« AnteriorContinuar »
withstanding this outrage which the House steps together; one set find the bill, ano-
The delinquent prosecuted by the Attorney- privilege talked of resembled the bye-laws General. . In adducing further authority of a corporation, sufficient to bind themon the point, sir Francis said, that he felt selves, but which could not overturn the it too like trifling with the understanding law of the land, as laid down by the fa. of the House to expend their time. It was ther of it. This was to shew the House to a doctrine clearly laid down by lord Coke, be as great as King, Lords and Commons. that no man could be fined or confined, It was besides an encroachment on the prebut in a court of record; no court but that rogative of the crown, whose privileges it in which forty shillings damages might be was to see that no unlawfulrestraint was laid given could be a court of record; the ar- on the liberty of the subject. He might gument came into the form of syllogism, be told this was a privilege of parliament. and the necessary conclusion was, that the He answered, No; it was only a privilege power of fine and imprisonment was not assumed by one branch of the legisláture; in that House. But no right to fine was and he contended that the House was not assumed. Why then was the greater entitled to take that arbitrary rule to thempower retained, when the smaller one was selves. If gentlemen should shew resoluadmitted to be illegal? Why was the tions favourable to the exercise of this maxim of law and reason violated ? “ Cui right as a privilege of the House, he could minus non convenit, cui majus non convenit.” be at no loss to shew others of a contrary
The warrant of committal too, he must principle. Sir F. Norton had said, that he contend, was illegal in all its parts, but would pay no more attention to a resolueminently so in its conclusion. A legal tion of the House of Commons than to that warrant must conclude with the words, of a set of drunken porters at an alehouse, * till the party be delivered by due course
The observation was coarse, but it was of law;" this warrant ends with the words just. If gentlemen, therefore, were of “ during the pleasure of the House.” He opinion, that a resolution of that House (sir Francis) highly valued the rights of was equal to that of all the branches of the that House; but from whatever part of constitution, they would agree in rejecting
the constitution an exertion of arbitrary his proposition. But, if with him they
solemn and sacred duty of every English-law of the land and the acts of parliament
liberation of John Gale Jones, upon the for that description of offence. But the grounds of his contrition for the offence principle contended for by the hon. bart., which he had confessed at the bar, he was sufficiently negatired by the two preshould not have objected to it; but the cedents to which he had referred. That proposal of that liberation was so inter- House, indeed, had been possessed of woven by the hon. bart. with other topics, many other privileges, beside that under to which he could by no means subscribe, discussion, which it had itself thought that he really was a loss how to proceed. proper to abandon ;—for instance, ihe He could never be persuaded to go the lands of a member were formerly secure length of the hon. bart.'s doctrine, that against legal process, but in this case, the committal by the order of that House that House acted as he trusted it always of any person who was not a member, was would considerable inconvenience and contrary to the principles of Magna Charta. injustice being found to arise out of such This certainly was the first time when an arrangement, it was done away. But such a question was mooted in parliament, the principle upon which the existing pria or any doubt professed as to the right of vileges of that House rested, still remained the House to commit any person guilty of untouched; indeed, the principle upon treating it with contempt. But the hon. which the protection of members from bart. contended that such a right had not arrest, lest by such arrest they should be the sanction of any ancient practice, and prevented from attending their duty in that no instance of its exercise could be that House, was clearly indisputable. And found, previous to the existence of the it appeared to him equally clear, that lilong parliament. Here, however, the bels, or any other means of interfering honourable baronet was under a mis- with the due performance of a member's take ; for, so far back as the reign duty, should be equally provided againsta of Henry the Sth, there were two cases The same reasons which justified a court on record of the assertion of this right of law, in punishing any contempt or in: -the one arising out of the arrest of a terruption of its proceedings, pleaded in member, and the other out of an assauit. favour of the privilege exercised by that In the former, that of Ferrers, the House, House in the case which gave rise to this with ut any appeal to the courts of law, discussion. Any offence to a court of law interposed its own authority, and actually was deemed not only personal to the