« AnteriorContinuar »
“Realm, and of the Church of England," kingdom ; that therefore they will not " and the making and maintenance of pervert that Privilege to the public in“ laws, and redress of mischiefs and griev. "justice of the kingdom, which was given “ ances, which daily happen within this them, chiefly, that the whole realm “ realın, are proper subjects and matter of " might in this High Court, draw the “ counsel and debate in parliament: and “ clear light of justice from them. In “ that in the handling and proceeding of “ which case, every one ought rather to " those businesses every member of the keep far within, than any way exceed
house hath, and of right ought to have, • their due limits.--That hereafter, before “ Freedom of Speech, to propound, treat, “ any person be sent for in this kind, the reason and bring to conclusion the same:
« lord whom he serves shall, either by " that the Commons in parliament have like
“ himself or by his letter, or by some “ liberty and freedom to treat of those mat- "message, certify the House upon his ho« ters in such order, as in their judgments nour, that the person arrested is within « shall seem fittest : and that every such" the limits of the privilege before ex
member of the said House hath like free. pressed. And, for the particulars, they “ dom from all impeachment, imprison" must be left to the judgment of the “ ment and molestation (other than by the • House, as the case shall come in ques“ censure of the House itself) for, or con- tion; wherein the House wants “ cerning any bill, speaking, reasoning or means as well by oath as without, to “ declaring any matter or matters, touch- - find out the true nature of the servant's “ ing the parliament or parliament busi- " quality in his lord's service. Thereupon, “ ness; and that, if any of the said members “ if it be adjudged by the House contrary “ be complained of, and questioned for any " to the true intent, any member whatso“ thing said or done in parliament, the ever must not think it strange, if in such “ same is to be shewed to the king, by “a case, both himself suffer reproof, as “ the advice and assent of all the Com- “ the House shall think fit, and his servant “mons assembled in parliament, before “ receive no benefit by the privilege, but “ the king give credence to any private pay the fees; because the justice of the 6 information.'
“ kingdom must be preferred before any The nature and reason of these Privi. “personal respect, and none to be spared leges are declared by a Resolution of the « that shall offend after so fair a warning. House of Lorris, May 28th 1624. On
" Ordered to be observed accordingly, which day, the Earl Marshal, from the " with this alteration, viz. This freedom to Committee for searching Precedents to begin with the date of the writ of sumsustain the Privileges, &c. of the House, “mons and to continue twenty days after made the following Report: viz.
“ every session of parliament*.”
We may reasonably conclude, that all “ How far the Privileges of the Nobility the Privileges, the House of Commons
“ do clearly extend, concerning the then thought itself intitled to, were enume. « Freedom of their Servants and fol. rated in the Order of the 1st of June 1621, “ lowers from Arrests.
as sir Edward Coke, so well acquainted “ To all their menial servants and those the undue prerogative of the crown, claim
with, and then contending for them against « of their family, also those employed, ed no more. “ necessarily and properly, about their
Whenever these Privileges, so modestly « estates as well as their persons. This and reasonably claimed, and so necessa« freedom to continue twenty days before rily complied with, were infringed,' they « and after every session ; in which time
were as modestly and reasonably main“ the Lords may conveniently go home tained by an appeal to the tribunal of the “ to their houses in the most remote parts laws: which is apparent by reference to o of the kingdom.- That all the Lords, all the Cases of Privilege which occurred “ after the end of this session, be very up to the time of the Civil War. As for “careful in this point, and remember the instance : “ ground of this Privilege; which was,
In 1427, one Richard Chedder, a meo only, in regard they shoold not be dis- nial servant, attending upon sir Thomas “ tracted, by the trouble of their servants, Brooke one of the knights for Somerset« from attending the serious affairs of the shire, who was assaulted, beaten, and
* 1. Cobbett's Parl, Hist. 1361. VOL. XVI.
