Nov. 1808-Notice, signed by order, to meet at Sessions House, Green Street, Dublin, on the 29th Nov. 1808.-GENERAL COMPLAINT of ill-treatment, &c. from state prisoners to commissioners.Nov. 29, 1808. The appointed day commissioners without any previous notice of seclusion, shut themselves up in Grand Jury Room, with a door-keeper stationed outside, who refused, by order of commissioners, to take in a note or message. One gentleman, who, by mistake of the door keeper, had been adnitted, was instantly turned out.-At 4 o'clock, Mr. St. JOHN MASON, at their request, went to the commissioners. They stated various restrictions to him. OUTLINE OF THEIR REGULATIONS,

As stated to Mr. Mason, and as appears from their report, &c.

"Privacy.--No complainant to read his complaint to them.-No two complainants to appear before them, at the same time; who would thus have been precluded from the advantage of each other's testimony. All complainants were required to embody their various cases into one memorial-Commissioners declared they would receive nothing which may criminate Lord Hardwicke's government. They permit the person accused to clear himself by his own oath, contrary to justice and the practice of courts, which the commissioners, page 34 of their report, profess to adhere to, one of whom was a judge, another an assistant barrister of a county. -They also receive the testimonies of instruments to clear their principal; viz. turnkeys, under jailors, nurses of infirmaries, and approvers, to counter-swear which class, state prisoners would not descend. N.B. On said 29th Nov. 1808, the customary entrance to said Sessions House was closed, early in the day, and at the other entrance, a person was stationed to say to all coming in, that there was no busines to be done there, that day.-Judge Daly, leading commissioner, had prejudged the cases of the state prisoners, on a former occasion, and they naturally feared, he may prejudge them now. He should not with propriety, have been a com

missioner.

"M. Disney,assistant barrister, may, on such an occasion, be very reasonably supposed to be guided in opinion by the judge. Mr. Renny, surgeon, another commissioner, was the reputed friend of Dr. Trevor, the party so heavily accused.

"The above are a few of the causes which induced the state prisoners to decline appearing before commissioners, from whom they despaired of an impartial hearing. They therefore sent in their PROTEST against the form of the proceeding, particularly that of Privacy, and solicited a public and liberal hearing, accessible to all concerned; and not that sort of inquiry, from which they were personally excluded by commis sioners, who, though their commission enjoined them to be particular, strict, and diligent, stationed a door-keeper to exclude complainant, note, and message; and who turned out of their room an heavily aggrieved complainant, and also petitioner to the house of Commons, from which hon. house their existence as commissioners had originated. "I can produce proofs of the above facts. ST. JOHN MASON."

A number of cases, affidavits, letters, &c. are brought forward in confirmation of the truth of the charges adduced.

One might imagine that the noble lord, Hardwicke, under whose administration these transactions are said to have taken place, and that Dr. Trevor, the person principally accused, would be anxious to have the subject investigated by parliament; and we cannot hesitate in assenting to the concluding reflections of the author:-" Infamy must "lie somewhere; and punishment "should fall either upon the perpetrator of such crimes, if true, or upon the calumniators if false. In "short government is loudly called upon, by every principle of jus,

66

EXPLANATION

OF A FORMER LETTER

IN REPLY TO MR. FLOWER,
AND REMARKS

ON LORDGRENVILLE'S DOCTRINE
RESPECTING THE THREE
ESTATES.

MR. EDITOR,

I have read with attention the remarks contained in your last upon my letter dated Jan. 13th, on the subject of the regency. I am really sorry that you should have supposed there existed in my mind the least desire of dictation when I writ that letter, in a very hasty way, as I have there said. The subject is certainly of great importance, and, if in delivering my sentiments upon it, I have had the misfortune to be thought dogmatical, it must have arisen from the hurry in which I writ, and not from that which, I trust, is my disposition of mind. You say that the regency question ought to be decided on the principle of the SOVEREIGNTY OF THE PEOPLE.-I am of the self same sentiment. But what is it that we mean by the sovereignty of the people? When people discuss a subject with a view to the better understanding of it, they cannot be too careful in defining the meaning of the words they make use of. By the sovereignty of the people, I understand that natural inherent right in the people to choose and establish such a government as they conceive will most contribute to their social happiness; but when this establishment is made, and ma

