the misfortune to violate the constitution and to suffer for that offence, we shall find that all those calamities which befell, not only them, but the nation, arose from the corruption of judges, by whose ministeriality and servility, the course of law was suspended, and the people's franchises invaded.

Edward II. had a time-serving chief justice whose name was Baldock; the old historians call him a false and pieled clerk; he died in prison from the rough reception the people gave him as the officers were conveying him there, by which the hangman was defrauded of his due. Richard II. had also a chief justice equally time-serving called Tresillian, who met with his deserts in a more regular way, for he was hanged, and Bethnap and others of his worthy compeers were banished. Charles I. had no less than a whole bench full of time-serving judges, all of whom subscribed to the legality of ship-money, for which they were not punished quite equal to their deserts; but his ministers Laud and Strafford, who acted as judges in his high commission courts, were executed. James II. had a noble limb of the law in Judge Jefferies, who also defrauded the hangman. I might mention also many corrupt and time serving judges in other reigns, as Scrogs, and Empson and Dudley, and Thorpe, and Wayland, who after judging others, were themselves judged. Rapin informs us (vol. ii. p. 759, folio ed.) that " the "judges received orders when they

went their circuits to use all their

authority for confirming the right "assumed by King James II. of "dispensing with the laws; and they "executed (he adds) these orders "with extreme rigour and inso"lence."-Those judges, whose duty it was to maintain the law, and who had taken an oath to maintain it against the King himself, used all their influence upon their respective

VOL. VIII.

circuits to make the people believe that King James was above the law, and could dispense with it whenever it pleased him so to do! If Sir Nash had lived at the period of the revolution, would he have thought it a grievous crime to arraign the opinions of those judges! But if our present judges are impeccable, those judges must have been so likewise! Will not the doctrine of impeccability go a hundred and twenty three years back? If it will not, then it is a modern thing indeed! A new light suddenly fallen upon us, and all judges who pretend to this novel illumination are bound methinks to explain to us which way they came by it.

If there is a country in the world, where the opinions and decisions of a judge ought to be exposed to free investigation, it is England; for the office of an English judge is “jus dicere," and not, "jus facere:" he is not to make the law, but to administer that law which has been handed down to us from our ances tors, and constitutes an Englishman's best inheritance. This inheritance it is incumbent in every Briton to understand: he ought not to accept whatever it pleases any of the king's ministers of justice (for the real judges, properly speaking, are the jury) to tell him is his birthright. No! his birthright is a thing stable and immutable, and not to be influenced by any man's construction whatever. Thus Lord Coke says, "albeit judg "ments in the king's court are of "high regard in law, and judicia

are accounted as jurisdicta, yet it "is provided that if any judgments "be given contrary to any of the

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points of the Great Charter, or "Carta de Foresta, by the justices, or any other of the king's ministers, "it shall be UNDONE and HOLDEN "FOR NOUGHT."-This declaration of his lordship's is grounded on the statute 42 Edw. III. made for the purpose of confirming and irrevo

Tt

cably establishing the Great Charter: the first chapter of that act de clares, that" if any statute shall be "made hercafter contrary to the "Great Charter, it shall be HOLDEN

FOR NONE:" and the second chapter says, what has been just quoted from Lord Coke. In short the franchises of an Englishman are not to be infringed by the act even of King, Lords and Commons, which, in all points not deterinined already by Magna Charta, is law; it is highly fit therefore that these franchises should not be left to the discretion of a judge; and it is still more fit, and even highly necessary, that Englishmen should freely investigate the decisions of their judges, otherwise how are they to know whether they are conformable to Magna Charta, or not? The doctrine of implicit confidence in judges, reminds me of a similar doctrine so often made use of by the popish clergy, who would not allow the common people to read the Scriptures, and try, by that standard, the truth of those doctrines preached to them; no, they were to receive such doctrines implicitly without question or enquiry of any sort; and just so it appears would certain judges have persuaded our countrymen to receive their decisions: they are not to be compared with Magna Charta, and by that standard to be discovered whether they are true and constitutional, or whether they stand accursed, and ought to be holden for nought. The reader will remember that our forefathers implored the most bitter curses on all who infringed the Charters in general, and especially on all those who shall presume to judge against them: it is clear therefore that every judicial decision against the tenor of the Great Charter, is not only void in law; but also stands anathematized by the solemn imprecations of those to whom we owe our exis

'tence.

