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"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 "realin, 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"dom from all impeachment, imprison"ment and molestation (other than by the "censure of the House itself) for, or con"cerning any bill, speaking, reasoning or "declaring any matter or matters, touch"ing the parliament or parliament busi"ness; and that, if any of the said members "be complained of, and questioned for any "thing said or done in parliament, the "same is to be shewed to the king, by "the advice and assent of all the Com"mons assembled in parliament, before "the king give credence to any private "information."*

The nature and reason of these Privileges are declared by a Resolution of the House of Lords, May 28th 1624. On which day, the Earl Marshal, from the Committee for searching Precedents to sustain the Privileges, &c. of the House, made the following Report: viz.

"How far the Privileges of the Nobility "do clearly extend, concerning the "Freedom of their Servants and fol"lowers from Arrests.

"To all their menial servants and those "of their family, also those employed, "necessarily and properly, about their "estates as well as their persons. This "freedom to continue twenty days before "and after every session; in which time "the Lords may conveniently go home "to their houses in the most remote parts "of the kingdom.-That all the Lords, "after the end of this session, be very "careful in this point, and remember the "ground of this Privilege; which was, "only, in regard they should not be dis"tracted, by the trouble of their servants, " from attending the serious affairs of the

1. Cobbett's Parl. Hist. 1361. VOL. XVI.

no

"pressed.-And, for the particulars, they
"must be left to the judgment of the
"House, as the case shall come in ques-
"tion; wherein the House wants
"means as well by oath as without, to
"find out the true nature of the servant's
"quality in his lord's service. Thereupon,
"if it be adjudged by the House contrary
"to the true intent, any member whatso-
ever must not think it strange, if in such
"a case, both himself suffer reproof, as
"the House shall think fit, and his servant
"receive no benefit by the privilege, but

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pay the fees; because the justice of the "kingdom must be preferred before any "personal respect, and none to be spared "that shall offend after so fair a warning. "Ordered to be observed accordingly, "with this alteration, viz. This freedom to begin with the date of the writ of sum"mons and to continue twenty days after session of parliament*. every

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We may reasonably conclude, that all the Privileges, the House of Commons. then thought itself intitled to, were enumerated in the Order of the 1st of June 1621, as sir Edward Coke, so well acquainted with, and then contending for them against the undue prerogative of the crown, claimed no more.

Whenever these Privileges, so modestly and reasonably claimed, and so necessarily complied with, were infringed, they were as modestly and reasonably maintained by an appeal to the tribunal of the laws: which is apparent by reference to 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 Brooke one of the knights for Somersetshire, who was assaulted, beaten, and

* 1 Cobbett's Parl. Hist. 1488.

L

cruelly maimed, was content to seek redress by law *.

In 1430, William Larke, servant to William Mildred, one of the members for the City of London, was committed to the Flect on an execution of debt, and delivered in due course of law †.

And in 1433, an act of parliament was made, aflixing 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 is remarkable in this case is, that both the Judges and the Parliament appeal to the same maxim: both apply the same argument as conclusive, viz. "That the party aggrieved could have no redress, and that there could be no wrong without a remedy." The Judges determine from this maxim and from this reason, that no general Writ of Supersedeas could lye, because" (say they,)" if it could, the High Court of Parliament, from which all justice and equity ought to flow, would seem to stop the course of justice, and leave the party aggrieved without remedy." And the parliament yield to this same reason set forth by the duke of York in the argument against Thorpe's being allowed Privilege, viz. "That in case it was granted to Thorpe in this instance, the party aggrieved could have no remedy." So that we have the Opinion of the Judges and the Decision of the Parliament equally determined by the never failing maxim, "That there can be no Wrong without a Remedy."

In 1461, Walter Clarke, a Member arrested, was relieved by law .

In 1472, John Walsh servant to the Earl of Essex, being sued in the courts below, pleaded Privilege not to be sued, as being servant to a member of parliament: but the Judges decided that there was no such Privilege §.

In 1543, in the case of George Ferrers,

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who was arrested, and who, as well as being a member of parliament, was servant to the king-on which account, the Commons seem to have proceeded in a different manner, by sending the Serjeant at Arms for the first time, to relieve their member. This was resisted by the Sheriffs with violence, the Serjeant had his mace broke and returned without the member; whereupon the Sheriffs were summoned before King, Lords and Commons, who referred their punishment to the latter, who sent them to jail *.

In 1545, Trewynnard, a member, was arrested and relieved according to law by writ of Privilege; for obeying which, the Sheriff sustained an action for escape t.

