Resolutions of the House of Commons, Sir Fletcher Norton said, when Attorney General, (and he was afterwards selected, for his knowledge of the laws, usage, and custom of parliament, to fill the Chair,)" He would pay no more respect, than to the Resolutions of so many drunken porters at an ale-house." The expression was coarse, but the principle is just.

"amount of forty shillings ;" and he expressly lays it down, "That no Court not "of Record can fine or imprison," as resolved per totam curiam, on argument in Griesley's Case, as well as by Holt, in the Case of Grenville, versus Barwell. To impose a Fine of the lowest denomination the House of Commons has relinquished its former pretensions. If it does not, then, presume to impose the smallest Fine, does it not necessarily follow, that it cannot inflict the higher punishment of Imprisonment? It is an acknowledged maxim in Law: "Cui minus non convenit, ei non majus convenit;" and of how much more value, in the eye of reason and the Law, is a man's Person, than his property, though it protects both? To what end, indeed, should a man acquire Property, if his person is insecure? The notion entertained by our old lawyers, respecting Imprisonment, which is the highest execution of the law short of death; the importance attached by them to the power of imprisoning men, may be collected from Lord Coke, who says, “That a man in prison "is dead in law; he is homo mortuus, lost to society, himself, his family, and his friends; and that a man indefinitely imprisoned, is a man in Hell.” And the Gospel says, "Is not the Life more than meat and the Body than raiment?" in which word "raiment" all external possessions are included.

It has been shewn, from the Opinions of learned Judges-from the Declaration of both Houses of Parliament, when not judging in their own cause, and from undeniable legal Maxims, that the power exercised by the House of Commons, of passing a Sentence of Imprisonment upon any person, not a member of its body, is contrary to the Common Law, to Magna Charta, and every constitutional principle. I will now go further, and undertake to - prove, that not only every fundamental principle of the Common Law has been violated, but that every express provision of the Statute Law, for the personal security of the subject, has been transgressed. For which purpose it will be necessary to examine strictly, and with the utmost precision, what the legal and constitutional" functions of the House of Commons are: supposing, for the sake of the argument, that they are the fairly chosen Representatives of the People. Its Privileges we have enumerated from the highest authority. Let us now consider its Powersbegging that the Reader will never lose sight of the wide distinction between Privilege and Power.

Its Powers, then, briefly are: To remove Obstructions to its Proceedings: to abate a Nuisance legally called Contempt: As the Grand Inquest of the nation (which very term is enough to shew that its office is but to inquire, not to punish), it has authority to summon Witnesses for the purpose of instituting Inquiries into Public Grievances-of controuling Public Expenditure, and of impeaching Public Delinquents, in furtherance of justice, with a view to Judgment at the Tribunal of the Laws.

Such being its Powers, it will be necessary, in the next place, to examine it in another point of view, viz. as a Court exercising judicial Powers. And here, at the outset, we discover, that it is not a Court of Record, because it cannot hold Plea of Debt or Damage to the amount of forty shillings. Lord Coke says, "That a "Court not of Record, is where it cannot "hold Plea of Debt or Damage to the

This part of the subject may be reduced to a Syllogism:

No Court, that cannot hold Plea of Debt or Damage to the amount of forty shillings, is a Court of Record:

The House of Commons can hold no such Plea;

Therefore is not a Court of Record

therefore cannot fine or imprison. We will now try this pretension of the House of Commons by the test of its own proceedings.

The party is summoned to the bar to an-. swer interrogatories. Should he be unwilling to do this, he is sent to prison.-See the Case of Mr. Howard, 1675*. Should he confess, he is likewise sent to prison. See the Case of Mr. Jones, 1810. No legal evidence can be brought. The House is stopped in limine; for it cannot administer an oath, and Magna Charta, who, says my Lord Coke, is such a fellow, that he will bear no equal-arrests its further progress

-declaring, "That no man shall be put "to his law on the bare suggestion of an"other, but by lawful witnesses." Therefore, the House cannot proceed to trial: consequently, can deliver no Judgmentcan pass no sentence. Magna Charta declares, "That no freeman shall be arrest"ed, imprisoned, or in any way destroyed, "but by the Judgment of his Peers, or the "Law of the Land ;" and these words, per legem terræ, or law of the land, are well and fully explained by the statutes in confirmation of Magna Charta. The 5th, 25th, 28th, 37th, and 42d of Edward the 3d: which declare, That no man shall be put to answer without presentment of good and lawful men, before Justices, or matter of record, or writ original, or in due process of law. They also declare, That all enactments contrary to Magna Charta, are ipso facto null and void. And hereupon, says Lord Coke, all Commissions are grounded, always having this Sentence," Facturi quod ad justitiam pertinet, secundum legem et consuetudinem Anglia." It is not, says Lord Coke, "Secundum legem et consuetudinem Regis Anglia," lest it should be thought to bind the King only. Nor is it, "Secundum legem et consuetudinem Populi Anglia," lest it may be thought to bind the People only; -but per legem terræ, id est Anglia, that the law

may extend to all.