* i Cobbett's Parl. Hist. 1488. L
cruelly maimel, was content to seek re- who was arrested, and who, as well as bedress by law*
ing a member of parliament, was servant In 1430, William Larke, servant to to the king-on which account, the ComWilliam Mildred, one of the members for mons seem to have proceeded in a difthe City of London, was committed to ferent manner, by sending the Serjeant at the Fleet on an execution of debt, and Arms for the first time, to relieve their delivered in due course of law t.
member.' This was resisted by the SheAnd in 1433, an act of parliament was riffs with violence, the Serjeant had his made, atlixing a heavier penalty for the mace broke and returned without the assaulting a member, than the law had member; whereupon the Sheriffs were previously inflicted. The act is entitled summoned before King, Lords and Com“ An Act against assaults made upon Lords mons, who referred their punishment to or others coming to the parliament.” the latter, who sent them to jail *.
In 1456, Thorpe, the Speaker, was ar- In 1545, Trewynnard, a member, was rested at the suit of the duke of York, on arrested and relieved according to law by which the Commons appealed to the writ of Privilege ; for obeying which, the whole parliament, who referred the case Sheriff sustained an action for escape t. to the Judges, whose opinion was in favour Another case in the reign of Henry the of Thorpe's being entitled to privilege: sth is very remarkable, namely, that of notwithstanding which, the Parliament Mr. Stroud a member; who for bringing a decided otherways, and the Commons ac- bill into parliament for regulating the quiesced and chose another Speaker . Tinners in Cornwall, was upon the breakWhat is remarkable in this case is, that both ing up of parliament questioned for it in the Judges and the Parliament appeal to the Court of Stannaries—fined and imprithe same maxim: both apply the same soned in Lilford Castle ; but relieved by argument as conclusive, viz. “ That the due course of law, by Writ of Privilege 1 party aggrieved could have no redress, In 1580, the singular and complicated and that there could be no wrong without Case of Mr. Hall, a member, occurs, who a remedy.” The Judges determine from having written a Book derogatory to the this maxim and from this reason, that no character of the House, and having pubgeneral Writ of Supersedeas could lye, lished the same against its Orders and “because" (say they,) “if it could, the misrepresented its Proceedings; and har. High Court of Parliament, from which all ing besides written an impudent Letter to justice and equity ought to flow, would the Speaker, and being absent when orseem to stop the course of justice, and dered to attend in his place, was imprileave the party aggrieved without re
soned ll. medy.” And the parliament yield to In all these Cases we may observe that this same reason set forth by the duke of Members, when their Privileges were vioYork in the argument against Thorpe's lated, and their Persons arrested, were being allowed Privilege, viz. “ That in content to appeal to the Law, and had that case it was granted to Thorpe in this in- tenderness and respect for other men's stance, the party aggrieved could have no Rights as well as their own Privileges, as remeriy.” So that we have the Opinion lo make provision for the interest of creof the Judges and the Decision of the ditors, when affected by their Privileges, Parliament equally determined by the and to indemnify officers against actions never failing maxim, “ That there can be for escape, to which they were legally no Wrong without a Remedy."
liable for giving up their prisoners. And In 1.461, Walter Clarke, a Member ar- never did the Members of the House of rested, was relieved by law 11.
Commons presume to overleap the bounds In 1472, John Walsh servant to the of the Constitution, and take the law into Earl of Essex, being sued in the courts their own hands, till the days of the Long below, pleaded Privilege not to be sued, Parliament; when, from the peculiar ciras being servant to a member of parlia- cumstances of the country, in order to rement: but the Judges decided that there sist the arbitrary encroachments of a deswas no such Privilege ş.
potic Prince, the House of Commons found In 1543, in the case of George Ferrers, it absolutely necessary in the struggle,
i Hatsell, 14. + Ibid. 17. $ Ibid 28. i Cobbett's Parl. Hist. 392. i i Hatsell, 35. § Ibid. 41.
* Ibid. 53.