Another case in the reign of Henry the 8th is very remarkable, namely, that of Mr. Stroud a member; who for bringing a bill into parliament for regulating the Tinners in Cornwall, was upon the breaking up of parliament questioned for it in the Court of Stannaries-fined and imprisoned in Lilford Castle; but relieved by due course of law, by Writ of Privilege I.

In 1580, the singular and complicated Case of Mr. Hall, a member, occurs, who having written a Book derogatory to the character of the House, and having published the same against its Orders and misrepresented its Proceedings; and having besides written an impudent Letter to the Speaker, and being absent when ordered to attend in his place, was imprisoned .

In all these Cases we may observe that Members, when their Privileges were violated, and their Persons arrested, were content to appeal to the Law, and had that 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. And 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,

* Ibid. 53. 1 Cobb. Parl. Hist. 553. Hatsell, 59.

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1 Hatsell, 86. 126. 206. || Ibid. 93.

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, it was because they were supposed to be indispensibly 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 these, surely, are 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 will inform us how reluctantly all men relinquish power and authority, which they have once exercised, even after having experienced its mischiefs, so was the House of Commons after the Restoration unwilling to yield up its usurped power and authority, submitted to in times of trouble and commotion, but incompatible with the

return of order and the laws.

conse

Accordingly, we find in the Cases of Dr. Carey, Mr. Fitten, sir Samuel Barnardiston, Shirley, and Stoughton versus Onslow, the pretensions to power under the name of Privilege still clung to by both Houses of Parliament, but as constantly denied and resisted by each House in its turn; the one always denying the usurpation of the other, and the parties aggrieved the authority of both: quently no power or authority is acknowTedged or allowed 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 is entitled to more particular notice, is that of the four Counsel in the Appeal of sir Nicholas Crispe versus the lady Bowyer, Dalmahoy 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 assert, That the House of Commons is no Court, has no authority to administer an Oath, or to give a Judgment; that it is a transcendant invasion of the Liberty of the Subject; that it is against Magna Charta, the

Petition of Rights, and many other laws, which have provided, That no freeman shall be imprisoned or otherwise restrained of his liberty but by due process of law; that it tends to the subversion of the government of the kingdom; because it is in the nature of an Injunction from the Lower House; which has no authority or power of jurisdiction over inferior subjects, much less over the King and Lords: Which arguments not to be controverted, the House of Commons contented itself with replying to, by retorts. upon the assumed jurisdiction of the House of Lords, and by advancing empty assertions of its own authority, without attempting to offer a shadow of proof in their support.

But in the Case of sir Samuel Barnardiston before mentioned, it is curious to observe the two Houses changing sides. The House of Commons then becomes, in its turn, the advocate for Magna Charta and the Rights of the People against the usurping jurisdiction and arbitrary preten sions of the House of Lords. Each House deciding as equitably against the unjust pretensions of the other, and according to the laws and the interest of the public; and as regardless of all equity, the public interest and the laws, when taking upon it to decide in its own cause; thus affording a strong additional illustration of the old wholesome doctrine, "That "no one ought to be judge in his own "cause."

From this period to that of the Revolution, the first instance that occurs, is that of a Pamphlet on clipping and coining guineas. The House of Commons offered a reward for the discovery of the author, and ordered the Pamphlet to be

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well knowing the value of such a protection-and they conclude with these memorable words: "Some persons have, perhaps, from a diffidence of success, or from "a slavish fear, or private policy, forborne "to question the power of their superiors, "but the Judges must betray their repu"tation, 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.

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If these reasons were conclusive against the jurisdiction of the House of Lords, they apply much more forcibly to the House of Commons: for the House of Lords retains the judicial authority of the parliament, being a Court of Appeal; but, the House of Commons has no judicial function to perform, and is no court at all. The Judges claimed no more than their right as commoners of England in Magna Charta and the Common Law of the land; which they contended, and with success, admitted of no man's being tried, except by a jury of his equals. They affirmed, that all Powers and Privileges in the kingdom, even the highest, are circumscribed by the laws of the land, and that they, the Judges, would betray a slavish fear and gross ignorance, if they permitted such an usurpation to be drawn into a precedent unknown to former times.

Having briefly noticed these unimpor-, tant Cases, I shall next proceed to direct the public attention to the 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, Lord Chief Justice Holt contested the claim. It was a trial at bar, and was decided against the Duchess in favour of Lord Chief Justice Holt. Upon which, the counsel of Bridgeman, who had been nominated as Clerk by the Duchess, tendered a Bill of Exceptions, which the Justices refused to seal. In consequence of which, a Petition, complaining of the conduct of the Judges, was presented to the House of Lords, accusing sir Wm. Dolben, sir Wm. Gregory, sir Giles Eyre, Justices of the King's Bench, of acting illegally in having so refused. They were, in consequence of this Charge, summoned by the House of Lords to appear before them, and answer to the complaint made in the Petition. Which the Judges refused to do: and they, in a solemn, 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 according 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 From 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? but in which the Judges who knew the laws would not acquiesce.

