himself reduced to the necessity of saying, that no such privilege could legally or constitutionally exist. The law of the land he must always consider to be the standard by which the privileges of every individual, and of every body of individuals in this country, were to be measured. But it would be necessary, for the purpose of ascertaining, whether the right of imprisoning individuals, not members of that House, was one of their privileges, to look to the origin of those privileges; this circumstance being always kept in view, that the House of Commons was not the Parliament of the country, but only one of the branches of that Parliament; that, in fact, as it appeared to his mind, the House of Commons was, though a constituent member, yet the inferior branch of the legislature. (Order! order!).

The Speaker here interposed, and felt himself in duty bound to inform the hon. baronet, that it was not orderly to designate that House as the inferior branch of the legislature.

without interruption or impediment, that was a question which he was not called on to argue.

He begged to call the attention of gentlemen to this circumstance, that there were involved in this question the consideration of two distinct qualities, privilege and power. The one, privilege, the House possessed for its own protection; the other, power, was a tight to be exer cised over others. Privilege they were to exercise to prevent the Crown from molesting them in their proceedings. They were to use it as a shield for themselves, but they were not to allow it to change its character, to be converted into power, and to use it for the destruction of others. The real nature of this privilege was to be collected from the very earliest periods of our history. It was recorded in Spelman, so early as the time of Canute, that the persons of members, in their way to and from Parliament, should have protection. This was the first mention on record of privilege of Parliament. The law of king Sir F. Burdett continued. This, at least, Canute was, " Omnis homo eundo ad Ge he might be allowed to say, that that" motum, vel redundo à Gemoto habeat House, and Parliament were different; and he contended, that there must consequently be a difference in the extent of the privileges which they might, separately, or jointly with the other House of Parliament, be supposed to possess. On this ground, he maintained, that the imprisonment of John Gale Jones was an infringement of the law of the land, and a subversion of the principles of the constitution. He hoped that gentlemen would throw altogether out of their minds that this was a question regarding their own privileges, and that they would come with calmness and dispassionate feeling to decide on their own case. If they were to take the consideration of the question only as connected with the law of the land, he should undertake to persuade them, and he hoped successfully, that nothing could be more consistent either with the law of the land, or with common sense, than that they should retract the resolu tion they had come to.

The question was, if the House of Commons had a right to imprison a person not a member of that House, for an offence punishable by the ordinary course of law, and by a vote for that purpose, deprive the people of their imprescriptable rights? As to those priviJeges which should be possessed, because necessary to enable the House to carry. on its own proceedings uncontrouled and

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"" pacem. That every one going to, or coming from the Witenna gemotte, should: have protection. This, therefore, was the ground work of all the privileges of that House. Nothing seemed to him so absurd as the notion of an undefined privilege; it was a solecism in language; and he had. the highest authority for saying, that such a privilege was not known to the constitution.

The next notice of privileges of Parliament was to be found in two writs of supersedeas of Edward the second, to privilege members from being sued in any court, (sitting the Parliament) and which are still extant. But the extent of these privileges cannot be better set forth than in the following order of the House of Commons, of the 1st of June 1621, supposed to have been drawn up by sir Edward Coke, then a leading member of the House:

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"Ordered, upon question, That if any arrest, or any distress of goods, serving any process, summoning his land, cita"tion or summoning his person, arresting "his person, såing him in any court, or

breaking any other privilege of this "House, a letter shall issue, under Mr. " Speaker's hand, for the party's relief "therein, as if the Parliament was sitting; " and the party refusing to obey it, to be "censured at the next Access."

The privileges asserted and defined indy." The Judges determined from this this order, were all in the nature of de- maxim and from this reason, that no genefences for the members; had reference to ral writ of supersedeas could lye, "benothing but their own proeeedings; and cause" (say they,) "if it could, the high could not apply to others, surely, at all court of Parliament from which all justice events, not to sanction what was contrary and equity ought to flow, would seem to to the law of the land. It may reasonably stop the course of justice, and leave the be concluded, that all the privileges the party aggrieved without remedy." And House of Commons then thought itself in- the Parliament yielded to this same reatitled to, were enumerated in the order of son, set forth by the duke of York, in the the 1st of June, 1621, as sir Edward Coke, argument against Thorpe's being allowed so well acquainted with, and then con- privilege, viz. "That in case it was granted tending for, them against the undue pre- to Thorpe, in this instance, the party agrogative of the crown, claimed no more. grieved could have no remedy." So that Whenever these privileges, so modestly they had in this case, the opinion of the and reasonably claimed, and so necessa- Judges and the decision of the Parliarily complied with, were infringed, they ment, equally determined by that sound were as modestly and reasonably main- and characteristic maxim of British law tained by an appeal to the tribunal of the and constitution, "That there can be no laws; which was apparent by reference to wrong without a remedy." all the cases of privilege which occurred up to the time of the civil war. As for instance: In 1427, one Richard Chedder, a menial servant, attending upon sir Thomas Broode, one of the knights for Somersetshire, who was assaulted, beaten, and cruelly maimed, was content to seek redress by law. In his case the House acted with such moderation as to order application to be made to the law of the land, and a new law, not an ex post facto one, was passed for punishing assaults against members or their attendants in future.