1 Cobb. Parl. Hist. 553. + I Hatsell, 59. * i Hatsell, 86. 126. 206. l Ibid. 93.
not only to extend their Privileges, but to Petition of Rights, and many other laws, assume powers, the exercise of which abo- which have provided, That no freeman lished the House of Lords, brought the shall be imprisoned or otherwise res King to the block, and ultimately dissolv. strained of his liberty but by due proed the whole frame of the Government. cess of law; that it tends to the subvers If these usurpations of Power were not sion of the government of the kingdom; only acquiesced in, but strenuously sup
because it is in the nature of an Injunc. ported by the People, it was because they tion from the Lower House; which has were supposed to be indispensibly neces- no authority or power of jurisdiction over sary to enable the House of Commons to inferior sulyjects, much less over the King stem the torrent of tyranny which was and Lords:* Which arguments not to be sweeping every thing before it to destruc- controverted, the House of Commons con. tion; and as the only means of wresting tented itself with replying to, by retoris from the grasp of despotism, the expiring upon the assumed jurisdiction of the Liberties of the country.
House of Lords, and by advancing empty But these, surely, are not sources suf- assertions of its own authority, without atficiently clear, nor times sufficiently ana- tempting to offer a shadow of proof in logous to justify our drawing thence in their support. stances, miscalled Precedents, to counte- But in the Case of sir Samuel Barnarnance similar proceedings under a legal, diston before mentioned, it is curious to settled, and established system of govern- observe the two llou-CS changing sides. ment. But as every day's experience The Ilouse of Commons then becomes, in will inform us how reluctantly all men re- iis turn, the advocate for Magna Charta linquish power and authority, which they and the Rights of the People against the bave once exercised, even after having usurping jurisdiction and arbitrary pretene experienced its mischiefs, so was the House sions of the House of Lords. Each House of Commons after the Restoration unwil deciding as equitably against the unjust ling to yield up its usurped power and au- pretensions of the other, and according to thority, submitted to in times of trouble the laws and the interest of the public; and commotion, but incompatible with the and as regardless of all equity, the pubreturn of order and the laws.
lic interest and the laws, when taking Accordingly, we find in the Cases of upon it to decide in its own cause; thus Dr. Carey, Mr. Fitten, sir Samuel Barnar- affording a strong additional illustration diston, Shirley, and Stoughton tersus One of the old wholesome doctrine, “ That slow, the pretensions to power under the no one ought to be judge in his own name of Privilege still clung to by both Houses of Parliament, but as constantly From this period to that of the Revoludenied and resisted by each House in its tion, the first instance that occurs, is that turn; the one always denying the usurp- of a Pamphlet on clipping and coining ation of the other, and ibe parties ag- guineas.
The House of Commons of grieved the authority of both :
fered a reward for the discovery of the quently no power or authority is acknow- author, and ordered the Pamphlet to be ledged or allowed to belong to either. burned. But the following Case, which occurred
The next case that occurs is that of Dr. about the same time, and which having Welwood, who published a weekly paper, been argued at a Conference between the reflecting upon the whole House. He two House is entitled to more particular was reprimanded and discharged.t. notice, is that of the four Counsel in the Complaint being made against a Book Appeal of sir Nicholas Crispe rersus the entitled " King William and Queen Mary lady Bowyer, Dalmahoy and others, who Conquerors," said to be written by were taken into the custody of the Ser- Charles Blount, esq., it was ordered to jeant at Arms, for pleading before the be burnt: as likewise was a Pastoral LetLords contrary to an Order of the House ter at the same time. | Dyer, a Newsof Commons to forbid them; at which paper man, was reprimanded for publishConference, the Lords assert, That the ing Debates, and discharged. || House of Cominons is no Court, has no authority to administer an Oath, or * 4 Cobbett's Parl. Hist. 733. give a judgment; that it is a transcen- + 5 Cobbett's Parl. Hist. 655. dant invasion of the Liberty of the Sub- Ibid. 750. ject; that it is against Magna Charta, the | Ibid. 862.
