A
LETTER TO THE
RIGHT HONOURABLE
LORD ERSKINE, ON THE
INCONSISTENCY
OF HIS
PUBLIC CONDUCT AND OPINIONS.

BY HUMPHREY FRANKPLEDGE.

" A fire is often kindled with a little straw, which oftentimes takes hold of
greater timber, and consumes the whole building." RALEGH,

LONBOm
PRINTED FOB C, CHAPPLE, 66, PALL MALL.

1810,
[Price 2s. 6d.]
5^

LETTER,

MY LORD,
J- HERE are times and seasons when it
would be almost criminal for a man who has
any regard for his country to hold his peace ;
or from any motives of respectful delicacy to
wards others, and of diffidence in himself, to
let the indiscreet conduct of his superiors pass
without notice and animadversion. When that
conduct has a tendency to encourage bad prin-
ciplesj or to give a colour and sanction to bad
practic-es, it becomes a paramount duty in
every honest citizen to remonstrate boldly with
the persQn who debases himself by courting the
a-pplauses of the vicious, or lends the authority
of his name and opinion to the clamours of the
discontented and factious part of the commu
nity.

3
We are unhappily fallen upon such an evil
time, and so portentous is the aspect of the po
litical iiorizon at the present moment, that the
strongest minds cannot help being astonished at
the presmiiption with which the most venerable
institutions are, assailed ; while the meek and
contented members of society are, alarmed at
the violence which disturbs the public peace,
under the pretended plea of promoting the pub
lic good. ' , ,
For the space of twenty years has the Con-
liheRt of Earope been shaken from one end to
the other by a succession of the most tremend
ous convulsi()ns, occasioned by that revolution^;
ary volcano, from whose crater has pOured
forth an overwhelming torrent of burning lavei,
which has driven from its ancient and legitimate
channel the stream of social order and national
intercourse, dried up the genial springs of politi-
cal confidence, contaminated the atmosphere qf
civilized life, and reduced the once extensive re
gions pf fertility and happiness, to arid w-astes
of desolation and misery. , ;

3
Placed very near the spot. where this political
phenomenon has reared its frightful head, as
yet we have Happily known it only by the re
port of its thunderings, and an occasional view
of its alarming coruscations ; by hearing its ex
plosions, and marking its destructive operation
upon all the countries within the reach ' of its
fury. From our insular situation, and by virtue
more especially, under Providence^ of-our, well
balanced Constitution, powerful to preserve the
public weal, and secured from the means of do
ing wrong, we have hitherto remained without
internal commotion to shake our security, or
external injury to diminish our strength.
So circumstanced, then, and with such fearful
examples before their eyes, it was scarcely to
be supposed that the people of this land should
be insensible of their happiness — that they
should regard their own situation with stupid
indifference, or that any among them would be
B 2

4
induced by persuasions of any kind, to venture
the loss of present security for problematical
advantage. But unfortunately we have seen, and it is our
lamentable lot to behold, a spectacle far worse
in a moral view, and as it affects our own nati
onal character, than all the ravages which law-^
less usurpation has eiFected on the Continent;
we see a people more higbly favoured than any
under Heaven, careless about the preservation
of that which renders them the objects of won*-
der and envy to nearly all the other families of
the earth.
This ungrateful spirit has not been a tempo-
porary paroxysm of enthusiasm ; the effect of
delusion and surprise, which considers a sudden
revolution as certainly beneficial, without wait
ing for a trial of its consequences: but it bas
spread and become more general, even when
the delusion has vanished, and left a- dreadful
scene of real miseries m its stead. This evil

5
spirit has held its place, and continues t-o in
toxicate men's minds, even in the face of woeful
experience, £^fid when the most convincing proofs
have been manifested of the folly and danger of
political changes. The lapse of years has not
been sufficient to cool the ardour of absurd ex
pectation ; neither has the, sight of accumulated
evils, committed under the pretence of liberty,
been able to check the empiricism of the politi
cal speculatist, or to cure the morbid imagina
tion which converts the means of health into
poison, and views all that is calculated for the
good of man in society, as dishonourable to his
nature, and destructive of his happiness.
As, however, there necessarily must be in
all communities a mixture of the weak and the
wise ; the good and the bad ; and as the con
dition of pubUe affairs can no more remain
always the same than that of private life, a
spirit of discontent will undoubtedly sometimes
prevail, of which the vicious and cunning, who
are most commonly the authors, and al\\ay.s the

6
fomenters, never fail to take a foul advantage.
To complain of objects which limit our pro
spects, and of restrictions iwliich regufete our
course, is one of the allowable infirmities of hu
man nature, placed as it is in a variable state ;
and to be suspicious of those who exercise do
minion over us, begins w ith the first dawning
of the kuman mind, and is never extinguished
till pscssioH itself has ceased to exist. Such being
the constitution of Iman, pity is unquestionably
due to those who, from the want of judgment, or
by giving way to delusive statements, fancy that
there are rights and blessings beyond their pre
sent condition, and of which they have l>een
unjustly deprived.
We ought to commiserate rather than be
angry witb that obliquity of intellect, and im
patience of disposition, inconsequence of which
so many of our fellow-creatures are led to judge
harshly of the system by which they are go
verned, and to imagine that their condition
would Joe greatly improved, if the .Legislative

7
Authorities were abridged, and the Executive
Powers reduced.
Such mistaken notions, generally arising from
abstract principles, and made feasible by artful
application, are'very apt to get possession of well-
meaning minds ; and being more easy to be un
derstood, and to make an impression, than the
demonstratiorus by which only they can be coun
teracted, it is no wonder that they obtain ex
tensive credit, and are reasoned upon as m^axims
of moral and political verity.
The ease and advantages which men possess,
only serve to fix these notions deeper in their
minds, and make them view the Government
in a false light; as "a machine which maybe
managed with little trouble, and comparatively
at a small expense. They look upon the whole
through a false medium;- and taking their own
judgment, with the graduations which it forms,
as their only rule, they begin to condemn every
thing which is bcj^ond its measurement, as

8
monstrous; aH which they cannot comprehend,
as superfluous ; and rules and .privileges, orders
and distinctions, of which they have no distinct
conception, as so many ihfringenients of popu
lar rights, and the assumption of arbitrary
power. The very liberty and ease which men enjoy,
will incline them to be thus querulous ; and
where the judgment is narrow, and prejudice is
strong, the disposition to censure all that is
above them, becomes almost a part of their
nature, and cannot be set right without great
labour and difficulty. ^
Thus in ordinary life we not unlrequently see
men who, by their own industry, or by the
provident care of their ancestors, have obtained
krge estates, become, by enjoyment, and for
Want of more to desire or to labour for, so Un
conscious of what they really have, as to ima
gine themselves absolutely poor, and in danger
jaf a-gaol, or of ending their days in a work-house.

