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HOUSE OF COMMONS.
tering into a long accusation of the con- cured, should be obtained, and with this duct of government, at a time not the most view his lordship moved for the appointdecorous for indulging in such general man of a Select Committee to inquire into censure. Without further entering into the state of the affairs of the East India any of those subjects discussed by that Company, and to report thereon.-Or. noble lord, he trusted the House would dered. see the impropriety of acceding to the present motion.-The motion was negatived without a division. (ROMAN CATHOLIC PETITIONS.] The
Monday, March 12. Earl of Donoughmore presented two peti- [BREACH OF PRIVILEGE MR. JOHN tions, one from the general body of the Gale Jones.] Sir F. Burdett rose, pur. Catholics of Ireland, and the other from suant to the notice he had given, to call the Catholics of the county and of the the attention of the House to a measure city of Cork. His lordship dwelt with which had been adopted by them, involvmuch force on the degrading disabilities ing materially the rights and the liberty under which the Catholics were suffering, of the subject (see vol 15, p. 502.) be who although they had essentially pro- meant the Resolution of the House, by moted the agricultural, the commercial which John Gale Jones was committed to and the manufacturing interests of the Newgate for a breach of the privileges of empire; who although they had served the House. He lamented exceedingly, their country both in the army and navy that in consequence of indisposition he with valour, fidelity, and zeal, were ex- had not been present at the time that recluded from all the upper ranks in the ad- solution was past, because he was aware, ministration of justice, and in the army that he stood in a worse situation to perand navy—the Catholic peers denied ad suade the House to recal an act after a mittance into that House--and the consti decision upon it, than he should have done tuent body not admitted by their repre- to prevent its commission before it was Bentatives into the other House of Parlia. adopted. He knew it was at all times ment. He regretted ihat difficulties had much easier to prevent the adoption of a arisen in the way of the desired arrange- measure, than to induce the House to rement, but he trusted that these difficulties tract a resolution after they had come to would soon vanish, and that a long time it. When he considered, however, the would not elapse before the rights of the vast importance of the question, and how Catholics were conceded to them. He highly the public interest was involved in intended on a future day to submit a mo- it, he was satisfied he would not discharge tion upon the subject to their lordships. his duty, did he not still endeavour to in.
The Petitions were ordered to lie on the duce the House to retract a step, which, table.
according to his view of the case, they (East India COMPANY.) The Earl of were not authorised to take. Lauderdale, as the necessary information With regard to the privileges of that was not before the House, declined going House, he knew there were persons who into those details into which he should carried their fanciful notions of them to a otherwise have entered. The appoint- very extraordinary length. But if they ment of a committee to inquire into the were possessed of privileges, such as that situation of the East India Company was, which the House had exercised, they however, peculiarly called for at the pre- must be such as could only be discovered sent moment. A considerable sum had by men of much more lively imaginations, been advanced to the company without and of minds far more acute, than he any information as to the necessity for it, could lay claim to. He professed only a the service to which it was to be applied, plain mind and understanding; and when or the means by which it was to be re- he wished to ascertain what were the pripaid. It was also rumoured that an ap- vileges of that House, he could only go, plication for another loan was to be made where he felt inclined, in the present in. during the present session, and that it was stance, to go, to the law of the land and to be proposed to extend the period of the the principles of the constitution, to asCompany's charter. Under these circum- certain, whether such privileges did; or stances he thought it peculiarly necessary, did not, exist. If he, at any time, found that
every information respecting the af- what was claimed as a privilege to be fairs of the company that could be pro- above the law of the land, he must feel himself reduced to the necessity of say- | without interruption or impediment, that ing, that no such privilege could legally was a question which he was not called or constitutionally exist. The law of the on to argue. land he must always consider to be the He begged to call the attention of genstandard by which the privileges of every tlemen to this circumstance, that there individual, and of every body of indivi- were involved in this question the considuals in this country, were to be measured. deration of two distinct qualities, privilege But it would be necessary, for the pure and power. The one, privilege, the pose of ascertaining, whether the right of House possessed for its own proiection ; imprisoning individuals, not members of the other, power, was a right to be exerthat House, was one of their privileges, to cised over others. Privilege they were to look to the origin of those privileges; this exercise to prevent the Crown from mocircunstance being always kept in view, lesting them in their proceedings.