gistrates are appointed, and authority delegated in trust for the general welfare-when the social pact, in short, is formed and completed in all its parts, then in my humble opinion the sovereignty of the people has done its office, and must be consigned to repose,-from an active principle it becomes a passive one, because it has created a government whose province it is now to act; the political machine is erected, and set a-going; the impulsion is communicated; and to interfere by means of a contrary impulse can be productive of nothing but destruction.If however the machine does not perform its office; if it hitches in any of its parts; if any of its members are faulty; then indeed the same power which first con structed, and set it a going, must be resorted to, in order to mend it. In short I conceive, that he who totally rejects the doctrine of the sovereignty of the people, rejects the only solid foundation of legitimate power and authority; but he who attaches to the words such a capricious and unlimited controul over public matters, as that not long since exercised in France by the populace, setting up one day and putting down the next, doth what is neither your intention nor mine, bring a just principle inte odium and contempt; and what is there I pray that may not, by being abused be made odious and contemptible? There is the same good faith due from a nation as from an individual; cach are under the same moral tie to

1

keep their engagements, whilst those with whom they have contracted, keep theirs. Whilst the power with which the people have entrusted the civil magistrate is used for the purposes for which it was delegated they are not at liberty to resume it. The sovereignty of the people can only in this case be exercised when the social contract is silent; where a contingency occurs that had not been provided for; but I deny that the people are, even in that case, at liberty to act without restraint, as they would be, were the contract itself broken and dissolved: no, they must act in conformity with their existing en gagements. The incapacity of George the Third to fulfil his engagements with the nation, does not annul the family compact, that the nation has made with the house of Brunswick; and by virtue of which that family have an estate of inheritance in the crown. Of this inheritance, they cannot be divested so long as they perform the duties of office, agreeably to the constitution. As by the common law the guardianship of the estate of him who is non compos mentis is given to the heir at law, on the ground that being eventually his right, he would be the sufferer in case of mismanagement, so it appears to me that the Prince of Wales had (to say the least) a better claim to the regency than any other man: and though the people by virtue of their primeval right of sovereignty were to decide this question, yet it appears to me that in this decision they could neither overlook the pactum familiæ existing with the house of Brunswick, or the personal pretensions of the Prince of Wales as heir to the crown, who would be the person most injured should any of the just rights of the crown be lost or impaired by an inter-regnum. In 1688, the people, acting upon the same primogenial right, had also a much greater latitude, because the grand paction between them and

their prince was broken and cancelled by his means, and consequently they entered again into all their primitive rights: they actually new modelled the monarchy by setting aside not only the father, but the son; also by making the profession of the protestant faith an indispensible qualification in all future sovereigns; and by the adoption of the house of Brunswick on failure of the female line in preference to the nearer claims of another illustrious house. Now all this was done by the people in 1688, on this elementary principle before alluded to, or flowed as a consequence from what they then did and if in 1688, the people, in convention, could unmake one king, and make another king, surely the same assembly would have been competent at present to appoint a kingly representative pro tempore without the help of fiction, without. setting upon a counterfeit third estate, to give their act a sanction which it wanted not, being good and valid without it! Was it not a convention of Lords and Commons alone without the intervention of the other estate that made William the Third King; and does not George the Third stand in William the Third's shoes; and shall not that power which made George the Third king at second hand, be able also to appoint him a locum tenens when he is unable to fill the place himself? Shall not they who created the office itself, and have nominated a family to hold it, be adequate to the appointment of a deputy? Why then resort to a fictitious power when there existed a real power adequate to the purpose required? Why try to make an act of parliament without a parliament? An act of parliament we all know is an act of King, Lords and Commons, but behold here an act of King, Lords, and Commons declaring that there is no king!! The act defeats itself, for it says there is no effective king, what efficacy then can that instrument

have which is the act of an inefficient agent? With respect to the vacation of the throne I beg leave to ask, if the king's seat of office was not really empty before the prince was placed in it, as his father's representative? If it is asserted that it was not, then I ask what business he had to be put there at all? We speak of the throne figuratively, as we do of the bench, and we apply likewise the term to seats of state which are made to resemble the real throne: thus we now hear of there being a throne at Carlton house as well as one at St. James's, and perhaps likewise at other palaces, but after all there is a seat which is properly the throne, and that is the seat which when parliament is assembled, holds no less than one third portion of the legislature. Now that this seat was empty, till the prince was put there, is evident, from the total stoppage of all parliamentary business: the two estates of Lords and Commons were there, but the monarchical estate was not there, either in person or by representation; and therefore I apprehend, it was something more than a mere figure of speech to say that the throne which holds that estate when all three are duly assembled in parliament, was at that time empty. In the Lex Parliamentaria, p. 52, we read these words:"It appears by precedents, that whenever a parliament was sitting in the king's absence, there was always a custos regni or a lo cum tenens regis appointed."-So that it appears from hence that the throne or king's seat of office in parliament was never to be empty; the reason is obvious; if the king was not there, either in person or by representation, then was there but two estates there, and consequently no parliament at all; for the three estates, are but so many parts of one and the same body, as we may learn from the same book already quoted, p. 57, where it says;-" The three