Here it is 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,

* Showers's Cases in Parl. 111.

These arguments, which need no further comment, ought to have been sufficient to put an end to all such pretensions in either House of Parliament for ever; but so reluctantly do all men part with power, that we find the Lords in the very next year, 1697, in the Case of Lord Banbury, summoning Lord Chief Justice Holt to appear before a Committee of their House; but Lord Chief Justice Holt refused to appear, and the Lords listened to the voice of reason, and dropped their pretensions.

This sound exposition of the Law, and the conduct and example of the Judges, might reasonably have been expected to operate as a prevention of any further disquietude of an English subject from the power of either House of Parliament: and

that it did produce a considerable effect, we may presume from the number of subsequent Cases, in which neither House presumed to trench upon the liberty of the Subject. For instance: in the year,

1698. Molyneux's "State of Ireland." He refused to appear, and the House of Commons addressed the King to discontinue the like works in future.

1699. Mr. Chivers, a member, was ordered to attend for a contempt; but declined coming: and, next day, on its being put to the vote, Whether he should be taken into custody by the Serjeant at Arms? it was carried in the negative. 1702. Doctor Drake's "6 History of the last parliament," a libel.

1707. Doctor Friend's " Account of Lord Peterborough's Conduct in Spain," a libel.

1719. Hall's" Sober Reply,"—a work against the Trinity.

1750." Constitutional Queries." 1763. Wilkes's " Essay on Woman," to which the name of Bishop Warburton was prefixed as the author.

1763. Wilkes's "North Briton, No. 45." 1763. Veni Creator paraphrased.

occasion to adduce, is that 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. Notwithstanding this outrage which the House of Commons sustained by the attack upon its officer, it presumed not to touch any of the offending parties, except its own members, the Lord Mayor and Alderman Oliver; passing over the Printer, the Journalist, and Alderman Wilkes, who, at that time, was not a member of the House -than which disaffirmance of its power a stronger proof cannot be conceived.

Lest it should be possible that any person should attach the slightest importance to the Resolutions of either House of Parliament, which may go to affect those who are not members of those bodies, it may be necessary to remark, that the Journals furnish Resolutions of the most contradictory nature for instance,

April 3, 1626-7, Resolved, "That the "Writ of Habeas Corpus cannot be denied, but ought to be granted to every "man, that is committed or detained in prison, or otherwise restrained by the "command of the king, the privy-coun"cil, or any other; he praying the "same*."

In all of which Cases, whether for libelling any member of either house, or the whole house, or both houses, or the whole" frame of the government, both Lords and Commons were content to pursue the known course of the Law, and left the party accused to be tried by the law of the Îand and a jury of his country.

June 9, 1705, Resolved, nem con. "That "no commoner of England, committed by "Order or Warrant of the House of Com

"tempt of that House, ought without "order of that House to be, by any Writ "of Habeas Corpus, or other authority "whatsoever, made to appear and answer, " and do, and receive a determination in "the House of Peers, during the session "of parliament wherein such person was "committed+."

There is a Case which, though prior in point of time, I have reserved for the last,"mons, for breach of privilege, or conbecause it demands a few observations: That of the Kentish Petition* in 1701, presented to the House of Commons by Mr. Colepepper and four other Kentish Gentlemen: voted by the House libellous, seditious, and a breach of privilege, and for presenting which the House of Commons sentenced these five gentlemen to be imprisoned. Is this an act to be justified and drawn into precedent? And of what avail is any precedents from the proceedings of an assembly whose conduct is arbitrary, and whose actions are measured by the crooked cord of its own discretion, not by the golden meteyard of the law?

The next and the last Case I shall have

* 5 Cobbett's Parl. Hist. 1520. See also 66 The History of the Kentish Petition," in the Appendix to the same volume, No. XVII.

And, in 1740, in Walpole's Case, it was resolved by the Lords, "That any attempt "to punish a man without a trial or hear

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ing, was contrary to the natural princi"ple of Justice and Liberty." And, in the Case of Skinner versus the East India Company, in 1675, the Commons Resolved, "That assuming a jurisdiction. "over the Case, being relievable at com"mon law, is contrary to law, and tends "to introduce arbitrary power."-But, to

* 2 Cobbett's Parl. Hist. 259.
+ 6 Cobbett's Parl. Hist. 431.

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