of trial-no rules of judicial proceedingbeing no Court of Record-not presuming to fine-not competent to administer an oath-nevertheless, it takes upon itself; first, to determine the crime ex post facto: secondly, it calls upon the accused, to criminate himself, contrary to every principle of English law: and in this extrajudicial manner upon a man criminating himself (so far as avowing himself the author of what has not been proved to be a crime,` can be called criminating himself) the House proceeds to Judgment, and investing itself with all the powers of Grand Jury, Petty Jury, Accuser, Judge and Executioner, without evidence, without trial, it pronounces a Sentence of indefinite imprisonment, and this in its own cause where, least of all, it should take upon itself to decide.

Let us next examine these proceedings by the rules of the Law, and again recur to that grand expounder of the Law, Lord Coke; who says, 1st Inst. sec. 3d.—“ No "man can be arrested or imprisoned con

trary to the form of the Great Charter." 2d Inst. 46, 3d Inst. 209-" No person is to "be imprisoned, but as the law directs, "either by command, or order of a Court "of Record, or by lawful warrant, by "which one may be detained lawfully to "answer the law."

Empson and Dudley committed grievous Every oppression under the colour of auoppressions under cover of an act of thority is a kind of destruction; and Henry the 7th; which shews the danger Magna Charta says, "No man "aliquo of shaking this fundamental law by dele- " modo destruatur." Every oppression tends gating discretionary powers to Justices of to destruction: but that is the worst opthe Peace or others, without trial by twelve pression which is done under colour of lawful men. To repeal which, the 1st of Justice. Edward the 6th incorporated St. Henry the 8th was enacted, and "to deter," Albans with power to make Ordinances: says the Act, "others by their fearful end, They made a Bye-law with a penalty of from similar courses, and to admonish fu- imprisonment. This was adjudged voidture Parliaments, that instead of this or- because contrary to Magna Chartadinary and precious Trial per legem terræ, because "Nullus liber homo capiatur." No they bring not in absolute and partial trials freeman shall be imprisoned, &c. On the by discretion," It is worthy of remark, same account, a Commission under the that Empson and Dudley were hanged, for Great Seal to arrest a notorious Felon, going contrary to Magna Charta, notwith- was resolved to be against Magna Charta standing that they acted under the autho--because no man shall be brought to anrity of an Act of Parliament; and, above all, we should lay to heart, that warning given to future Parliaments, not to take away the precious Trial by Jury, and not to introduce discretionary jurisdiction contrary to Magna Charta and the Common law *.

Yet, limited and circumscribed as the House of Commons is-having no means

* See 1 Cobbett's State Trials, No. 26.

swer-not being indicted or appealed by the party or other process of law. By the 2d of Henry 4th it is enacted, "If any man be arrested or imprisoned against the form of the Great Charter, that he be brought to his answer and have right.”

These are some of the numerous Provisions for the safety of the people, arising out of the Common and recognized by the Statute Law. These are the glorious Privileges of Englishmen; their impre

scriptible, inalienable Liberties: "claimed, insisted upon and demanded" by the Bill of Rights, and sealed and sanctified by the blood of their forefathers:

"At once the pride and safeguard of the land." Shall these Bulwarks, that have withstood the pelting storms of the Prerogative of the Crown, be sapped and undermined by the creeping Privilege of Parliament? Yet will this be the case, if the House of Commons be permitted to usurp a Power never pretended to by our most arbitrary kings. But no! the Laws, Cases, and Authorities, before cited, are positive: They make no reservation of Privilege of Parliament; much less of Power of the House of Commons; but on the contrary, are conclusive against both.

Let us now try, by another touchstone, this Power exercised by the House of Commons.

Certainly not to bind the Subject. It is
universally admitted by all writers upon
the science of Government, that the legis
lative, executive, and judicial powers in
a state should be kept distinct; that the
monster Despotism is generated by their
union; and that Justice and Liberty are
promoted and assured by these powers
being kept separate and distinct. Ac-
cordingly, the Laws of England keep not
only the great outlines, but every part of
great outlines
each feature distinct. The
are, The King entrusted with the execu-
tion of the Laws; yet cannot the King
execute any law; but he is bound to de-
legate his authority to officers of the
law. Why?-because, if it were other-
wise; if a subject was injured, he could
There would be a
have no redress.
wrong without a remedy; which the law
will not endure. The King can do no
wrong: that is, the King can do no act
but by the prescribed forms of the law:
Somebody or other must, consequently, be
answerable for it.-When the Petition
of Right was presented to Charles the
First, the House of Commons would not
accept of the King's Answer, though
yielding to their wishes, because it was
not couched in the precise and formal
phrase of the law: they therefore ad-
dressed the King for a more full, explicit,
Nor were
and satisfactory Answer.
they contented, until the King coming
down to the House of Commons told them,
"He had an answer now to give, he was
sure would please them;" and accord-
ingly, when they again presented the Pe-
tition-he returned the desired Answer
in the precise legal form, «Soit droit fait
comme il est desire," with which they were
satisfied.*