I will not conceal Mr. Editor,

that I have been led into a more ample discussion of this subject, by the consideration that our judges, will soon have to decide a point in which the most valuable franchises guaranteed to us by the Great Charter is concerned: what will be the result of that appeal to the court of King's Bench no man can tell; but this I will maintain, that it may benefit, but cannot injure the party who has thought fit to seck redress there: be the decision what it will, it cannot injure the people of England; for as we have just seen, no judgment in any of the king's courts, can deprive Englishmen of any of those franchises, secured to them and their posterity for ever, by means of the Great Charter.

Let us now return to the thread of our enquiry: King James the Second's judges, not only pronounced to the people, that the King by virtue of his prerogative might suspend the law, but, (which would be incredible were it not well authenticated) the whole profession made to his Majesty, the same declaration. The society of the Middle Temple, on the 11th of June, 1687, the very year preceding the Revolution, presented, says Rapin, an address to his Majesty, in which they approved all he had done under pretence of prerogative: they further declared, "That the king's prerogative was "derived from GOD himself, and "that no carthly power could re"strict or diminish it:" they concluded, by "assuring his Majesty "that they unanimously resolved to "defend, with their lives and for

decisions of a judge, never supposed, to be sure, that the "swinish mul"titude," would have sense to discover, in the statute book itself, a criterion to direct their conduct in respecting, or rejecting, such decisions.

by no restrictions; in brief, a pure unmitigated despotism. Had the nation at large entertained no juster sentiments of the constitution, than the honourable society of the Middle Temple, we should have all been, at this instant of time, "hewers of wood and drawers of water," to the descendants of King James II! Surely after such a trait as this, the good people of England will not be very ready to pin their political creed upon the sleeve of a lawyer. Exceptions there are no doubt in every age, to the general rule drawn from the common time-serving disposition of lawmen: there were even at that day, when the society of the Middle Temple thus degraded themselves, glorious characters in the profession; —a SOMERS, a HOLT, a TREBY, a MAYNARD, and a PowEL, just as we had in the last age a PRATT, and have now an ERSKINE, the latter of whom has declared, "THAT "HE WOULD SOONER DIE THAN LIVE UNDER ANY OTHER DOMINION THAN THAT OF THE LAW!" These luminaries shine the brighter for the disk that in general obscures the profession: they afford no reason however, why Englishmen should not be suspicious of crown lawyers, who have done more harm to their liberties than any other set of men whatsoever. Had these situations been always filled by popular elcction, as once they were, it is very likely that not a drop of that blood would have been spilt, which our generous ancestors so freely poured forth in defence of their own, and our franchises. There were great chorts made in Edward the Second's time to restore that ancient practice; had they been successful, it would perhaps have not been necessary in the next reign to pass the act before alluded to, by which all judgments contrary to Magna Charta are declared to be " void in law!" Those who now preach to us the doctrine, that we must implicitly receive the

Much may be said in mitigation of the offence committed by prerogative against the franchises of our land, which cannot be urged in extenuation of the same offence committed by privilege. Our kings were told that their prerogative was derived from God himself: the men of God quoted many texts of Scripture to prove it, and the men of the law added their sanction to confirm the imposture; the latter were far more culpable than the former, because their own legal records taught them the contrary. Thus we may say prerogative stood with one foot upon the Gospel and the other upon the law, both corrupted, and rendered subservient to its views by their ministers and professors; no wonder that it was so saucy and so arrogant; and yet it had its fall! With all these advantages it could not triumph over the Great Charter of our liberties: what expectations then can privilege entertain of so mighty a conquest? The house of Lords originally exercised a trust reposed in them by the people; the more modern part of that assembly owe their existence to that prerogative which so vainly attempted to subvert our franchises. The pretensions of the house of Commons are still more slender; that house can pretend to no authority derived from heaven, conscious, as it must be, that all its power is delegated by the people, and for the express purpose of maintaining popular rights, not of subverting them. They are the creatures of the people's choice; how incongruous then the attempt to unmake those who have made them! -to deprive those of the benefit of the law who have given them their

lawful authority? Can it be supposed that the people will ever submit to be outlawed by their own delegates and attornies? The power that can withhold the law from a British subject must be greater than the law itself. When that power boasted a celestial origin; when it was supposed to be conferred by God's own hand, and the person who exercised it was generally regarded as the Lord's anointed, it is no wonder that it inspired awe and reverence, in superstitious times; but who, I should be glad to know, Mr. Editor, has anointed the members of the house of Commons, or even of the house of Lords? who but friseurs and valets de chambre, ever put any oil or essence upon their heads? will otto of roses serve as a substitute for the virtues contained in the Sancta Ampulla?* The