9
^iven persons of so disordered a mind, and
affected by a ipalady originating in a great
measure at least, if not wholly, in their own
folly, are entitled to pity, though the relation
of their complaint is apt to excite a smile of
contempt. But Avhat would be our thoughts of that pre
tended friend, or medical practitioner, who
should endeavour to feed this preposterous dis
ease, and instead of attempting by every argu
ment to remove this delusive impression, should
swell the chimerical tumour to such a pitch by
misrepresentation, as to render the patient still
more miserable, by convincing him of its reality?
Surely, whatever sentiments of compassion
we might be inclined to entertain for the man
so whimsically possessed, we should be fired
with indignation at the treachery a;nd disho
nesty of his deceiver.
, This is by no means a fictitious case : it has

10
too often occurred; and perhaps the 'natural
history of man cannot furnish 'a more lamenta
ble instance of human imbecility.
But how strange and unaccountable soever
this species of self-delusion may be, and how
ever much a consideration of it tends to abate
our pride and to moderate our desires, it is ex
ceeded by that political mania Avhich sometimes
rages throughout a whole community, and sets
men raving abotit the loss of liberty and pro-
pert}^ in the midst of unbounded licentiousness
and luxury.
This also is a common evil, and it is ren
dered more common by the oflGfcious friendship
of pretended Patriots, and the zeal of half
witted Politicians, who devise nostrums for the
cure of disorders that never had an existence,
and plans of amendment for that which they do
not undterstand.
By such men, every slight occasion of com^

u
plaint is made a matter of serious lamentation ;
the unavoidable errors of the best intentions are
distorted into crimes of the most heinous 'mag
nitude ;, and even the necessary exercise of ju
dicial authority is stigmatized as an act of ty^
rannyi The iniquity of these deceivers is of the
most malignant dye, and merits the severest
censure; since its object is , to produce, not an
individual,. but a public misery; not an incur
able disorder in one man's intellects, but a ge
neral madness, which may overthrow what no
virtue or energy can ever restore, and for which
no combination of human wisdom can, possibly
provide an adequate substitute.
They have just sense enough to do mischief,
and sufficient skill to know hov/ to cheat the
simple part of a Nation into a belief that they
are in a most dangerous condition, through the
evil conduct of those who are at the head of
affairs. ¦

12
" He that goeth about to persuade a multi
tude," says the judicious Hooker, " that the^
are not so well governed as they oiight to be,
shall never want attentive and favoiii'^ble
hearers, because they know the manifold de
fects whereunto every kind of regimen is sub
ject ; but the secret lets and difficulties, which
in public proceedings are ihnurheraible and in
evitable, , they have not ordinarily the judg
ment to consider. And because such as openly
reprove supposed disorders of State, are taken
for principal friends to the common benefit of
all, and for men that carry singular freedbmof
mind ; under this fair and plausible colour,
whatsoever they utter passetb for good and
current. That which wariteth in the weight of
their speech, is supplied by the aptness of men's
minds to accept and believe it*^."
, It would be doing injustice to the reason of
any sober-minded man, to allege cases in sup-
* Eccks. Pol. b. i. p. 70, ed. 1705.

13
port of these renjArks, because the continue^
experience of our own times brings home .the
conviction of their ^truth to our §enses ^very
moment, and from every quarter.
But it, unfortunately happens, and ffeouently
too, th^t ..even the evidence of obvious truth
does not; , make men sensible of falsehood ; and
thpugh ,they admit the force of incontrovertible
principles, yet pa^sjion and pride, selfishness
«and prejudice, y^ill, in spite of common sense,
carry them away ijnto the regions of error.
This self-deception is so common in ordinary
life, as to be the cause of one half, at least, of
those aberrations in conduct which make men
caiitiousand suspicious of each other, and mi-
.serable. to, themselves. But the worst conse-
quence of this spirit of delusion is, that men
who contrive thus to cheat their own under-
, standings,, become most anxious and assiduous
in their endeavours to deceive those around
them ; and for the purpose of gaining credit to

14
their own perversions, they will ofteri express^
their approbation of the most extravagant and
pernicious distortions of other men.
In the. career of politics, this departure frorrf
the plain and steady principles of iiioral truth,
is still more frequent; and what is rather diffi
cult to be accourited for, it meets with encou
ragement even from persoriff who, in other re
spects, set a. correct example of regular deport
ment, and whose pride (if it may Jae called so)
is to maintain the lofty distinction of being
above every species of artifice. But if we were
to observe narrowly the political course of these
honourable and right honourable personages,
we should often find even them driven by the
current of popular opinion, or by the wrong
bias which prevails in their own minds from
what they would pronounce, in an impartial
moment, to be the only straight line of moral
and political rectitude ; so that while -they are
flattering themselves on account of their sup
posed integrity, it would he seen that much ^bf

15
their boasted consistency and steadiness has
been a traverse according to all the points of
the compass.
I will not here make any application of these
observations to one of your Lordship's charac
ter and station ; for though my object is partly
to accuse you of giving way too much to the
dangerous errors of the time, yet it is my aim
also to convey salutary advice to others, some
above you in rank and talent, and some many
ways your inferiors in both.
Of party distinctions I know little, and car^
less. These are considerations which will never
have any weight with a man who is far removed
from the temptation, as he is above being ac
tuated by the desire, of ranging himself on one
side or the other^ — who can view them both
with perfect indifference as long as neither the
men in, nor those out of Administration, ma
nifest a disposition to abridge the power of any
part of the Constitutional or to try vain, expe-