committed the sheriff, with all those con individual immediately presiding, but cerned in the act of arrest; and in the to the whole tribunal of justice, or aclatter case, that of Monington, the parties cording to the older language of the guilty of the assault were also committed law, to the king's person, which was cone to prison. Many other instances of com- sidered as perpetually present there. So mitments prior to the Long Parliament in this case the libel was not treated so might be cited with which he would not much as an offence to the memberattacked, now fatigue the House. With regard to as to the whole House collectively, which libels, no instance of a committal upon therefore for the vindication of its dignity such a charge, was, he admitted, to be felt it expedient to punish the offender. met with prior to the reign of Elizabeth; A charge brought against any member, but the fact was, that in the periods al. for a motion which he had made in the luded to by the hon. bart., which inme- House, would naturally be considered a diately succeeded the invention of print contempt of the House itself, which had ing, there was no such thing as the liberty entertained, and perhaps affirmed the mo. of the press, which now existed so hap- tion. The individual who had been impily for the country; as he believed io prisoned, was justly considered out of the that valuable privilege our present pre- question by the hon. baronet. He wished eminence above all other nations was in indeed that he had waited till the discharge a great measure to be attributed. The of Mr. Jones from prison, and then the right of printing, and the liberty of public question could be more delicately dis. cation, was so completely under the re- cussed. As it was at present, however, strictions of the Star Chamber, and so lia- there was this inconsistency; the motion ble to be limited by the king's proclama- had nothing, whatever to do with the tion, that there was no probability of any speech, by which it had been prefaced. libel appearing against that House. In He wislied even now that the worthy ba. fact, no such thing having occurred, no ronet would propose a declaratory resoluprecedent could be cited of any committal tion, on which io found his present mo.
Hon; or, perhaps, indeed, then the mo- more warranted to interfere with the right Lion now made need not follow, as the re- of that House to comınit for contempto lease of Jones must be the immediate con- than with the right of the court of Comsequence of the House agreeing in the re- mon Pleas, or of any other court. In solution. He confessed that, even then, fact, the question to which this discussion he for one would vote against the resolu- referred had been brought into a court of tion, as tending to deprive the House of a law, in the case of Crosby, the lord mayor privilege, which it bad enjoyed for above of London, for obstructing a messenger of 300 years—that of guarding its dignity that House in the execution of its order. against libels.
There, although the lord mayor was a Lord A. Hamilton highly panegyrized member of the House, he was committed the character of the worthy baronet, who -not, however, as a member, but for the brought forward this question, to no part obstruction alluded to as a municipal ofof whose conduct in that House, or else. ficer, and on an application for a writ of where, was it possible to attribute any habeas corpus the court of Common Pleas personal or selfish motive. But while he decided, that it could not interfere with bore full testimony to the hon., bart.'s the exercise of a right which belonged to rectitude, he could not concur in the opi- that House. The hon. bart. had thought nion he had advanced, that that House did proper to quote the observations of sir F. not possess a privilege, which he found to Norton, comparing "the Resolutions of have been so long exercised, and to have that House to the resolutions of a set of been uniformly recognized by all the drunken porters at an alehouse," and likecourts of law. The court of King's Bench ened its privileges to the bye-laws of a was known to have interfered with a sa corporation. Now he wished to know cred privilege which materially interested where the hon. bart. could find an inthat House, namely, the right of election; stance where any corporation possessed and to act in contradiction to the deci- the right by a bye-law, to arrest one of sion of a committee of that House, upon its officers at a distance, as that House had questions connected with such right; and done, with regard to the lord mayor in was it to be supposed that the same court the instance alluded to. But, returning to would hesitate to interfere with the exer- the decision of the court of common pleas, cise of the privilege under discussion, if the learned gentleman read an extract such interference were conformable to from the words of lord chief justice De law. Under these impressions, and from Grey, upon pronouncing that decision, these considerations, he felt himself bound which included a quotation from Coke's to vote against the worthy baronet's mo- Institutes, stating, that the right in queszion.