Having briefly noticed these unimpor-, well knowing the value of such a protectant Cases, I shall next proceed to direct tion-and they conclude with these methe public attention to the remarkable morable words : “ Some persons have, perCase of Bridgeman versus Holi* in 1696-7. “ haps, from a diffidence of success, or from The duchess of Grafton having claimed “ a slavish fear, or privale policy, forborne under a patent of Charles the second, a " to question the power of their superiors, right to appoint the Clerk to the King's “ but the Judges must betray their repuBench, Lord Chief Justice Holt contested “ tation, and their knowledge of the laws the claim. It was a trial at bar, and was “ if they shouid own a jurisdiction which decided against the Duchess in favour of “ former times and their predecessors were Lord Chief Justice Holt. Upon which, unacquainted with.” Whereupon, the the counsel of Bridgeman, who had been Petition was dismissed. nominated as Clerk by the Duchess, ten- If these reasons were conclusive against dered a Bill of Exceptions, which the the jurisdiction of the House of Lords, Justices refused to seal. In cousequence they apply much more forcibly to the of which, a Petition, complaining of the House of Commons: for the House of conduct of the Judges, was presented to the Lords retains the judicial authority of House of Lords, accusing sir Wm. Dolben, the parliament, being a Court of Appeal ; sir Wm. Gregory, sir Giles Eyre, Justices but, the House of Commons has no judicial of the King's Bench, of acting illegally in function to perform, and is no court at all. having so refused. They were, in conse- The Judges claimed no more than their quence of this Charge, summoned by the right as commoners of England in Magna House of Lords to appear before then, Charta and the Common Law of the land; and answer to the complaint made in the which they contended, and with success, Petition. Which the Judges refused to admitted of no man's being tried, except do : and they, in a solemn, well digested by a jury of his equals. They affirmed, Argument, denied the Jurisdiction of the that all Powers and Privileges in the kingHouse of Lords, insisted upon their_un- dom, even the highest, are circumscribed doubted Right as Englishmen, to a Trial by the laws of the land, and that they, the by a Jury of their equals, in case they in Judges, would betray a slavish fear and any thing were accused of having done gross ignorance, if they permitted such an wrong, and claimed the benefit of being usurpation to be drawn into a precedent tried according to the known course of unknown to former times. the Common Law: they relied upon These arguments, which need no fur. Magna Charta as freeborn Englishmen, ther comment, ought to have been suffiwhich they said, was made for them as cient to put an end to all such pretensions well as for others; that all Powers and in either House of Parliament for ever; Privileges in the kingdom, even the high- but so reluctantly do all men part with est, are circumscribed by the laws, and power, that we find the Lords in the very have their limits. In the Courts of West
next year, 1697, in the Case of Lord Banminster (said they) the Law is determined bury, summoning Lord Chief Justice Holt by one, and the Fact ascertained by ano- to appear before a Committee of their ther; here, both the Law and the Fact House; but Lord Chief Justice Holt rewould be in the same hands. If the fused to appear, and the Lords listened to House of Lords should punish, could such the voice of reason, and dropped their order stop or bar the legal process here- pretensions. aster? or be used below as a recovery
Froin these solemn acts of venerable or acquittal ? -as an autrefois convict Judges in good times, it is evident, that or autrefois acquit ? Would the Proceed. undefined Privileges in the Houses of Parings in the House of Lords save them from liament were unknown to the Constitution the trouble of answering to an informa. and the Law; though, sometimes, pertion or indictment for the same thing else. haps, yielded to from ignorance or fear, where?
bui in which the Judges who knew the Here it is to be remarked, that when laws would not acquiesce. the Judges of the land were attacked by This sound exposition of the Law, and an unwarrantable power, they sheltered the conduct and example of the Judges, themselves behind the broad shield of might reasonably have been expected to Magna Charta and the Trial by Jury, operate as a prevention of any further dis
quietude of an English subject from the * Showers's Cases in Parl, 111.
