " fionat
 
 ( '99 ) 
 
 <c fionate review " I fhall be overpaid for the 
 time thefc enquiries have occupied, and for the 
 painful folicitude of the mind engaged in them. 
 
 I have the honor to be, 
 S I R, 
 
 With infinite refpect and efteem, 
 
 Your moft obedient fervant, 
 
 GEORGE HARDINGE. 
 
 BEDFORD-SQJJARE, 
 4th April t 1791.
 
 UNIVERSITY OF CALIFORNIA AT LOS ANGELES 
 
 THE UNIVERSITY LIBRARY 
 This book is DUE on the last date stamped below 
 
 JAN 1 3 1959 
 
 DEC 2 2 1958 
 
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 QEC192003
 
 473.5 Hardinge - 
 A series o; 
 letters to 
 
 Edmund Burke * 
 
 \PR 
 
 DS 
 
 473.5 
 H21s