* 16
rimettts upon its , componeat princi|rlfis ; in
^Wt, <8he ^Writer is one of so Qld-6,shioaed 9
make, as to be tenaciously desirous ^f .retain
ing that entire, under which all classes among
us have -^experieaaced the fullest security jand
hap^piness which man in society can reasonably
wish for ; ignd who considers, ;that.to loiik.for
iHore woisM be a most presumptuous cupidity.
'With such a conviction ,as this, and , th^t
fetrengtihened' by a little reading of. what our .an
cestors thought and did , to preserve .; this bul
wark of our national glory, he can view the op-
'pesitien bf mere parties, : vrithout .feeling, any
very liyelyittt^rest in the cause of either „sjde ;
^s long,' indeed^ as their contest, is constitution
ally maintained,
' Undoubtedly' th-ose men are inost entitled, to
regard, and will obtain the greatest i degree of
confidence with considerate minds, who disp^y
the least parade of ostentatious- patriotism ; who
deal little in political chicanery ; and above all,

ir
whose public and private carriage mark a real,
internal sense of virtuous sentiment and reli
gious obligation. In all other respects, party
names and distinctions are too trivial to merit
the slightest notice ; and therefore, whether you
are a Whig or a Tory, deserves no more con
sideration than the question would, whether in
philosophy you are a Cartesian or a Newtonian.
It should seem, however, that in your own
judgment, such distinctions are of primary im
portance ; otherwise, at a season like the pre
sent, you certainly would hardly have signified
to a motley assembly, calling themselves the
Whig Club, that at this great crisis it was your
resolution to stand forward as the friend of
liberty, and of the rights of tlie people. That
such a communication was made in your name
¦to this Tavern Meeting, cannot be doubted ; for
the Journals which are in connexion with that
Club, stated it explicitly, and mentioned your
Son as the bearer of. the important message.

D

18
No man has a right to call you to account
for being the associate of a Club, or to deny
you the privilege of making speeches over a
bottle ; but the community at large • are war^
ranted in condemning you, for making such de
clarations as have a tendency to alarm the peo
ple, by inducing a belief that their liberjLies are
in danger, arid that the preservation of them
requires the aid of your transcendant virtue and
powerful talents.
At the time when this declaration was trans
mitted to the Club, what had been done to call
for. a pledge of so much pompous solemnity ?
In what imminent peril was the Nation placed
by the conduct of Government, as to render it
necessary for you to send a profession of that
nature to a self-constituted Assembly, without
authority, or even the dignity of character to
give a sanction to its resolutions ?
Your being a Member of such an unaccre
dited Association, is a matter of no concern to

19
the public, and it would be impertinent to cen
sure you for attending its festivals ; but this act,
done evidently with no other view than to be
made generally known through the medium of
the press, can be considered in no better light
than as a mean trick to catch popularity, when,
in fact, no danger could be apprehended ; un
less, indeed, it was from the very quarter
towards which you were looking for a little
paltry applause.
The rights of the people have not been
affected by the committal of an idle scribbler,
for libelling the House of Commons ; neither
has the Constitution been violated, because that
branch of the Legislature has thought fit to
exercise its power over an oflfending Member :
" a power," to use the words of a great writer,
" which necessity made just, and precedents
have made legal."
But it was not enough to send a vaunting
¦ostentatious declaration of your sentiments to a
d2

20
Political Club, for the purpose of having it sent
forth to the world, as your judgment upon that
which has the prescription of ages for its sup-i
port, and the highest legal authorities for its
sanction; — for while the question, as arising out
of the present case, remained for decision, you
presumed to obtrude your crude thoughts upon
it in the most elevated Assembly of the king
dom, without having any lights to guide your
mind, or the subject being properly before you,i
to call for the expression of your opinion.
It is hard to say which was most indecorous —
the communication of a presumptuous declara
tion to the Tavern Association, or the premature
obtrusion of a hasty determination upon a grave
matter in your pubhc character, when the cir
cumstances of the case, the honour of the Le
gislature, the safety of Government, and a re
gard to the public tranquillity, ought to have
combined in recommending you to hold your
peace, till the subject came regularly and fully
under discussion.

21
The occasion, however, was too tempting,
and your vanity and thirst for applause too
strong, to admit prudence and deliberation into
your councils. Silence, at such a time, and
upon such a subject, might indeed have gained
you credit with the wise and moderate part of
society ; but then it would not have obtained
for you the clamorous plaudits of tumultuary
meetings, the high praises of civic orators, and
the panegyrics of the vehicles of faction.
What course the House of Commons intended
to take, upon a matter which, for the time,
solely concerned their own character, power,^
and privileges, could not possibly be known,
till the Committee appointed to search for Pre
cedents had made their Report ; and till some
Resolutions should be in consequence founded
theteon. While, therefore, the question thus remained
suspended, and no line of conduct was resolved
upon by the party immediately concerned, it

certainly was no more than common justice in
all men, and particularly in one of your profes-^
sional character and high station, to preserve a
i^ilent respect for ^he deliberations of that great
Assembly. You might surely, have waited, without, any
derogation of your abilities, or danger to the
interests of the pubfic, till the whole case was laid
out on both sides, and till especially the deter-
mination of the House bf Coriamons gave every
man a legitimate right to form and express his
opinion upon the wisdom and equity of its pro
ceedings. . '
Such a degree of riiodest forbearance was
certainly due to the high dignity of that Legis
lative Body, which would be a mere pageant
without authority, and contemptible, if "'de
prived of power to make that authority regard
ed-. Instead, however, of setting a becoming
example to the people, by patiently reserving
your judgment, and calrbly w'atehing the pro-

23
gress of this great cause, until you had accu
rately vifewed it in all its parts and bearings, you
ventured to take up the question, and to give
your advice upon it, before you knew, or could
well guess, what the Committee of the House
of Commons would report as the result of their
research^ and' what the House itself would
afterwards determine to do in maintenance of
its Privileges.
I will not presume to say, that you had no
pariiamentary right to deliver your- sentiments
in the manner, and at the time you did, upon
this topic ; but it will be a difficult thing for
the steadiest advocate of free speaking to say,
that such a premature declaration as this, was
any proof of moral or political wisdom.
It deserves particular attention, that the
Speaker's Notice was made to the House of
Commons on the very night when you delivered
your sentiments so very peremptorily upon the
whole merits of the case. That same evening a