tion was legal, because it was necessary The Attorney General contended, that that the privilege of that House to commit the two cases quoted by the hon. baronet persons in certain cases, was a part of the since the Revolution, and particularly that law of the land that in such cases, its adwith regard to Knollys, who claimed to be judication was conviction, and its senearl of Banbury, bad no analogy to the tence execution and that no court was question at issue, for in neither of these entitled to interfere with the execution of cases could any contempt of the authority another. As to the words of the warrant of either House of parliament be fairly of committal“ during the pleasure of the made out. Indeed, the words of chief House” so particularly dwelt upon by the justice Holt before the House of Lords hon. bart., these words were also the subfully justified this assertion in the case of 'ject of considerable discussion in the case Knollys; but if that House did not possess of Crosby, but the result was, that they the right of committing any person for a
were found to have been those usual in all contempt or breach of its privileges, the similar cases, and so had been decided to way was clear for trying the legality of be correct. There were many other its exercise, by moving for a habeas cor- cases, which he could cite to shew the pus on the part of any person so com- indisputable right of that, and of the other mitted. The court of King's Bench, upon House of parliament to commit for any such a motion, would first be called upon contempt or breach of their privileges; to decide as to the right, and he should But he thought it hardly necessary to have no doubt as to its decision, because mention any more, as the sentiment of he had no doubt as to the right. That the House appeared almost unanimous court must, in fact, feel that it was no against the hon. bart.'s motion. He would not, therefore, trespass upon the attention hon. friend was not to be easily answered, of the House further than by alluding to and therefore it was not fairly met by the the case of Flower, who was committed hon. and learned gent. His hon. friend's by the House of Lords for contempt. The position was simply this, that that House opinions of lord Kenyon and Mr. justice did not possess a legitimate right to comGrose, delivered upon the application in mnit in a case of this nature-[Here there that case for a writ of habeas corpus to was some cry of question! question !! the court of King's Bench appeared to him The noble lord observed, that it might quite conclusive, as to the right of com- perhaps not be pleasing to some gentlemittal in cases of this nature.
men to enter into any argument upon this Mr. Cre.vey declared his inability to case.; but he could not help thinking it concur in the sentiments of his hon. friend rather ungracious in any gentleman to dis. who originated this discussion; for in his play that feeling, when it was considered opinion, the right of committal in such that the discussion related to the impricases as had been referred to, justly and sonment of an English subject for an innecessarily belonged to that House. In definite period and for an undefined ofdeed, it was highly essential to the per- fence. Upon such a subject he thought formance of ils duty. He quoted the it bis duty, before he should make up his case of lord Sirafford, when by gross mis- mind, carefully to examine the Journals. representations and the most libellous pub. He had done so, and entirely concurred lications, such a degree of outcry and with his hon. friend (Mr. Creevey) in odium was excited against the minority, the expression of regret, that the motion (among whom was Selden), who opposed was so framed that he could not support the infamous bill against that nobleman, it to the whole extent. Indeed, he found in order to shew, that such a power was no precedents for the exercise of this right necessary to maintain the authority and of committal on the part of the House at & independence of that House. Recollect- very early period; the practice was not of ing the treatment of that minority, and long duration; but so far from the fact comparing it with the conduct for which being as stated by a learned gent. (Mr. they were so abused, he should always Wynne), that there were no libellous pubfeel himself bound to resist those who lications punished by that House, preshould by libels or other means attempt vious to the Long Parliament, that he to excite popular vengeance against any found the case of Hall, who was committed individual or any number of individuals for a libel, 1580. This Hall, was, indeed, for their conduct in that House. There- a member, and expelled the House, before, although he felt disposed to vote for cause he would not retract his book, and the liberation of John Gale Jones, he the book itself burned, by order of the could not agree to the proposition as House. founded on the general doctrines laid As to the power now claimed, the down by his hon. friend.
