because the defence in such cases must, from its very nature, be an aggravation of the imputed offence. In the late defence of Mr. John Hunt, for instance, the editor of "The Examiner," almost every sentence might be called an aggravation of the original offence; and if he had been tried by a passionate or political judge, he might have been fined at every step. The offence imputed to Mr. Hunt was a libel against the House of Commons; and he endeavoured to prove that the greatest men in the country had said much worse things of that House than he had ventur

bailible committal, in the reign of Charles the 1st, was discussed, and an opinion of the Court of King's-bench cited in its favour, Mr. Pym said, the judges had mis-cited the authorities; and, upon his suggestion, a sub-committee was appointed to examine the grounds of the judges' opinion. Upon the resolutions of that committee was founded the immortal Petition of Right. The more he consider ed the subject, the more he was convinced that a judge had no right to fine a defendant for words uttered in the course of his defence. So far was the language used by Davison from being of an unprecedented to do; yet the learned judge never ed character, that a number of instances thought of fining him for adopting this were to be found in which judges had line of defence. There was no difference been insulted in the grossest manner, and in this respect between cases of blasyet they had never thought of resorting phemy and political libel; blasphemy to this summary mode of punishment. was itself a species of political libel, inasThe cases of Prynne, Bastwick and Bur- much as it went to impugn the religious ton, and the recent ones of Williams, establishments, which were intimately Eaton and Carlile, were precisely in point. connected with the political institutions As to the argument, that it was extreme- of the country. But it was said, will you ly improbable that the judges would abuse venture to oppose the opinion of the chief this discretionary power, he could only re- justice on this point? Yes, he would ply, in the language of Mr. Burke, that oppose the opinion of chief justice Abbott, all discretionary power was subject to or ten thousand chief justices, if it tended abuse. Such was the frailty of human to subvert the principles of the constitunature, that oppression was not merely tion, by supporting an arbitrary stretch the probable, but the necessary conse- of power. He had no great reverence for quence of vesting an arbitrary discretion the opinions of lawyers on constitutional in any tribunal. It was impossible to say questions; lawyers were bad legislators. where the consequences of permitting the It had been well observed by Harrington judges to exercise such an arbitrary power in his Oceana, that "Lawyers were might end. It might lead to the destruc- feathered and armed with interests dition of the trial by jury, as had happened rected point-blank against the interests in Sweden, through the corruption of the of the people. Lord Ellenborough had court and the apathy of the people, to- declared in 1804, that any thing was a wards the end of the seventh century. libel which had a tendency to hurt the He would state to the House an instance feelings of his majesty's ministers; an of the way in which this power of fining opinion which, considering the character for contempt was assumed, since the dis- of the gentlemen opposite, and the aucussion on Davison's petition. On Wed- spices under which the government was nesday last, in the Traverse Court, in conducted, was calculated to produce a Horsemonger-Lane, Mr. McCreery, a plentiful crop of political libels. printer, well-known to the readers of chief justice of the Common Pleas had Mr. Roscoe's works, observed, that he had very recently expressed his disapprobadiscovered a practice, very like packing tion of some observations of lord Camden, a jury, which prevailed in that court; which, he thought, pressed too hard upfor that he had been told they would not on judge Alibone, who sat upon the admit him among them, lest he should in- same bench with Jeffries and Scroggs. sist upon their deliberating upon their Mr. Justice Best had also declared, verdict. Upon this the presiding judge that the writ of Habeas Corpus might said, "Sir, if you do not sit down, I'll be refused on the first application, and fine you for contempt; and ere long you was not to be granted as a matter of will render yourself unworthy to sit among course. In this opinion he (Mr. Hobthe jury." This arbitrary power of fin-house) happened to be personally intering for contempt would become a source ested, and therefore as soon as he got of oppression in cases of political libel; home-he would forbear entering into

The

“Quas aut incuria fudit,

Aut humana parum cavit natura." Mr. Serjeant Onslow maintained, that the case of Davison was one in which the right of the judge had been legally exercised. The judge at Nisi Prius had the power of committing, as well as of fining, and the deprival of liberty was paramount to the infliction of a fine. He had voted against receiving the petition of Davison, on the former night, because the petitioner had been guilty of a gross and audacious contempt, for which he was most deservedly punished. He had not looked into precedents; but he recollected an instance where such a power had been exercised. It was the case of a Mr. Stone, who was tried for high treason, and on account of a gross contempt, the judges fined him 10. Many fines of this kind had been inflicted, which were not in the books, because they had passed sub silentio. He believed there was no lawyer who did not think that the power complained of had been properly exercised.

