ordinary happiness, are the works which I bespeak from you for after-times, Believe me always affectionately yours, FRA. HORNER. LETTER CLVIII.* TO J. A. MURRAY, ESQ. My dear Murray, London, 17th July, 1810. I delayed saying any thing to you about our autumn plans, until the Judges had fixed the days of our Circuit, that I might know how much time we had to reckon upon. What I should most wish for, is to have a full week at some one place, where the walks and rides are fine, that we might pass such another time as at Crickhowel. I am but a torpid animal, when locked up in a carriage, and undergo so much violent locomotion in the course of the year, that repose is what I like best. I believe in this we feel alike. I should like nothing better than going for the whole of that month to some pretty neighbourhood in Wales, near the sea and the mountains, and taking a few books with us. I believe the best tract that has been published on the question of privilege, is Charles Wynne's; as much as I read of it seemed to me perspicuous and moderate. I have read no others. You will find me go great lengths for the privileges of the House of Commons, and particularly in that branch of them which has been lately called into question. The case came upon me by surprise, and I vacillated for a day or two, chiefly I believe from the weight of Romilly's authority, whose pure love of liberty I am thoroughly convinced of. But I fixed at last very hard, and this very privilege, which I admit to be in the exercise of an arbitrary power, appears to me altogether essential for the preservation of a demo cratic constitution. I must reserve till we meet, my arguments in support of this doctrine. In the meanwhile, I shall only say, that I think it rests both upon principle and upon precedents well understood. For in this, as in the law, there are precedents of all sorts; and if the argument were built upon them only, the most opposite conclusions might be presented in almost equal strength. The law of parliament, however, like the common law, consists not of cases, but of principles. As applied to the common law, this was a maxim for ever in the mouth of Lord Mansfield, who borrowed, I think, his usual form of expressing it from one of the best treatises that I know upon the law of parliament, the report from a committee of the House of Lords upon the great case of Ashby and White, which you will find in the journals of 1704, and in the third volume of Hatsell. Lord Holt is said to have drawn that paper. "The law of England, (it is there said, I think very philosophically,) is not confined to particular precedents and cases, but consists in the reason of them, which is much more extensive than the circumstance of this or that case." In the spirit of this maxim, the parliamentary precedents ought to be read in the Rolls and the Journals, extracting the principle involved in all of them, as being that which was aimed at in the precedents of good times, and which in bad times was used as the pretext. Like all discretionary power, it has been exercised more or less honestly at different periods, and more or less knowingly. For it is indispensable, in my view of this privilege, to remember that it is a branch of executive discretion; and is by no means to be regarded in the light of a branch of criminal judicature, where every case of offence that occurs must be tried. Each case of privilege, on the contrary, presents a question of expediency, how far upon a view of all actual circumstances and probable consequences it is useful to make such an interposition of authority. There is a very fine passage, which you must remember, in Hume's history of Charles the First, in which he describes the novelty and boldness of the experiment which was made by the Patriots of the Long Parliament, when they established what he calls the noble but dangerous principle of adhering strictly to law, and removed, (as he represents it I think incorrectly,) all arbitrary power from the frame of our government. In the present question of privilege, we have chiefly to consider, whether it be possible to form a government, in which the dominion of the law shall be universal, and in which there shall be no remnant, in any part of the constitution, of a discretionary will. I confess it seems to me impracticable; though both lawyers and men of a republican cast of opinion, proceed without always declaring it, upon that supposition: the republican, as disliking all arbitrary will, and all complexity in the structure of government, the lawyer, from a similar love of simplicity in the distribution of authorities, and from an implicit confidence in the sufficiency and perfection of the modes and instruments of judicial procedure. To me, however, it seems, that all the arguments that are ever stated in favour of a mixed government resolve into a confession, that some power must be left to the exercise of a sound discretion, and that the only security for a permanent soundness of discretion is to be found in the partition of that power, and the check which results from mutual control. I find myself getting much deeper into the subject than I had intended, perhaps you will think already out of my depth. But I am delighted with Mr. Stewart's new book; with the style and the matter of it; delighted with it all. The composition is softer and more flowing than in his former writings, and has less of that emphasis and strain which gives a hardness to some parts of the Philosophy of the Mind. He is particularly satisfactory to me, in what he states with respect to Berkeley's speculations and those of Horne Tooke. Ever, my dear Murray, FRA. HORNER. P. S. Use all your influence with Jeffrey and with Brougham to keep out of the Edinburgh Review those party declamations, which are destroying its influence with the public. Let them leave the last word to the Quarterly Review, and break off from this useless warfare at once. LETTER CLIX. TO J. A. MURRAY, ESQ. My dear Murray, Salisbury, 7th August, 1810. It was quite a pleasure to me to receive a letter from you again. I could not help fancying sometimes you might be unwell; though, upon the whole, I satisfied myself that you must be busy. I will certainly give you the meeting in Dublin, and on the earliest day on which I can reach it. I must of course remain till the Somerset Assizes are almost over, which will not be till Friday the 31st instant. I calculate that if I am not disappointed in places, and have an ordinary passage, I may land at Dublin early in the morning of the 4th. You cannot rely upon me however for that day. If you should come there sooner, I hope you will see as much as you can, that we may be off for Killarney without delay; which I agree with you ought to be our chief object. I have a great curiosity to see something of an Irish court of justice. The lawyers will probably be upon their circuits at that time; but you may as well ask if the Recorder's Court at Dublin has any sittings. Most affectionately yours, FRA. HORNER. LETTER CLX. TO HIS MOTHER. My dear Mother, Killarney, 13th September, 1810. We came here last night, having made two days of it from Limerick, and rather tiresome ones; I had the pleasure, upon my arrival, to find your letter of the 5th instant, which had been forwarded to me from Dublin, together with one from Warwick. I hope you got the note from Dublin; which I wrote immediately after I landed, that you might be relieved from your fears about the deep sea. I was very lucky in being able to reach it, the very day we had fixed as the first that we had a chance of meeting; by travelling two nights in the mail, and being fortunate enough to get on without delay either at Birmingham or Shrewsbury; at both which places I changed coaches. I left Bristol on Monday evening at seven, and was at Holyhead on Wednesday about two in the afternoon. The packet sailed about an hour afterwards; but we were three and twenty hours upon the passage, and near twenty of those were to me hours of mortal sickness: I thought of poor Jonah in the whale's belly, and fancied myself in as bad a plight, as I lay in my crib with nothing to relieve me in my nausea, but the sighs of sympathising Welsh, Irish, and Scotch around me, men, |