power of either House of Parliament: and
that it did produce a considerable effect,, occasion to adduce, is that of the Middlewe may presume from the number of sub- sex Journal, in 1771, when the Messenger sequent Cases, in which neither House of the House of Commons was sent by presumed to trench upon the liberty of the their order to arrest the Printer; instead Subject. For instance: in the year, of wbich, the Printer took up the Mes
1698. Molyneux's “ State of Ireland.” senger, and brought him before Croshy, He refused to appear, and the House of Lord Mayor, and Aldernen Wilkes and Commons addressed the King to disconti- Oliver, who committed the Serjeant. Notnue the like works in future.
withstanding this outrage which the House 1699. Mr. Chivers, a member, was or- of Commons sustained by the attack upon dered to attend for a contempt; but de- its officer, it presumed not to touch any of clined coming: and, next day, on its be the offending, parties, except its own ing put to the vote, Whether he should be members, the Lord Mayor and Alderman taken into custody by the Serjeant at Oliver; passing over the Printer, the Arms? it was carried in the negative. Journalist, and Alderman Wilkes, who, at
1702. Doctor Drake's “ History of the that time, was not a member of the House last parliament," a libel.
-than which disaffirmance of its power 1707. Doctor Friend's “ Account of a stronger proof cannot be conceived. Lord Peterborough's Conduct in Spain," Lest it should be possible that any pera libel.
son should attach the slightest importance 1719. Hall's - Sober Reply,”-a work to the Resolutions of either House of Paragainst the Trinity.
liament, which may go to affect those who 1750. “ Constitutional Queries." are not members of those bodies, it may be
1763. Wilkes's “ Essay on Woman,” necessary to reinark, that the Journals to which the name of Bishop Warburton furnish Resolutions of the most contradicwas prefixed as the author.
tory nature: for instance, 1763. Wilkes's “ North Briton, No. 45." April 3, 1626-7, Resolved, " That the 1703. Veni Creator paraphrased. “ Writ of Habeas Corpus cannot be de
In all of which Cases, whether for libel- nied, but ought to be granted to every ling any member of either house, or the “ man, that is committed or detained in whole house, or both houses, or the whole prison, or otherwise restrained by the frame of the government, both Lords and « command of the king, the privy-counCommons were content to pursue the cil, or any other; be praying the known course of the Law, and left the " same*. party accused to be tried by the law of the June 9, 1705, Resolved, nem con. " That land and a jury of his country..
“ no commoner of England, committed by There is a Case which, though prior in “ Order or Warrant of the House of Compoint of time, I have reserved for the last, “mons, for breach of privilege, or conbecause it demands a few observations : "tempt of that House, ought without Thay of the Kentish Petition* in 1701, “ order of that House to be, by any Writ presented to the House of Commons by “ of Habeas Corpus, or other authority Mr. Colepepper and four other Kentish o whatsoever, made to appear and answer, Gentlemen : voted by the House libellons, “and do, and receive a determination in seditious, and a breach of privilege, and “ the House of Peers, during the session for presenting which the House of Com- " of parliament wherein such person was mons sentenced these five gentlemen to “committed t.” be imprisoned. Is this an act to be justi- And, in 1740, in Walpole's Case, it was fied and drawn into precedent? And of resolved by the Lords, “ That any attempt what avail is any precedents from the “ to punish a man without a trial or hearproceedings of an assembly whose con- ing, was contrary to the natural princiduct is arbitrary, and whose actions are ple of Justice and Liberty." And, in measured by the crooked cord of its own the Case of Skinner tersus the East India discretion, not by the golden meteyard of Company, in 1075, the Commons Rethe law?
solved, “ That assuming, a jurisdiction The next and the last Case I shall have "over the Case, being relievable at com
“ mon law, is contrary to law, and tends * 5 Cobbett's Parl. Hist. 1520. See “ to introduce arbitrary power."-But, to also “ The History of the Kentish Petition,” in the Appendix to the same vo
* 2 Cobbett's Parl. Hist. 259. lume, No. XVII.
+ 6 Cobbett's Parl. Hist. 431.