In 1430, William Larke, servant to William Mildred, one of the members for the city of London, was committed to the Fleet on an execution of debt, and delivered in due course of law. And in 1433, an act of Parliament was made, affixing a heavier penalty for the assaulting a member, than the law had previously inflicted. The act is entitled, "An act against assaults made upon lords or others coming to the Parliament." In 1456, Thorpe, the Speaker, was arrested at the suit of the duke of York, on which the Commons appealed to the whole Parliament, who referred the case to the Judges, whose opinion was in favour of Thorpe's being entitled to privilege: notwithstanding which, the Parliament decided otherways, and the Commons acquiesced and chose another Speaker. What was remarkable in this case was, that both the Judges and the Parliament appealed to the same maxim: both applied the same argument as conclusive, viz. "That the party aggrieved could have no redress, and that there could be no wrong without a reme

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The hon. bart. then proceeded to quote a variety of other cases in illustration of what he contended to be the legal and constitutional limits of perogative, claimed and exercised by that House up to the period of the civil wars. In all the cases he observed that members, when their privileges were violated, and their persons arrested, were content to appeal to the law, and had such tenderness and respect for other men's rights as well as their own privileges, as to make provision for the interest of creditors, when affected by their privileges, and to indemnify officers against actions for escape, to which they were legally liable for giving up their prisoners. Never did the members of the House of Commons presume to overleap the bounds of the constitution, and take the law into their own hands, till the days of the Long Parliament; when, from the peculiar circumstances of the country, in order to resist the arbitrary encroachments of a despotic prince, the House of Commons found it absolutely necessary in the struggle, not only to extend their privileges, but to assume powers, the exercise of which abolished the House of Lords, brought the King to the block, and ultimately dissolved the whole frame of the government. If these usurpations of power were not only acquiesced in, but strenuously supported by the people at that period, it was because they were supposed to be indispensably necessary to enable the House of Commons to stem the torrent of tyranny which was sweeping every thing before it to destruction; and as the only means of wresting from the grasp of despotism, the expiring liberties of the country.

But

Having thus briefly adverted to some of the less important cases, to which he found it necessary to call the attention of the House, he proposed next to submit to its consideration, the very remarkable case of Bridgeman versus Holt in 1696-7. The duchess of Grafton having claimed under a patent of Charles the second, a right to appoint the clerk to the King's-Bench,

But these, surely, were not sources sufficiently clear, nor times sufficiently analogous to justify our drawing thence instances, miscalled precedents, to countenance similar proceedings under a legal, settled, and established system of government. But as every day's experience would inform them how reluctantly all men relinquish power and authority, which they have once exercised, even after hav-lord chief justice Holt contested the claim." ing experienced its mischiefs, so was the The case was solemnly argued in a trial at House of Commons, after the Restoration, bar, and was decided against the duchess unwilling to yield up its usurped power in favour of lord chief justice Holt. Upon and authority, submitted to in times of which, the counsel of Bridgeman, who trouble and commotion, but incompatible had been nominated as clerk by the with the return of order and the laws.- duchess, tendered a Bill of Exceptions, Accordingly they would find in the cases which the justices refused to seal. In of Dr. Carey, Mr. Fitten, sir Samuel Bar- consequence of which, a petition, commardiston, Shirley, and Stoughton versus plaining of the conduct of the judges, was Onslow, the pretensions to power under presented to the House of Lords, accusing the name of privilege still clung to by sir Wm. Dolben, sir Wm. Gregory, sir both Houses of Parliament, but as con- Giles Eyre, justices of the King's-Bench, stantly denied by each House to the other in of acting illegally in having so refused. its turn; the one always denying the They were in consequence of this charge, usurpation of the other, and the parties summoned by the House of Lords to apaggrieved the authority of both conse- pear before them, and answer to the comquently no power or authority of that de-plaint made in the petition. This the scription could be acknowledged or al-judges refused to do: and they, in a solowed to belong to either. But the following case, which occurred about the same time, and which having been argued at a conference between the two Houses was entitled to more particular notice, it was that of the four counsel in the appeal of sir Nicholas Crispe versus the lady Bowyer, Dalmohoy and others, who were taken into the custody of the Serjeant at Arms, for pleading before the Lords contrary to an order of the House of Commons to forbid them; at which conference, the lords asserted "That the House of Commons was no Court, had no authority to administer an oath, or to give a judgment; that it was a transcendant invasion of the liberty of the subject; that it was against Magna Charta, the Petition of Rights and many other laws, which had provided that no freeman shall be imprisoned or otherwise restrained of his liberty but by due process of law; that it tended to the subversion of the government of the kingdom, because it was in the nature of an injunction from the lower House, which had no authority or power of jurisdiction over inferior subjects, much less over the King and Lords. These arguments had been answered by the Commons only by retorting upon the assumed jurisdiction of the Lords, advancing empty assertions of its own authority.