24
Committee was appointed to search for Prece
dents, audit was not till the 23d that their Re
port was ordered to be laid on the table, and
printed. Notwithstanding all this cautious delibeiration
on their part, so precipitately did you malie up
your mind upon the question, as to advise a
judicial determination of it before the Com
mittee had commenced their labours, or were
even nbminated to make a Report, as a g/cound
to regulate future proceedings.
I know not in what light this condcjct has
been generally regarded ; but it seems that those
who immediately witnessed it, preserved a be
coming and dignified silence, by suffering the
observations and advice to pass without notice.
But the effects of this early and public decla
ration of your . opinion ha^e been very great
elsewhere ; and a sort of oracular importance
has been attached to it, by the swarms of Poll-

25
tical Reformers, which, in this age of declama
tion, render almost every Corporation a petty
republic of noisy orators.
ft-
This shews with what extreme caution men
of elevated station, or of professional eminence,
should guard their minds, and regulate their
language, upon subjects which are apt to dis
tract the people, and to create jealousies of the
Government, Your subsequent explanation on the 14th of
June, in the Debate upon Earl Grey's Motion,
is a full" confirmation of the wisdom and justice
of such a cautious reserve; fbrin the Reports of
your Speech on that occasion, you complained
of "having been much misrepresented as to the
opinion you delivered on a former night. At
the time of expressing that opinion, you was
under a belief, it seems, that the House of
Commons did not intend to plead, or to inform
the Courts of Law of the cause of the Arrest ;
and it was under the influence of this feehng
E

26
that you pronounced that opinion. Since that
time, however, you found that they had plead
ed to the Action which had been brought
against the Speaker; and this made (you ob
served) a most essential difference in the case."
It is very extraordinary, that while you thus
complained of being misrepresented, you should
in the same breath confess, that the opinion be
fore delivered by you, was pronounced under
the impulse of feeling, without information or
judgment. At that time, according to your own
account, you did not know what course would
be adopted ; and yet you then presumed to be
lieve, without any Vv'arrant for such a persua
sion, that the House did not intend to plead ;
but since you found that they had pleaded, it
was confessed that your feehng was wrong, and
that a most esseritial difference was now made
in the case.
But M hy, I must repeat it, did you not wait
till the case was clearly explained and under-

27
stood ? And why, it may be asked, was a pre
sumptuous feeling, whhout any facts or reso
lutions for its justification, to be attended to
rather than the entire conduct of the party
against whom the expression of that feeling must
eventually operate? The advice of a grave
morahst, whose book, though obsolete, affords
lessons of sound instruction to Senators and
Judges, would have been useful to you upon
this occasion. " Blame not before thou hast
examined the truth : understand first, and then
rebuke. Answer not before thou hast heard the
cause; neither interrupt men in the midst of
their consultation*." ¦
Had this sage counsel prevailed in your mind,
instead of the hasty* feeling which prompted an
erroneous opinion, that has been received with
tj-iumph, and circulated with the greatest in
dustry all ' over the kingdom, you \vould nol
have fallen under the censure of meddling with
things above your understanding.
» Eccles. xi. 7, 8.
E 2

'28
Having ingenuously confessed that your first
Opinion was founded upon a false belief, I might
be spared any farther trouble of remonstrating
with you upon the subject; of entering into any
refutation of your mistaken principles, or of
pointing out the mischievous tendency of them.
As, however, the authority of your name has
given a wide credit to very delusive notions,
and the most extravagant theories on the sci
ence of Government, and as the sanction of
your opinions still prevail to a considerable ex
tent among those who, while they despise an
cient wisdom and experience, are willing to be
guided by modern authority; it may be render
ing some service to the sober part of the corii-
munity, to expose fallacies and inconsistencies,
which will evince the danger and folly of taking
things upon the tinist of high' sounding preten
sions. At the time when your feelings produced a
precipitate judgment upon a matter which was
then no proper subject of discussion, you meii-

29
tioned the case of the committal of Lord Chief
Justice Pemberton, for holding a plea of the
House of Commons in his Court; and, in your
strong manner it was added, " that if, upon the
present occasion, a similar attack was made
upon the present noble President of that Court,
for the exercise of his legal jurisdiction, you
would resist the usurpation with your strength,
and bones, and blood."
A little more reading might have been ser
viceable to you, before you ventured to tell
this story, or to make such a vehement protes
tation, arising out of another of your hasty
suppositions. This case has not been fairly stated, and the
character of the person mentioned, was different
from what it has been represented. Pember
ton, so far from being Chief Justice when he
appeared at the bar of the House of Commons,
bad even ceased to be a Judge near seven years
before this committal. He was made a Justice

30
of the King's Bench, March 30, l67^ Chief
in the same Court, April 1681 , removed to the
Common Pleas, January 22, 1682-3, and turn
ed out from that situation in September fol
lowing*. The offence of which he had been guilty, and
for which he and Jones were committed after
the Revolution, was a violation of the Privileges
of the House of Commons, in the arbitrary
reign of Charles 11.^ by over-ruling the plea of
that House, and setting its authority at defi
ance ; no doubt in subservience to the Court.
The character of Pemberton, as drawn by
one who knew him well, may serve in some
measure to relieve this dry exhibition of dates
and facts; and it will, convince the reader, that
his case and circumstances might as well have
been passed over in silence on . this occasion,
especially by those who are so tenacious of Le
gal Jurisdiction over Parliamentary Privilege.
* Salinon's Chrondli'gicalllisloiian, vol. i,.