They that the House of Commons was not the were to use it as a shield for themselves, Parliament of the country, but only one but they were not to allow it to change of the branches of that Parliament; that, its character, to be converted into power, in fact, as it appeared to his mind, the and to use it for the destruction of others. House of Commons was, though a consti- | The real nature of this privilege was to be tuent member, yet the inferior branch of collected from the very earliest periods of the legislature. (Order! order!) our history. It was recorded in Spelman,
The Speaker here interposed, and felt so early as the time of Canute, that the himself in duty bound to inform the hon. persons of members, in their way to and baronet, that it was not orderly to desig- from Parliament, should have protection. nate that House as the inferior branch of This was the first mention on record of the legislature.
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 ; pacem.". That every one going to, or and he contended, that there must conse coming from the Witenna gemotte, should quently be a difference in the extent of have protection. This, therefore, was the the privileges which they might, sepa- ground work of all the privileges of that rately, or jointly with the other House of House. Nothing seemed to him so absurd Parliament, be supposed to possess. On as the notion of an undefined privilege ; it this ground, he maintained, that the im. was a solecism in language; and he had prisonment of John Gale Jones was an in the highest authority for saying, that such fringement of the law of the land, and a a privilege was not known to the constitusubversion of the principles of the consti- tion. tution. He hoped that gentlemen would The next notice of privileges of Parliathrow altogether out of their minds that ment was to be found in two writs of suthis was a question regarding their own persedeas of Edward the second, to privi. privileges, and that they would come with lege members from being sued in any calmness and dispassionate feeling to de- court, (sitting the Parliament) and which eide on their own case. If they were to are still extant. But the extent of these take the consideration of the question privileges cannot be better set forth than only as connected with the law of the land, in the following order of the House of he should undertake to persuade them, Commons, of the 1st of June 1021, super and he hoped successfully, that nothing posed to have been drawn up by sir Elcould be more consistent either with the ward Coke, then a leading member of the law of the land, or with common sense, House : than that they should retract the resolu- " Ordered, upon question, That if any tion they had come to. The question
arrest, or any distress of goods, serving was, if the House of Commons had a right "any process, summoning his land, citato imprison a person not a member of that “tion or summoning his person, arresting House, for an offence punishable by the « his person, såing him in any court, or ordinary course of law, and by a vote for “ breaking any other privilege of this that purpose, deprive the people of their « House, a letter shall issue, under Mr. imprescriptable rights ? As to those privi- “ Speaker's hand, for the party's relief leges which should be possessed, because o therein, as if the Parliament was sitting; necessary to enable the House to carry " and the party refusing to obey it, to be on its own proceedings uncontrouled and “ 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, 1021, as sir Edward Coke, argument against Thorpe's being allowed so wall 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 ago rogarive 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 The hon. bart. then proceeded to quote up to the time of the civil war. As for a variety of other cases in illustration of instance: In 1427, one Richard Chedder, what he contended to be the legal and a menial servant, attending upon sir Tho constitutional limits of perogative, claimed mas Broode, one of the knights for Somers and exercised by that House up to the pesetshire, who was assaulted, beaten, andriod of the civil wars. In all the cases he cruelly maimed, was content to seek re- observed that members, when their pridress by law. In his case the House vileges were violated, and their persons acted with such moderation as to order arrested, were content to appeal to the application to be made to the law of the law, and had such tenderness and respect land, and a new law, not an er post facto for other men's rights as well as their own one, was passed for punishing assaults privileges, as to make provision for the inagainst members or their attendants interest of creditors, when affected by their future.