* The Sancta Ampulla or Sainte Ampoule in France, claims a priority to ours, for it was brought from heaven full of balm by a dove, when Clovis was baptized at Reims in 496 by Saint Remi himself! There were once in France,

knights of the order of Sainte Ampoule,

who wore a mantle of black taffeta, on which was embroidered a golden cross, charged with a dove, holding in its beak a small phial, with a hand extended to receive it. Our Ampulla is kept in the Tower, and is in the form of an eagle of pure gold, out of whose beak the oil is first poured into a golden spoon, and thence on the head intended to be rendered sacred. To this it may not be improper to add the argument used by parliament against Charles the First's right of prerogative, which he said was settled and established by God himself, on him and his posterity. They argued says Acherley, p. 504, "That that set"tlement must necessarily appear by ❝some evidence either written or un"written, and therefore he ought to "shew some evidence how God himself "had settled this particular nation and "the people and their persons and es"tates on his Majesty and his posterity;

and that if such evidence could be shewn, then the gift and settlement of his Majesty's rights by God himself,

celestial essence may perhaps be less grateful to the olfactory nerves than the modern perfume, but its virtues are far more indelible. "Not all the waters in the rough rude sea," says our great dramatist, " can wash the balm from an anointed King." To what Mr. Editor can we compare this heavenly balm which seems to have stuck to the head like pitch, and to have penetrated to the very bone? Is it not natural, Sir, that it should have produced an effect upon the inside of the cranium as well as the outside? Is it not natural Sir, that it should have produced a sort of divine delirium about the region of the brain, which might make a man suppose himself a celestial vicegerent, the delegate of heaven, instead of men, and by a natural consequence conceive himselfexalted above, aye, far above, the law. This in my humble opinion, was the true origin of this law dispensing phrenzy; it was a sort of maggot bred in the royal brains by the effect of the holy oil; but how this disorder came afterwards to light upon the heads of the other two branches of the legis lature is a point not so easily ac counted for: however there is a pas sage, Mr. Editor, in Lord Clarendon's history, which seems to throw some light on this mysterious circumstance. "A man shall not unprofitably expend his contemplation that considers the method "of God's justice, that the same principles, and the same applica"tion of those principles, should be "used to the wresting all sovereign power from the crown, which the crown first made use of, for as

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"would be not only justifiable, but "indefeazible; whereas such rights as "wanted the confirmation of the people "must necessarily be defeazible, for the "nature of a confirmation was to make "that firm and good, which before was "deteazible and defective, which could "never be said of a settlement made by God himself."

Such was the nature of the contest between Charles and his parliament, the one armed with prerogative, the other with privilege, and both treading under their feet the law and constitution of their country. There is one phrase in this quotation particularly deserving attention, and that is, "God's Justice!" Lord Clarendon, tory as he was, considered it as an interposition of divine justice, that he, who wrenched the law to deprive others of their rights, should be dispoiled of his own by the same means.

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The first instance of parliament assuming the privilege of interrupting the course of law was in the case of the arrest of the five members; we have Lord Clarendon's authority for this fact, and a better there cannot be; he says," the house never sends, at least never did send "till this parliament, any order to "the court, out of which the process issued to stay the proceedings "at law, because the privilege ought "to be legally pleaded" indeed his lordship adds, "there is, there can "be no privilege of which the law "doth not take notice, and which "is not pleadable by, and at law."t

In short, it is easy to see that privilege was, in that day, nothing more than protection: it was defensive armour until the unjust attacks of the crown made parliament convert it it into an offensive weapon. Still however, this weapon was first used in behalf of the people's rights; the arrest of the five members was a grievous infringement of the constitution, a direct violation of the Great Charter, as may be seen by Acherley.*

It is the general consequence produced by a departure from fundamental institutions, that one excess produces another; thus the innovations upon the constitution, arising from an inordinate stretch of prerogative, produced a similar innovation on the part of privilege, which, though first applied to resist despotism, has at last become the instru ment of another despotism equally intolerable, but happily far more easily corrected, for the remedy rests with the people themselves. They have the law and the charters; the constitutional standard remains the same; let them bestow their confi dence on those only who are content to rally round it: privilege will then return within its legitimate limits, as has been the case with respect to prerogative, for it is not proper that either should be exter, minated: what we ought to desire 1s, that their excesses only should be corrected, and the constitution by such means preserved,

I remain, Sir,

Yours, &c. TIMOTHY TRUEMAN,

Devonshire, Nov. 10.

British Constitution, p. 490, and

* Hist. Vol. I. p. 542. + Vol. II. p. 397 and 398.

sequel,