31
Roger North, in the Life of his namesake,,
the Lord Keeper, gives the following account
of this amiable personage :
" The Lord Chief Justice Pemberton was a
better practiser than a Judge ; for being made
Chief Justice of the King's Bench, he had a
towering opinion of his own sense and wisdom,
and rather made than declared law. I have
heard his Lordship say, that in making law, he
had outdone King, Lords, and Cojnmons. This
may seem strange to such as see not the beha
viour of Judges, and do not consider the pro
pensity of almost all to appear wiser than those
that went before them. Therefore, it is the
most impartial character of a Judge to defer to
eldership or antiquity. But to proceed : this
man's morals were veiy indifferent ; for his be
ginnings were debauched, and his study and
first practice in the gaol. For having been one
of the fiercest town-rakes, and' spent more than
he had of his own, his case forced him upon
that expedient for a lodging : and there he made

32
so good use of his leisure, and busied hiriiself with,
the cases of his fellow-coUegiates, whom he in
formed and' advised so skilfully, that he ' was
reputed the most notable fellow within those
walls, and at length he came out a sharper in
the law. After that he proceeded to study and
practice, till he was eminent, and made a Ser
jeant. After he was Chief Justice of the King's
Bench, he proved, as I said, a great ruler, and
nothing must stand in the way of his authority.
This Chief Justice sat in ,the King's Bench till
near the time that the great, cause of the Quo
Warranto against the City of London, was to
be brought to judgment in that Court ; and
then His Majesty thought fit to remove him.
And the truth is, it was not thought any way
reasonable to trust that cause, on which the
peace of the Government so much depended, in
a Court where the Chief never shewed so much
regard to the law as to his will, and notorious
as he was for little honesty, boldness, cunning,
and uncontroulable opinion of himself After
his rem'oval he returned to his practice^ and by

33
that he lost his styh of Lordship, ftnd becanl^
bare Mr. Serjeant again*."
With this character Bishop Burnet Agrees,
who accuses Pemberton of having acted un
fairly in summing up the charge, when he pre
sided at tiie trial of the unfortunate Lord Rus
sell f.
So much for this notable Serjeant, who, after
the enactment of the Bill of Rights, was called
to account' and punished, for having in the
plenitude of his power, ' and in a corrupt reign,
trampled on the Privileges of Parliament.
Now if it were possible that a similar charac
ter could he again placed in that high station,
and should presume to act as Pemberton did,
would any Englishman, think you, presume to
cry hira up as a Patriot, or be warranted in
* Nprtb'd Life of Lord Keeper Norlb, vol. ii. p. 122.
t Hi'stovyof his Own Tiroes, vol. ii. pr. 3^6.
F

34
exerting his strength, bones, and blood in his
defence ?
Of the impartiality and wisdom of our Law
Courts, as they at present exist, no one can
entertain a higher senfse, or a more reverential
regard, than myself; yet I must contend, that
their poVers are distinct from, and inferior to,
those'of Parliament ; consequently, that they
possess no right of judicial resolution upon any
bf its Privileges.
The less is necessarily included in, and sub
ordinate to, the greater ; and therefore it is re
pugnant to every principle of' common sense,
that the Legislative Powers should be bounded
and directed by those authorities, which are
only their administrative organs.
,It has been admitted by yourself, that what
either branch of the Legislature has been for
the course of ages exercising with the acqui
escence of the whole Legislature, would be, in

- 35
the absence of, Statutes, which is the grand
question, evidence of the Common Law of Par-
liament, and as such, of the Common Law of
the Land.
This is sufficiently sound and explicit : why,
then, after this, treat the right as doubtful,
which has been acted upon with the acqui
escence of the whole Legislature for a succes
sion of ages, and which ne^^er was conceded or
set aside, except by the arbitrary jurisdiction of
a venal Court, in one of the worst periods of
our history ?
I cannot here resist the pleasure of quoting
the apposite argument of a powerful writer,
whose judgment was equal to the magnitude of
the subject, and whose reasoning upon it is un
answerable, /
" Here," says he, " the Patrons of Opposi
tion are in seme perplexity. . They are forced
to confess that, by a train of Precedents suffi-
y 2-

36
cient to establish a custom of I'arliament, the
House of Comm.bris has jurisdiction over its own
M^ejnbers ; that the whole has power over indi
viduals ; and that this power has been exer
cised, sometimes in imprisonment, and often in
expulsion, " That such pqwer should reside in the House
of Commons, in some cases, is inevitably ne
cessary ; since it is required by every polity,
^hat where there is a possibility of "offence, there
should be a possibility of punishment. A Mem
ber of the House cannot be cited, for his con
duct in Parliament, before any other Court ;
and therefore, if the HOuse cannot punish
him, he may attack with impunity the rights
of the People, arid the title of the Kiiig.
" This exemption from the authority bf the
other Courts was, I think, first established in
favour 'of the Five Members in the Long Par-
liameflt. It is not to be considered as an
usurpation, for it is implied in the principles bf

37
Government, If Legislative Powers are not
co-ordinate, they cease in part to be Legisla
tive ; and if they be co-ordinate, they are un
accountable ; for to whom'must that power ac
count, which has no superiour ?
** The^House of Commons is, indeed, dissqer
luble by the King, as the Nation has of late
been very clamorously told ; but while it sub
sists, it is co-ordinate with the other povvers;
and' this co-ordination ceases only wheri the
House, by dissolution, ceases to subsist.
" As the particular Representatives of the
People are, in their public character, above the
controul of the Courts, of Law, they must be
subject to the, jurisdiction of the House; and
as the House, in the exercise of its authority,
can be neither directed nor restrained, its own
resolutions must be its law's, at least, if there is
no antecedent decision of the whole Legis
lature*."

* Dr. Johnson's false Alarm, p. T.

38
The same train of reasoning may be extended
still farther, and be supported, too, by the
adduction of numerous cases, which prove that,
by the acquiescence of the whole Legislature^
the House of Commons has the right of punish
ing by imprisonment, all who are guilty of tres
passing upon its Orders by, Libel or Contempt.
Whatever freedom of speech, or of writing,
any subject ma^^ be entitled to exercise upon.
Parliamentary Proceedings, he must be limited
by the rules of that Court on which he ventures
to publish his opinion. There must be a boun
dary here, as well as , to every thing else ; and
if a man goes beyond it, by whom shall he be
punished ? If no such power exists in a Legis
lative Assembly, it becomes a pageant of au
thority, and <5nly the instrument of making
fews, without having the means of enforcing
obedience to~them.
If the Parliament, during its sittings, had no
summary powers of committal for Contempt, it

39
tvould be exposed to continual 'interfaptions
from within, and insults from without, its walls;
its councils would be restrained by menace, or
embarrassed and impeded by perpetual appli
cations to Courts of superior jurisdiction.
All it? procefedi.ngs are liable to misrepresen
tation ; and as few of its Acts pass without some
kind of opposition, either from the spirit of
party, or' from motives of private interest, its
deliberations, if unprotected, must be a perpe
tual contention with the unrestrained- paSsions
and prejudices of the people.
It is said, however, that this powder of impri-
soning for Libel and Contempt, during the sit
ting of Parliament, may be abused to the pur-
povses of injustice; and that persons oppres.sed
by it are, in such a case, without redress. To
this it is sufficient to answer, that the possibility
of abuse is inseparable from . the nature of hu
man society, and therefore no form of Govern
ment, nor any of its institutions, can be free
from' the common infirmity.