privileges, and to indemnify officers against In 1430, William Larke, servant to Wil. actions for escape, to which they were leliam Mildred, one of the members for the gally liable for giving up their prisoners. city of London, was committed to the Never did the members of the House of Fleet on an execution of debt, and deli. Commons presume to overleap the bounds vered in due course of law. And in 1433, of the constitution, and take ihe law inio an act of Parliament was made, afixing a their own hands, till the days of the Long heavier penalty for the assaulting a mem- Parliament; when, from the peculiar cirber, than the law had previously inflicted. cumstances of the country, in order to reThe act is entitled, “An act against as- sist the arbitrary encroachments of a des. saults made upon lords or others coming potic prince, the House of Commons found to the Parliament.” In 1456, Thorpe, it absolutely necessary in the struggle, the Speaker, was arrested at the suit of not only to extend their privileges, but to the duke of York, on which the Commons assume powers, the exercise of which aboappealed to the whole Parliament, who lished the House of Lords, brought the referred the case to the Judges, whose King to the block, and ultimately dissolved opinion was in favour of Thorpe's being the whole frame of the government. If entitled to priviiege : notwithstanding these usurpations of power were not only which, the Parliament decided otherways, acquiesced in, but strenuously supported and the Commons acquiesced and chose by the people at that period, it was because another Speaker. What was remarkable they were supposed to be indispensably in this case was, that both the Judges and necessary to enable the House of Commons the Parliament appealed to the same to stem jhe torrent of tyranny which was maxim: both applied the same argument sweeping every thing before it to destrucas conclusive, viz. “ That the party ag. tion; and as the only means of wresting grieved could have no redress, and that from the grasp of despotism, the expiring there could be no wrong without a reme- liberties of the country. 3
But these, surely, were not sources suf- Having thus briefly adverted to some ficiently clear, nor times sufficiently ana- of the less important cases, to which he logous to justify our drawing thence in- found it necessary to call the attention of stances, miscalled precedents, 10 counte- the House, he proposed next to submit to nance similar proceedings under a legal, its consideration, the very remarkable case settled, and established system of govern of Bridgeman versus Holt in 1696-7. The ment. But as every day's experience duchess of Grafton having claimed under would inform thero how reluctantly all a patent of Charles the second, a right to men relinquish power and authority, which appoint the clerk to the King's-Bench, 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, comnardiston, Shirley, and Stoughton versus plaining of the conduct of the judges, was Onslow, the pretensions to power under presenied to the House of Lords, accusing the name of privilege still clong 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 fol. lemn, profound, and well digested argulowing case, which occurred about the ment, denied the jurisdiction of the House same time, and which having been argued of Lords, insisted upon their undoubted at á conference between the two Houses right as Englishmen, to a trial by a jury was entitled to more particular notice, it of their equals, in case they in any thing was that of the four counsel in the appeal were accused of having done wrong, and of sir Nicholas Crispe versus the lady Bow- claimed the benefit of being tried accord. yer, Dalmohoy and others, who were taken ing to the known course of the common into the custody of the Serjeant at Arms, law-they relied upon Magna Charta as for pleadiog before the Lords contrary to freeborn Englishmen, which they said, an order of the House of Commons to for- was made for them as well as for others ; bid them; at which conference, the lords that all powers and privileges in the king, asserted “That the House of Commons dom, even the highest, are circumscribed was no Court, had no authority to admi- | by the laws, and have their limits. In the nister an oath, or to give a judgment; courts of Westminster (said they,) the law that it was a transcendant invasion of the is determined by one, and the fact ascerliberty of the subject; that it was against tained by another; here, both the law Magna Charta, the Petition of Rights and and the fact would be in the same hands. many other laws, which had provided If the House of Lords should punish, could that no freeman shall be imprisoned or such order stop or bar the legal process otherwise restrained of his liberty but by hereafter? or be used below as a recovery due process of law; that it tended to the or acquittal?--as an autrefois convict ? or subversion of the government of the king. | autrefois acquit? Would the proceedings dom, because it was in the nature of an in the House of Lords sare them from the injunction from the lower House, which trouble of answering to an information or had no authority or power of jurisdiction indictment for the same thing elsewhere? over ipferior subjects, much less over the And here it was to be remarked, that when King and Lords. These arguments had the judges of the land were attacked by been answered by the Commons only by an unwarrantable power, they sheltered retorting upon the assumed jurisdiction of themselves behind the broad shield of the Lords, advancing empty assertions of Magna Charta and the trial by Jury, well its own authority.
