republicans and the lawyers appear to me wholly mistaken, as to what it is possible for the law, judicially administered, to accomplish; as well as what the constitutional law of this country has provided for cases like that which has occurred. It is not in human nature. possible to frame a government without leaving a certain power, not indeed arbitrary and wholly without rule, but discretionary, and to be exercised within certain rules, according to circumstances. The peculiar character of the English constitution is, that that portion of discretionary power is shared among the several constituted authorities, instead of residing in one; and the chances of an improper exercise of it are lessened, by the checks which are thus established. The doctrine of the lawyers, and that of the republicans, tend to the establishment of a simpler frame, whether of democracy or monarchy, in which they would speedily find that there would still be a discretionary power somewhere lodged, and that the universal dominion of the law would still be disputed, as the judicial law would still be inadequate. The only plan that has yet proved successful, in confining this discretionary power within proper limits, is that system of mutual controls, which results from the partition of this power among the several branches of a mixed government.

My view of parliamentary privilege is this, that it is not a law to be applied (like the rules of criminal justice) to every case that occurs, and which is brought before the court, but a discretionary power, to be exercised or not, and to the full extent of the rule, or much short of it, according as it shall, upon a view of all existing circumstances and probable consequences, appear to be useful and necessary, or otherwise, that such an interposition of authority and punishment should take place.

But then I have another doctrine, that this power is not unlimited and undefined, but of limits and a definition which may be certainly known, by consulting properly the records of parliamentary customs and usage. I think the House of Commons has an ancient and most necessary criminal jurisdiction, excluding all other courts, for the punishment of offences committed against itself and its members as such; and whoever will read the Rolls and the Journals, in the spirit with which all precedents ought to be studied, (not to square the circumstances of particular cases, but to extract the principle which is implied in all of them, the principle which was aimed at in the precedents of good times, and which, in those of bad times, was made the pretext of violence,) will have no difficulty in collecting the evidence of this right of jurisdiction, as well as its fixed and due limits. I cannot at all approve of the doctrine, which Mr. Ponsonby quoted the other night, with approbation, from Blackstone, that it would be inexpedient and hazardous to the independence and authority of parliament to have its privileges defined. They seem to me to be all very plainly defined already, as much as things of that nature can be; and if they were not, I should think it most wise to give them at length that definition. We have defined prerogative, which was, perhaps, a bold experiment in government; the success of it may satisfy us that there is no hazard in bringing privilege, if it be yet to bring, within the bounds of legal description. But by legal description, I do not intend a statutory enactment, and still less the more narrow conception of the law as administered in courts of justice, but in the manner practised in all ages by parliament, by a resolution of the House itself.

I have no manner of doubt, that the Judges in West

minster Hall will recognise this privilege in the present instance. They are bound, by the law, to recognise it; and unhappily the present instance of its exercise comes from that quarter, with whose feelings they are always found too uniformly to sympathise.

Ever yours,

FRA. HORNER.

LETTER CLVI. TO J. A. MURRAY, ESQ.

My dear Murray,

Lincoln's Inn, 11th June, 1810.

Before the inhabitants of Edinburgh are scattered into the country, I wish very much you would take some opportunity of sounding them upon the question of Scotch Parliamentary Reform. The longer I live, I become the more keen on that subject; both because I become daily more convinced that there is no part of the kingdom which would send more useful representatives than Scotland would, if there were a popu lar choice; and because it is manifest that none of the other great objects can be gained for Scotland, such as jury trial, until you have more active representatives. The measure will never be carried without a very decided opinion in favour of it, indeed a strong call for it from Scotland; such as there seems to have been, before the excesses of the French revolution stopped the progress of all our political improvements. I know there is no such anxiety upon the matter at present; but one should like to feel the pulse, and guess, whether by administering proper materials, the fever could once more. be brought on. ****

Yours most affectionately,

FRA. HORNER.

LETTER CLVII. TO J. A. MURRAY, ESQ.

My dear Murray,

Lincoln's Inn, 26th June, 1810.

The Report of the Bullion Committee is not yet out of the printer's hands; so that those who praised it to you were liberal enough to bestow that praise upon credit. I can let you into the secret, however, that the Report is in truth very clumsily and prolixly drawn ; stating nothing but very old doctrines on the subject it treats of, and stating them in a more imperfect form than they have frequently appeared in before. It is a motley composition by Huskisson, Thornton, and myself; each having written parts, which are tacked together without any care to give them an uniform style, or a very exact connection. One great merit the Report, however, possesses; that it declares, in very plain and pointed terms, both the true doctrine and the existence of a great evil growing out of the neglect of that doctrine. By keeping up the discussion, which I mean to do, and by forcing it again upon the attention. of parliament, we shall in time (I trust) effect the restoration of the old and only safe system.

The story you heard of Lord Erskine and the Prince had some foundation; but was exaggerated, and the scene was mislaid. There was some argument between them about privilege, at a dinner at the Foundling Hospital, which was magnified by Erskine's enemies into a sharp and angry dispute. But I understand it was at a private dinner that the retort you allude to was made by the Prince, who, when Erskine said the principles he maintained were those which had seated H. R. H.'s family on the throne, said they were principles which would unseat any family from any throne.

I have no idea that there is any serious displeasure felt by the Prince against Erskine on this account; though Erskine has not left it to this day for him to prove, that rather than yield his public opinions he is ready to encounter that displeasure. His opinions upon this occasion are, I think, quite erroneous; his prejudices as a lawyer, perhaps an itch for popular favour, perhaps too a dislike of the House of Commons, all conspire to lead him wrong. The House of Commons was not his theatre of glory; he was perpetually losing there the fame he won in Westminster Hall.

I am more surprised at Romilly having erred, as I cannot but think he has done; and I regard it as a striking proof, how difficult it is for a man, whose mind is trained in the course of administering justice, especially if he be a lover of liberty, to allow the propriety or necessity of any thing like discretionary power being left anywhere. Both the habits of a lawyer's mind, and the sentiments which compose one's love of liberty, are in favour of the simpler system of constant and known rules and forms for every case that occurs; and the true theory of freedom is, unquestionably, to carry that principle as far as possible. For my part, this question came upon me by surprise: I hesitated a good deal, before I acquiesced in the doctrine of privilege, to the extent to which I would now be prepared to state it; but I am satisfied now, after as accurate a view as I can take of what is the real necessity, that it is necessary for the efficient existence of the Commons' House, that they should be entrusted with the discretionary privilege of punishing, by commitment, those who either obstruct or libel them.

I regret deeply that Romilly is on the other side of this great question; it weakens both the claim of privi