40
No authority under Heaven cari be esta
blished without being liable to this imperfec
tion ; and as a seat of final decision must neces
sarily be placed somewhere, to prevent eternal
litigation, this ultimate Court of Appeal, how
ever wisely it may be constituted, or worthily
filled, cannot be kept free from the possibility
of error.
Even the Trial by Jury, for which you are'
so strenuous an advocate, and of which you
have been considered by. some persons as a sort
of. Guardian, cannot possibly be kept entirely
free from abuf e.
Ignorance and prejudice are, at least, as
likely to givie a wrong bias to the minds of
twelve men, however carefully selected they
riiay be, as to a great public body consisting
of some hundreds.
. Indeed the Law itself, for this very reason,^
has exempted some cases from the determina
tion of a Jury, and, of course, has given to its

41
Courts the exercise of a discretionary power,
without requiring the Verdict of a Jury upou
them. You are fully aware of this ; and in the
very Court where you presided, you found thg
power established, and acted upon, and with
out which, indeed, the authority of the Court
woiild be nugatory. But it is very remarkabre,
that your great zeal for Trial by Jury, should
only liave abated when you sat as a Judge. It
may be considered as extraordinary, that one
who has made this subject the motto of bis
arms, and the darling principle bf his popula
rity, did not himself embrace the opportunity
of carrying it into practice, when he had to
decide between the exercise of his power or the
forbearance of it, wheji a case of Libel and
Contempt came under his cognizance. ^
Consistency is a virtue to which most persons
lay claim, and which public men in particular
must always affect, if they wish to be regarded.
Your Lordship lias consequently assumed a
large share of credit, for haying r^amt^imi thi.s

42
virtue inflexibly through the whole course of
your public life, and for having preserved the
same mind and. understaoding. firm and unal
tered to the present day.
Truly the claim is strong ; and if it can be
&lrly.made out, your fame will not rest upon the
fleeting applause of the existing generation, bat
will descend to fer distant ages, as a model of
virtuous patriotism, as well as of sterling arid
disinterested talent.
But this, like all Other pretensions to honou
rable distinction, must endure the test of a
strict examination. Where the assumption: is
of a public nature, and is brought forward
merely to sanction doctrines which have for
their object an effect upon the Legislature, it is
proper to judge, as well the quality of the claim
ant, as the value of his apiniofi.
In the present case this will appear the more
necessary, since the boast of consistency has

43
been made use of to give a pVeponderating
weight to your observations on the question of
Parliamentary Privilege, and to set your know
ledge in the Law, and uniformity of condudt, as
an authority against those who have presumed
to think that the House of Commons has full as
nmch right to commit for Libel and Contempt,
as any of the Courts of Law can have. Its
right surely rests upon as goc(d a foundation,
and is full as equitable as that of the Chancery
in which you presided, and where you took oc
casion very promptly, upon a Petition, and view
of the publication, complained of therein, to
commit the Authors, and Printer too, for Con
tempt. The Counsel for the Defendants alleged, and
'in my humble judgment with great force, "-that
the Petitioners had in this case a remedy at
Law." But here your Lordship interfered
with a very powerful argument, which was con-
- elusive. " A remedy at Law ! The subject of
this application is not the Libel against the Peti-^
G 2

44
tloner. The case of Roach tiersiis Garoun
(Atk, 46'9), and another there mentioned,) were
cases of Constructive Contempt, depending upon
the inference of an intention to obstruct the
course of Justice,"
This is plain, and to the point; and therefore,
if the course of public proceedings and legisla
tive business is to be obstructed by Contempt,
the offenders must be summarily punished, as
they were in the present instance.
I will not pretend to give an opinion of the
casfe as it stands in the Reports (Vesey, vol. xiii.
p. 269) ; but nothing can be more certain than
this, that the sentence, and the doctrine with
which it was accompanied, completely overthrow
all your declamation, and prove, as far as your
authority can prove any thing, the uncontrol-
able right and power of the House. of Commons
to commit persons for Libel and Contempt,
whether they are Members of the House or
not.

45
In this very case, though two of the parties
had an interest in the cause concerning which
the offensive Pamphlet was published, yet the
Printer had not ; and, therefore, he' muist be
supposed to stand in the same relation ta the
Chancery, as any Printer or Writer does to
the House of Commons, on whose proceedings
he is guilty of publishing a Libel, or of Con
tempt. The cases are sufficiently analogous, to
warrant our resorting to your arguments and
practice in Chancery, a,s a Refutation of what
you have advanced since on the subject of com
mittal for similar offences in other Courts.
You have admitted by act, and confirmed it
by precedents, that the High Court of Chan
cery has this power ; and as it must be allowed
by all men, that the High Courts of Parlia
ment are superior to every other, the same
power arid right -must be in them; for they have
often exerted it, and innumerable cases of it
are upon record.
Now, in whatever pther respects your claim

46
to consistency may be suffered to remain un
contested, here, at least, your practice and doc
trines do not agree ; and it will be extremely
difficult, even for your greatest admirers, to
reconcile what they now consider as the purity
of legal judgment, with the decision, that a
Judge may commit persons to prison for Con
tempt, and that too for an indefinite nme,
without a Trial by Jury.
It deserves to be mentioned also, that about
the same period, and at the instance of Sir
Samuel Romilly, you declared the right of the
Court to commit for a Libel ori its past Pro
ceedings, by a misrepresentation of theiri, in
the case of Macnamara and Parquharson,
though the exercise of that right was then
withheld from reasons of discretion*.
These instances are not produced for the
wirpese of contending the right of that Court,
* See a Letter from a Chancery Lawyer, in tjie Morning
fast of M»y 19, mo. i