knowing the value of such a protection, VOL. XVI,
and they concluded with these memorable for a similar act? And if they could supe words: some persons have, perhaps from pose, that any twelve lawful men in Engr “ a diffidence of success, or from a slavish and could be had to find a verdict of “ fear, or private policy, forborne lo ques- Guilty, then would be be punished twice " tion the power of their superiors, but for the same offence ? He could not prove “the judges must betray their reputation his former conviction, because he could " and their knowledge of the laws, if they (not produce the record of his former sen. " should own a jurisdiction which formertence; because, the House of Commons is “ times and their predecessors were unac- no court of record, therefore incapable, by "quainted with." Whereupon the peti-law, to furnish a copy of the record; be. tion was dismissed. If then these reasons cause the law did not allow that House to were conclusive against the House of Lords, try and determine any cause. To deter. they applied much more forcibly to the mine was beyond its limits, as had been House of Commons ; for the House of shewn: its incapacity was clearly proved Lords possessed the judicial power of par- by the legal circumscription of its powers. liament, being the supreme court of ap
But suppose that a jury could find ng peal in the dernier resort ; whilst the injury to have been sustained by Mr. House of Commons, having no judicial Yorke, and should return a verdict of acfunction to perform, was no court at all, quittal : then would Mr. Jones have been and consequently could not possess the sentenced to undergo the most severe pupower exercised in the commitment of nishment short of death, that of indefinite Mr. Jones.
imprisonment, by an order of the House Let the case of Mr. Jones now be mea. of Commons, for having done an act not sured by the arguments of the judges be-proved to be a crime; which on the confore cited: which arguments were held trary, would have been determined by a by the House of Lords as conclusive jury of his equals, not to have been an of against its pretentions.-The judges claim- fence, as in the case of Reeves; with whom ed and insisted upon the benefit of the the minister dealt more tenderly by giving common law, Magna Charta, and trial by him, his creature, the benefit of the law, jury, for any thing in which they might when a jury contradicted by their legal have done wong; not because they were verdict the predetermined judgment of the judges, but because they were commoners House of Commons; but, if a jury were to of England. They denied and rejected do the same in the present case, Mr. Jones the jurisdiction of ihe Lords, and assigned could have no remedy for the wrong done their reasons : “ Because, in that case, the to bim-he could not bring his action for " fact would be ascertained, and the law false imprisonment against Mr. Yorkę, nor, “ would be determined, by the same party; against the House of Commons, nor the “ and that if they should be punished by serjeant at arms, nor the sheriffs, nor the “the Lords, that would not prevent their jailor: that is to say, if the courts of law “ being called to answer again in the should tell him, as they had told others “courts of Westminster-ball, where they beretofore, that they could not interfere “ could not plead an autrefois convict, or
with the House of Commons. " autrefois acquit: and so, they might be A great variety of cases could be ad“punished twice for the same offence.” duced where the House had interposed,
Let the House. then apply this reasoning but not one in which it had gone to the to the case before them. He had already extent it had proceeded to in the present shewn, that the common law, Magna instance. Many pamphlets had been Charta, and trial by jury had been violat. published since the Revolution reflecting ed. They found Mr. Jones imprisoned on that House, the authors of which bad for an act, the illegality of which had not only been reprimanded or proceeded been proved the facts not ascertained against by the Attorney-General.-But it nor the law determined. Yet was he then was unnecessary to multiply cases, they undergoing such a sentence as had been must all be acquainted with the case of the shewn. And, as to the other part of the Middlesex Journal in 1771 when the mes.. argument of the judges : what was there senger of the House of Commons was sent to prevent Mr. Yorke from preferring a by their order to arrest the printer; in. bill of Indictment, according to law, stead of which, the printer took up the against Mr. Jones for this same act, as he messenger, and brought him before Crosunderstood had been done by a noble lord by, lord mayor, and aldermen Wilkes and got then in his place (lord Castlereagb) Oliver, who committed the serjeant. Not