House appeared to have derived it from Lord Folkestone vindicated the statement precedents in the time of the civil wars; of his hon. friend from the disingenuous but yet even then the instances of its manner in which the learned gent. (the being exercised were uncertain, and difAttorney General) had applied some of fering from each other in the various the cases and authorities of which his hon. modes of offence, of proceedings thereon, friend had in his very able Argument, and of punishments. They ought therehappened to make use. It must be in the fore to be very cautiously taken for prerecollection of the House, that when his cedents. The House ought also to recolhon. friend alluded to the comparison be- | lect, that though at the time alluded to, tween the resolutions of that House and of their predecessors hail assumed almost the a set of drunken porters in an alehouse, whole executive power of the governhe only quoted the words of a grave and ment: they however proceeded with more well known authority. Therefore, his deliberation even then, than they did hon. friend had not been fairly interpreted now, for they were wont to refer the conby the learned gentleman. Indeed the sideration of the offences to a committee interpretation had been equally unfair ot privileges, and bave a formal opinion with regard to his hon. friend's allusion to thereon before they committed the perthe bye laws of a corporation as compared son, and when they did commit any one, with the privileges of that House. But it was only to be proceeded against in the eloquent and forcible address of his due course of law. It should be recollected too, that at the close of the last legal and constitutional, and he could there, century, it was decreed, that all alleged fore see no objection to its exercise. It libels against that House should be re- was open to Jones to apply by the other ferred to the examination of a committee mode, that of petition, and be (the Solicitor of privileges, before any decision was pro- general) might agree to his discharge in nounced upon them by the House. This this way, the next moment after dispose solemn course was, however, of late years ing of the question as it now stood; but dispensed with, and the House determined he would not, and he trusted the House for itself with a promptitude that was too would not, relax now, after hearing the liable to error, and too likely to be influ- kind of arguments adduced by the hon. enced by passion. The revival of the for-baronet. If they did, what would be the mer, and the better course of proceeding, consequeuce ? It would be said, that they seemed therefore desirable. As to the yielded, because they doubted their own reference of libels on the House to the right : that when it came to be questioned, attorney general for prosecution, he did they were glad to compromise the matter not mean to question its propriety; but by liberating the individual. On these would maintain that the House was com- grounds, he must give his vote against the . petent, by its own authority, to punish motion, and he called on the House to any contempt or interruption of its pro- pause before they adopted a course which ceedings. He denied, however, that the would subject them to much misrepresenpublication of a libel was to be regarded tation. as a contempt. For, if a libel and a con- Mr. Sheridan had heard a great deal tempt of court were held to be tantamount, during the whole night, of cases in the how came Hart and White to be brought earlier periods of our history, in the reigns to trial, for a libel upon the court of King's of the Tudors and the Plantagenets : and Bench. If a libel were tantamount to a of the Henries, and the Edwards ; before contempt of court, the court could un- the Reformation, and previous and subsequestionably have committed these men quent to the Rerolution—now he wished at once, without a trial. The noble lord to draw the attention of the House to one concluded, with expressing his disposition simple and obvious case—the case of Mr. to vote for the liberation of Mr. Jones, John Gale Jones. It had been said by the although he could not go the whole length hon. and learned gent. who had just sat of his hon, friend's proposition.
down, that it would be wrong to think of The Solicitor General observed that the releasing Mr. Jones, on account of the question was now reduced to a much principles contained in the speech of the smaller point than it was at first presented, honourable baronet, lest the act of liberasince the supporters of the motion had ex- tion might seem a consequence of the plicitly abandoned the principle originally doctrine, or a concession to its validity. maintained, that the House had no right to Now he should certainly vote for the recommit any person but their own mem- lease of Mr. Jones, but he should not do it bers, in any case whatever. This was the by any means on the principles contained principle for which the hon. baronet had in the honourable baronet's speech ; and contended, and for the support of which, he did not see indeed what the abstract every argument used by him was directed. arguments of that speech had to do with The noble lord, who spoke on his side, had, the actual liberation of Mr. Jones. Why nevertheless, declared himself of a directly should he be sacrificed to a theory with contrary opinion, and acknowledged that which he had no concern? Why should the exercise of the right was consonant he fall an unwilling martyr to doctrines, with the law of parliament and the which he never propagated, nor perhaps law of the land. The question then ever entertained ? Did he ever say, with was, whether this was a case of con- the hon. bart. that the House had no jutempt or not? That is to say, whether this risdiction over any persons except its own person, convicted on his own confession by members ? To this indeed, and to this in the unanimous vote of the House, of a gross its full extent, went the arguments of the breach of privilege, (which contained in hon. baronet. It was in vain to deny it. itself a gross and scandalous contempt,) What! said he, condemà a man without and punished for his offence in the way a trial, examination, or the intervention that appeared most fitting to the House, of a jury--imprison a British subject withwas guilty or not? As far as the present out the verdict of his peers ! This was inpractice could be traced, it was found to be deed, the whole tenor of his speech, but