47
or of questioning the propriety of your asserting
it as ypu did ; because from the nature of that
situation, and aided by every possible degree
of information, the cases must be completely
understood, and the seriousness of the offence
more apparent, than through the contracted
medium of even Official Reports.
Supposing that at this period any person,
during the sitting of Parliament, had presumed
not merely to reflect indiscreetly on some of
their Proceedings, but in a virulent pamphlet
endeavoured to bring the Legislative Authority
into general contempt ; would the House sp
attacked have supported its own dignity, by en
during the insult without notice .'* ^Should Par
liament, however, from prudential .motives, have
passed over a single instance or two in silence ;
would it have been justified to the whole Go-
vernment, and to the Nation, in bearing with
a series of Libels upon its constitution and cha
racter, its measures and members ?
The Ministry of which you made a part.

48
Iwould hardly have been §0 lost to all sense of
&ity, ami regard to the national honour and
wehare, as to recommend indifference under
such circumstances. What course, then, ought
the Parliament to have pursued in such a case ;
and what line of conduct would have oocurred
to your mind, or been recommended by you,
for the purpose of checking the present evil,
and of preventing its recurrence.'*
By looking into the case just cited, and con
sidering the readiness with which you exerted
the authority invested in yoir, there can-be no
doubt but that, in the other circumstances,
your advice would have been as decisive for
committing all the parties.
The rule by which you acted in one place,
must have presented itself to your mind in the
other ; and if it did not, I can feel no he.sitation
in saying, that the inapplicalion of it would have
betrayed either a shameful want of candour, or
a miserable want of judgment.

49
If the Privileges of Parliament are less than
those of the Court of Chancery, it is time that
the one should be extended, or the other
abridged ; for it is a reversal of the order of
things, that the Inferior should possess a greater
jurisdiction than the Superior. Suchj however,
is not the case ; and as both have the sarne
right to protect their proceedings,, so they have
a power to punish those who are guilty of tres
passing Upon them, without calling in the aid
of other Courts, which would necessarily imply,
what all Englishmen must deprecate, that Par
liament is accountable, in some degree, to the
King's Courts of Law.
I shair pursue this comparison no farther;
for this point must' be the inevitable conclusion,
if the raging doctrine be true, that the House
of Commous has no authority to defend itself
from Libel and Contempt, in any other way
than by the ordinary course of Legal Process.
And what might be the dreadful conse-
H

50
quence, if Parliament shbuld be thus shackled,
well deserves the serious consideration of those,
who are even now apt to complain of the in
creasing influence of the Crown.'
That this complaint never hi\d any real foun
dation during the present reign, I am not only
perfectly convinced ; but equally am I satisfiedj
that it was never seriously believed, even by
those who made the most of it, in order to
distract His Majesty's Council's, and to get into
the Administration ; fbr when they succeeded in
their object, things always went on in the same
course, and the Constitution continued as it was
found by them ; and so they left it to their
successors. This, however, would hardly be the case, if
the power of Parlianierit was to be taken away;
and if, in an evil hour, the House of Commons
should be left with only the shadow of autho
rity^ — -a melancholy and shrivelled monument of
former greatness.

51
¦ It might, indeed, pass resolutions of consi
derable magnitude ; it might speak loudly of
public evils, and even direct prosecutions against
offenders : — but ail muscular energy being dried
up, and the sinews of power contracted, the
utmost which it could possibly do, would be to
sit and complain, to order and be disobeyed,
I am aware that it will be said, you may im
peach evil Ministers, and proceed by informa
tion against Libellers, and other offenders ; but
as those who are inclined to suppose the worst
of the House of Commons, must allow us, in
our turn, to have our suspicions, and to express
our apprehension of consequences ; pray why
may not the L'Cgal Courts become corrupt, as
well as Parliaments prove oppressive ?
In fact, there is no method more direct and
certain to give the Crown an undue influence,
to render Government tyrannical, and. public
justice weak, than by stripping the House of
Commons of all jurisdiction. h2

52
Our ancestors well knew this ; and as they
were sensible that a Legislative Body, limited
m il3 duration, was therefor^ the natural and
best guardian of public liberty, they wisely and
cheerfully acquiesced in those Privileges, which
the enemies of order are now eager to destroy.
But these men, as v,as well observed of a simi
lar set in a former day, ." are high-flyers of
liberty . against Parliaments as well as Kings.
They would be absolutely free zmthout any yoke,
which is the English of the word Belial. But
they are the most fooled by him of any; he
leads them into perfect anarchy in quest of
liberty ! They make every mafi judge of the
Government; they are now for .the Lords
against the Commons, then for the Commons
against the Lords ; and then again for the,
People against both, and again for the Parlia
ment against the People. This is the circle of
Liberty, the wheel of Belial, wherein he puts
these turnspits to roast the People ' They are
always climbing the wheel, which turns under

53
them, and when they have done, they are jast
in the selfsame place where they began*."
There are some minds who will see only what
suits their own immediate feehng, and who
judge of things, and even persbns,' merely ac
cording to their own habits and connections.
Thus you have so long been familiarized to the
language of Reformers, as they are called, and
they have so generally established you as their
Legal Oracle, that it would be unjust to feel
any alarm of them and their views ; even when
their language is unec^uivocal, and their conduct
is marked by violence ! !
The broadest hostility is now .shewn to one
part of the Constitution ; and not long since,
the same description of men displayed their
animosity with equal violence against the other
branches ; and yet, after all, we are to consider
them as only beiiig a little over-zealous and
ardent in the cause of Reform !
* Rehearsal, or View of the Times, No. 407, folio,
1708.