VOL. XVI.

lemn, profound, and well digested argument, denied the jurisdiction of the House of Lords, insisted upon their undoubted right as Englishmen, to a trial by a jury of their equals, in case they in any thing were accused of having done wrong, and claimed the benefit of being tried accord. ing to the known course of the common law-they relied upon Magna Charta as freeborn Englishmen, which they said, was made for them as well as for others; that all powers and privileges in the kingdom, even the highest, are circumscribed by the laws, and have their limits. In the courts of Westminster (said they,) the law is determined by one, and the fact ascertained by another; here, both the law and the fact would be in the same hands. If the House of Lords should punish, could such order stop or bar the legal process hereafter? or be used below as a recovery or acquittal?-- as an autrefois convict? or autrefois acquit? Would the proceedings in the House of Lords save them from the trouble of answering to an information or indictment for the same thing elsewhere? And here it was to be remarked, that when the judges of the land were attacked by an unwarrantable power, they sheltered themselves behind the broad shield of Magna Charta and the trial by Jury, well knowing the value of such a protection, B***

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for a similar act? And if they could suppose, that any twelve lawful men in Eng land could be had to find a verdict of

for the same offence? He could not prove his former conviction, because he could not produce the record of his former sentence; because, the House of Commons is no court of record, therefore incapable, by law, to furnish a copy of the record; because the law did not allow that House to try and determine any cause. To determine was beyond its limits, as had been shewn: its incapacity was clearly proved by the legal circumscription of its powers.

and they concluded with these memorable words:" some persons have, perhaps from "a diffidence of success, or from a slavish "fear, or private policy, forborne to ques-Guilty, then would he be punished twice "tion the power of their superiors, but "the judges must betray their reputation " and their knowledge of the laws, if they "should own a jurisdiction which former "times and their predecessors were unacquainted with." Whereupon the petition was dismissed. If then these reasons were conclusive against the House of Lords, they applied much more forcibly to the House of Commons; for the House of Lords possessed the judicial power of parliament, being the supreme court of appeal in the dernier resort; whilst the House of Commons, having no judicial function to perform, was no court at all, and consequently could not possess the power exercised in the commitment of Mr. Jones.

Let the case of Mr. Jones now be measured by the arguments of the judges before cited which arguments were held by the House of Lords as conclusive against its pretentions.-The judges claimed and insisted upon the benefit of the common law, Magna Charta, and trial by jury, for any thing in which they might have done wong; not because they were judges, but because they were commoners of England. They denied and rejected the jurisdiction of the Lords, and assigned their reasons: "Because, in that case, the "fact would be ascertained, and the law "would be determined, by the same party; "and that if they should be punished by "the Lords, that would not prevent their "being called to answer again in the "courts of Westminster-hall, where they "could not plead an autrefois convict, or "autrefois acquit: and so, they might be "punished twice for the same offence."

Let the House, then apply this reasoning to the case before them. He had already shewn, that the common law, Magna Charta, and trial by jury had been violated. They found Mr. Jones imprisoned for an act, the illegality of which had not been proved-the facts not ascertainednor the law determined. Yet was he then undergoing such a sentence as had been shewn. And, as to the other part of the argument of the judges: what was there to prevent Mr. Yorke from preferring bill of Indictment, according to law, against Mr. Jones for this same act, as he understood had been done by a noble lord not then in his place (lord Castlereagh)

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But suppose that a jury could find no injury to have been sustained by Mr. Yorke, and should return a verdict of acquittal: then would Mr. Jones have been sentenced to undergo the most severe punishment short of death, that of indefinite imprisonment, by an order of the House of Commons, for having done an act not proved to be a crime; which on the contrary, would have been determined by a jury of his equals, not to have been an of fence, as in the case of Reeves; with whom the minister dealt more tenderly by giving him, his creature, the benefit of the law when a jury contradicted by their legal verdict the predetermined judgment of the House of Commons; but, if a jury were to do the same in the present case, Mr. Jones could have no remedy for the wrong done to him-he could not bring his action for false imprisonment against Mr. Yorke, nor against the House of Commons, nor the serjeant at arms, nor the sheriffs, nor the jailor: that is to say, if the courts of law should tell him, as they had told others heretofore, that they could not interfere with the House of Commons.

A great variety of cases could be adduced where the House had interposed, but not one in which it had gone to the extent it had proceeded to in the present instance. Many pamphlets had been published since the Revolution reflecting on that, House, the authors of which bad only been reprimanded or proceeded against by the Attorney-General. But it was unnecessary to multiply cases, they must all be acquainted with the case of the Middlesex Journal in 1771 when the messenger of the House of Commons was sent by their order to arrest the printer; instead of which, the printer took up the messenger, and brought him before Crosby, lord mayor, and aldermen Wilkes and Oliver, who committed the serjeant. Not