particulars as to his place of residence at that time-he referred to Blackstone's Reports, and found that it had been most inaccurately quoted by the learned judge. The ground of refusal in the case referred to was, that the individual was an alien, and thefore not entitled to the privileges of an Englishman. The solicitor-general had exhibited a similar degree of accuracy, when he had said that all the cases which he (Mr. Hobhouse) had cited, had been before cited by Mr. Cooper in his argument; for it happened, that of all the cases he had produced, only one had been mentioned by Mr. Cooper. Under such circumstances, he thought it was not too much to say, that the opinions of judges were not to be taken for gospel. When the House recollected, too, the way in which many learned gentlemen arrived at the highest distinctions of the profession-when they recollected that his majesty's ministers were constantly on the alert to catch any gentleman who distinguished himself at the bar for the current price of the day, and that the chief-justice-ship of Chester, that legal rat-trap, as it was whimsically termed, was usually kept open for this purpose, it was not very surprising that gentlemen who owed their elevation to ministers should entertain a grateful recollection of the patronage of their employers, and be ready to defend any ministerial job. Was it to be wondered at, that, under such a system, political judges were sometimes to be found? It was not in human nature that they could forget their creators, and always act without bias or political partiality; and therefore, in legislating, that House was bound to take their fallibility into account. He did not, of course, mean to impute to the judges in this country that sort of corruption which prevailed at Florence, where the tender of a few guineas mere or less would determine the event of a cause; but if they were free from that gross degree of corruption, it could not be denied, on the other hand, that some instances of a strong political bias had recently oc- Mr. Denman said, the House might curred, upon which it was impossible have been saved all this trouble, had they for men of sense to shut their eyes. received the petition he presented some He trusted the House would acquiesce in evenings back. It was rejected without the propriety of taking this petition into being read. This he believed was quite consideration His only motive in bring- unprecedented. Of all the subjects that ing it forward was, to remove, as far as could come before them, the most impossible, from the administration of jus- portant perhaps was the conduct of the ice those blots, which were, perhaps in-judges of the land. The case became a parable from human institutions, very important one, if it was indeed true,

Mr. Wynn thought the present petition not liable to the same objection as the former. He was sorry for the manner in which the hon. member had prefaced the introduction of the petition. His speech had been made up of charges, formally prepared as it were, against the judges, which were incapable of being then answered. If the petition, on being read, should appear to attack the opinion pronounced by the House on the petition of Davison, he should oppose its reception.

it

The petition was then read.

Mr. Wynn expressed a doubt, whether could be received, inasmuch as it alluded to what had been said by a member of that House on another occasion.

The Speakerdecided, that where such an allusion was noticed by any member, the petition could not be received.

Mr. Hobhouse consented to withdraw the petition, in order to rectify the point of form, and to present a similar one so corrected.

duty to oppose the reception of it; for the House was not a court to review the conduct of the Court of King's-Bench, though it was a court to review the laws and customs of the land. The learned gentleman had likewise opened the petition as an individual case of hardship, and not as a complaint against a judge for improper conduct. If he had stated it as a case of corruption or malversation in the learned judge, the House would certainly have been bound to notice it; but could not be expected to do so when he stated it as a mere matter of law and of legal practice. If the present petition were withdrawn, and brought forward again on a future occasion, free from the objections now made to it, he was of opinion that it ought to be admitted.

that there existed no precedent for fining | a defendant during his defence. The case was argued by Mr. Gurney, and no such precedent had been produced. He did not mean to say that a defendant might not be guilty of a contempt; but so novel a case as this, where a person aggrieved stated that he had been prevented from going on with his defence, through intimidation on the part of the judge, deserved the most serious and deliberate inquiry. It was no answer to say that the defendant had a written defence. He was not bound to confine himself to that written defence. He was not to be precluded from touching on the topics useful to his defence, if he thought proper; and, under those circumstances, the rejection of his petition was a most strange and unprecedented mode of proceeding. It was, indeed, as novel and irregular as the act itself of which that petition complained. As to the formal objection which was taken to the one now before the House, the opinion which the chair expressed should, of course, prevail; but he hoped a similar one would be presented, as it was of the first importance that such practices in courts of justice should not pass unnoticed by the House.

Mr. Denman said, that the noble lord had mis-stated him, for he had informed the House on the former night, that there were three distinct propositions, which he meant to propose in following up the petition.

Mr. Wynn trusted that, if the petition were brought up again, other points besides those which had been insisted on that night would be omitted, as they were highly objectionable. He had said, on a I.ord Castlereagh approved of the deci- former night, that the rejection of a petision to which the House had formerly tion without reading it was strictly conformcome, and was of opinion, that the grounds able with precedent. He would quote of it had not been fairly stated. The two cases in confirmation of his assertion. learned gentleman had said, that this was In 1781, there were two petitions brought the first time in which the House had re- up of which the reading was negatived jected a petition without hearing the con- nem.con. not on account of their containing tents of it read, and in so doing had as- improper language, but on account of sumed that the House had rejected the their relating to subjects with which the petition without taking any cognizance of House thought it improper to interfere. it. But this was not the case. The learn- One of them was a petition from one ed gentleman had himself stated the sub- Whitehead, praying the House to alter stance of Davison's petition; and it was certain clauses in a bill of Pains and Peowing to the statement made by the learn- nalties. The other was a petition from ed gentleman that the House had not per- the officers of the Westmorland militia, mitted the petition itself to be read. If praying that the House would alter the the learned gentleman had said, that he method in which the business of their had presented it for the purpose of pro- regiment was managed. posing some mode of remedying the evil complained of, he (Lord C.) should have had no objection to have had it laid upon the table; for the House was undoubtedly a tribunal capable of deciding upon the policy or impolicy of the existing laws: but as the learned gentleman had presented the petition as a complaint for illegal conduct against a learned judge, whose conduct had subsequently been solemnly reviewed and approved of by the Court of King's-Bench, he had thought it his VOL. IV.

Mr. Scarlett said, that as the courts above could not review any proceeding which had arisen out of a contempt in the courts below, the House of Commons was the fit tribunal to review it. If any subject of the realm considered himself aggrieved by a fine or any other punishment inflicted on him in a court of justice, he could have no remedy for the grievance unless he obtained it in that House. In the case of Davison, the fine which had been inflicted upon him had been stated Ꮞ Ꭰ