54
There is a culpable good-nature, and' a repre
hensible wilful ignorance, both equally deserv-;^
iog the -severest animadversion, particularly
when the safety of the State niay be put in
peril by, the indolence of the one, and the stu
pid prejudice and. self-conceit of the other,
By such an indifference to the spirit of Party,
this Nation was once plunged into ail the hor
rors of a Civil War, which might have been
prevented, had all our Senators watched the
Opposition as vigilantly as they did the Go-
I'ernment. The Chancellor of Human Nature,
as one beautifully calls him. Lord Clarendon,
gives a remarliable account of these persons in
bis History of the Rebellion; and I quote the
passage at length, in the hopes that some of
my Countrymen will profit by the example, and
the instruction which it affords. '
" I know not," says the Noble Historian,
" how those men have already answered it to

55
their consciences, or how they will answer it to
Him who can discern their consciences ; who
having assumed their Country's trust, and it
may be, with great earnestness laboured to pro
cure that trust, by their supine laziness, negli
gence, and absence, were the fii'st inlets to those
inundations, and so contributed to these licenses
which have overwhelmed us. For by this
means, a handful of men, much inferior in the
beginning, in number and interest, came to give
laws to the major part ; and, to shew that three
diligent persons are really a greater and more
significant number than ten unconcerned, they,
by plurality of voices, in the end converted, or
reduced the whole body to their opinions. It
is true, men of activity and faction, in any de
sign, have tpaily aid vantages, that a composed
and settled Council, though, industrious enough,
usually have not, and some that gallant men
cannot give themselves leave to entertain ; for
besides their thorough considering and forming
their councils before they execute them, they
contract a habit of ill-nature and disingenuity

56
necessary to their affairs, and the temper of
those upon whom they are to work, that libera,!
minded men would not persuade themselves to
entertain, even for ,the prevention of all the
mischief the others intend. And whosoever ob
serves the ill arts by which these men used to
prevail upon the people in. general; their ab
surd, ridiculous lying, to w in the affections, and
corrupt the understanding of the weak ; and the
bold scandals, to* confirm the wilful; the bound
less promises they presented to the ambitious;
and their gross, abject flatteries, and applica
tions to the vulgar-spirited, would hardly give
himself leave to use those weapons for the pre
servation of the three kingdoms*."

^to"-

With such a glaring instance of tiie fatal
consequences of placing a false confidence in
men's political professions, and of despising the
beginnings of. Faction as eonteriiptible, I dare
not follow your Lordship as a guide ; nor can' I
take your opinion as a rule to judge of the real
* Hist, of the Rebellion, voj. i. p. 320.

57
principles and ends of our Political Reformers.
In truth, this historical fact alone, assisted by
a little insight into human nature, and an ob
servation of existing circumstances, sufficiently
warrant me in calling your wisdom, not in
tegrity, in question, , when yott ^ expressed it
as "your- belief, that there is no considerable.
body of men in the kingdom, nor even any in
dividuals, who have any farther object than to
obtain w^hat appears to them to be tlie essence
and the spirit of the Constitution.'^

' '1

I am not now to learn the necessity of inter
preting men's words by their actions; and on
this judicious rule there can be no difference
between us, unless it be perhaps in the fitne.ss of
its application. You seerti to have such a super
abundant confidence in the uprightness of the
present race of Reformers, as to attribute their
" mistaken opinions," and the '* a-rdent zeal,"
which they have displayed in the expression of
them, to the account of the warmth of their feel
ings for the Liberties of the Country.

58
Now, truly, how much I i»ay be d^po^ed
ito admire such fgeUngs, when they are pro-?
perly msmifested, ijt would be a false Uberalitjf
to judge favourably of the intemperate lan
guage, and violent conduct, -which characterize
men who arrogate to themselves the exclusive
tide of Patriots..
The bitterness of invective and tone of me
nace, which peculiarly mark the. parties whose
motives yon are inclined to think are so pure,
appear of a most alarming aspect at the pre
sent awful crisis, when the ejitire spirit and
energies of the Empire are barely sufficient tp
secure pur political existence, auiidjst the wreck
of nations.
What are the men who have suddenly assumed
this mighty part ; who, arrogantly calling themr
selves the People, dictate Law to the Legisla
ture, and . clamour for a ch^igiBj without der
fining their objects, or limiting their de»
mands ?

5fil
They are i^uch as-Cicero describes with having
pestered the Commonwealth in his time, under'
the pretence of reforming the State, and freeing
it from tyranny and corruption. Like those de
based Romans, these men have their Catilirie,
whom some men of property follow, with a view
of obtaining, from the cofifuSion produced by
him and his crew, the direction of the State.'
There are others, again, who- though op
pressed with debt, yet hope for power, arid who
aspire, at the chief management of public affairs;
imagining they shall obtain those honours by
throwing the State into disorder, which they
despair of getting during its tranquillity.
The fourth are a mixed, motiey, turbulent
tribe, "who have been long abandoned to a dis
solute course, and partly through idleness and
extravagance, are ripe for any desperate Revo
lution which may put them in the way of get
ting wealth and distinction, of which they have
no hopes from their own industry or virtue.
i2

6'a
, And such as these polluted our owtk land in
the seventeenth century ; and under the pre
tence, of removing civil and religious abuses ; of
restoring Parliament to its pristine purity, and
the whole kingdom to a state of glory — over-
W'heluied the country in blood and rapine, in
misery and usurpation. Even men of ability
and worth, of rank and riches, were found to
judge favourably of these men's motives, and
to encourage t^epi in their views aod labours,
till unfortunately they became the wretched vic
tims of their axvn credulity ; and many of
them perished with the King, whom they
loved for his virtues, and a Constitution, which
it was their original aim to support and im
prove. A man of the most brilliant talents', who
made no ordinary figure on, that great stage of
Reform and Revolution ; and who resisted the
Monarchy with a violence, which brought his
life in danger after the Restoration:- — MiLt
TON, whose name is so revered by the j?ealo.ts

61
for unbounded Liberty, thus describes the Pa
triots of his own day :
** They bawl for freedom in their senseless mood,
" And still revolt when Truth would set them free.
" Licence they mean, when they cry Liberty ;
*' For who loves thai, must first be wise and good:
" But from that mark how far they rove, we see,
^* For all this waste of wealth, and loss of blood."

THE END.

London: Printed by fi.'M'MiUan, ?
Bow Street, Coyent Cardon. S

Date Due
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