VOL. IX.

estates of parliament are one entire body and corporation ;" and a little further on, these words from Fineur, are quoted: "the parliament at the common law consists of the King, Lords and Commons, and they are but one body corporate." If there be a principle in our government that deserves the name of fundamental and incontrovertible it is the above. I conceive Mr. Editor, that you will not scruple to grant me this principle; and I equally confide in your granting me another principle, namely, that a part cannot constitute a whole; and having these two principles, Sir, then shall I have all that I want to prove that the throne was empty. Parliament, it is proved, is a body corporate, that is to say compounded of three parts, two parts out of three cannot make a whole, therefore the Lords and Commons could not make a parliament, and why? because the mo narchical part was wanting, that part which is seated in the throne was not there; the empty chair stood there, but the power that proceeds from that seat when parliament is entire, was not to be found; it was wanting for every constitutional purpose; and the business of parliament could not even be begun. This I think a man may venture to pronounce vacuity, or emptiness!

Permit me to remark, Mr. Editor, that you have quite mistaken my meaning in saying that I have “controverted a position laid down by you, that, in the present instance of a suspension of the royal functions, and for which there is no provision made by the constitution, it is the right and the duty of the representatives of the people to provide the means of supplying the defect." p. xciii. No Sir, it was never my intention to controvert these sentiments nor do I apprehend that I have done it; on the contrary I fully agree with you that it, was the duty of the peoples representatives lawfully

assembled and fully and freely representing all the estates of the people of this realm, to provide the means for supplying the defect of the royal authority." will add, due regard being had to the family compact en tered into with the house of Brunswick, and the personal rights of the prince, as heir to the crown. So that you see my position agrees with yours, but we differ somewhat, it should seem, in our ideas respecting the most proper mode of carrying this principle into practice: you think it should be done by an act of legislation, I conceive it would have been more properly done by an act of convention; by such an expression of the popular will as that by which the crown was placed on the heads of King William and Queen Mary this was not done by a parliament, but by a convention, or national assembly; and never was there, in modern times, an assembly that came nearer your description of fully and freely representing all the estates of the people, than this did. The monarchical estate was not there, neither was it requisite that it should be there, for the proceeding was grounded on the sovereignty of the people; and it was deemed quite sufficient authority for that great occasion, consequently it would have been competent to the present. The affairs of the nation at the revolution were conducted by men of great minds who scorned trick or fraud or fiction, they asserted the true principles of our free government as emanating from the popular will; and therefore they held the vote of a national convention to be a more constitutional disposal of the crown than a fictitious act of parliament. They were not afraid to meet the occasion fairly; they did not duck and dive to evade a recognition of the popular will, as the fountain head of all authority in the manner our modein statesmen have done. Had such a man as Pitt or Perceval been amongst

them, and proposed some dodging law trick, some counterfeit representation of the absent King James, in the person of John Doe or Richard Roe, in order to make William and Mary King and Queen by a spurious act of parliament, would he have given them so good a title, as that they acqnired from the act of sove, reignty of the people, announced by a full and free representation of the nation in convention? If it is agreed that the act of convention in 1688, was a more authentic, more legiti mate, and valid act than such a surreptitious soi disant act of parliament, then do I say, that the vote of the two houses calling on the prince to act as regent would have been a far more constitutional way of supplying the defect in the royal authority, than that which was adopted; and which bore indeed only the semblance of an act of the legislature; for we are told (Inst. Leg, p. 34,) that," an act of the legislature must be a tripartite indenture between King, Lords and Commons." That is, it must be, a real bona fide indenture, not a fictitious or fraudulent one.. Thus Nemotecnia, a very old book, says, 1. 2. c. 1. "L'Assemblie de troys estates, cest a scavoir, Roy, Nobility, et Commons, qui font le corps del realm est appel un parliament, and lour decree un act de parliament, car sans touts troys n'est ascun act de parliament." And yet Lord Grenville, as it should seem, denies that the King is one of the estates in parliament. I will add to this ancient, a more modern authority. "When we hear of three estates in the constitution of the English government, 'tis most natural to mean and intend such a poise in the balance, such an order or state as hath a negative voice in the legislative power; for neither the King and Commons, excluding the Lords, nor the King and Lords, excluding the Commons; much less the Lords and Commons, excluding the King,