It is an acknowledged maxim in Law, That there can be no Wrong without a Remedy. When Edward the Fourth asked Chief Justice Markhamn; If he could not arrest a man? "No," said the honest Chief Justice, "Your Majesty cannot arrest any man even for treason; because the party, if aggrieved, could have no remedy; but if he was arrested by any officer of your Majesty, he could have his action for false imprisonment.' This unanswerable argument is equally applicable to the House of Commons.

To whom does it hold itself accountable?

Against whom or what can a party aggrieved bring his action?

Where look for redress?

Here is an argument, which our old lawyers considered as conclusive to any point: as may be seen in all their pleadIt is the legal, "reductio ad absurdum," a failure of justice, which neither Law nor Reason will endure.

ings.

What the Duties, Privileges, and Powers of the House of Commons are, have been already shewn. In contemplating the Constitution of this country, which will appear more admirable, the more closely it is viewed, and the more minutely it is investigated, we should be careful not to confound its parts: to bear in mind that the House of Commons is not the High Court of Parliament-that Parliament consists of three Estates-the King-the Upper-and the Lower House -That each of these has its own peculiar functions, and that no one separately has any power except over its own Members.

As the Legislative is kept distinct from the Executive, so is the Judicial from each and both. An English Court of law is an object worthy the contemplation of every mind that delights in Justice. So is every step of constitutional and legal proceeding. Is any person accused of having committed an offence, information upon oath must be given before a sworn magistrate, who is authorised to admit' him to bail, or commit him to prison according to the nature of the offence. In which last case, the warrant must clearly set forth the charge, and must have a lawful conclusion; that is, that the party shall be detained to answer the law, or

* 2 Cobbett's Parl. Hist. 409.

gal Warrant, under the Great Seal, for the apprehension of the notorious felon; the act of the 2nd of Henry the 4th; 2nd Institute, 46; and 3rd Institute, 209, are in proof. Should any more be wanting, the 1st Roll. Rep. 337, may be added; which says, "If a Warrant of Committment be

till delivered by due course and process of law. The sworn Information before a sworn magistrate, is transmitted by him to the Clerk of the Crown to be put into the form of an indictment, which is laid before a Grand Jury of 23 equals of the accused, who find or, ignore, the bill. In the first case, he is put upon his trial," for imprisoning a man till further orwhen, according to the sworn evidence be- "der, it hath been held ill; for it should be fore given, the witnesses confronted with "until the party be delivered by due the accused, twelve men on their oaths" course of Law." ascertain the fact, and the Judge upon his oath determines the law: should the party be acquitted he can never be troubled again for the same offence, he can plead his autrefois acquit from the records of the court; which will be a bar to further proceedings against him. Should he be convicted, he is committed by a warrant in execution issuing from the lawful authority, to hear and determine causesstating the offence, and concluding, that the party be safely kept, till delivered by due coure of law. Should he be molested again on the same charge, he can plead his autrefois convict-which stops all further annoyance.

In these wise and cautious proceedings, no one party can take any two successive steps: The Jury ascertains the Fact; the Judge applies the Law; the Sheriff executes the Sentence. Such is the guarded practice of the law. Yet notwithstanding, all these wise provisions and regulations, does the House of Commons, only one, and the lowest branch of the Legislature, take to itself the functions and powers of the whole Legislative, Executive, and Judicial. Skipping over all intermediate steps, over-leaping all the constitutional boundaries, they jump at once from accusation to punishment-the highest, short of death, that can be inflicted-Imprisonment; and illegal, because indefinite.

Having now stated the mode adopted by the House of Commons in asserting its right to avenge itself, for what it is pleased to call a breach of its Privileges, when the authorities which have been adduced are considered with that attention to which they are so eminently intitled, it cannot be thought presumptuous to say, That each and all of these proceedings are contrary to the Common Law, to Magna Charta, the Petition of Right, the Act of Habeas Corpus, the Bill of Rights, the basis of the Revolution, the compact between King and People; the Act of Settlement, the condition by which the King holds his crown; and the numerous Statutes which have provided for the Liberty of the subject:-That by so doing, instead of claiming modestly and necessarily, the Privilege of wearing a shield to protect themselves against the prerogative of the Crown, or any other annoyance, that may actually obstruct them in the discharge of their duty to and for the People, the House of Commons has assumed the Power of using a sword against the Liberties of that People; those Liberties which they are bound, in a peculiar manner, to maintain and defend:-That, by proceeding thus, they have exercised a jurisdiction not vested in them; a jurisdiction beyond the limits of King, Lords and Commons, whilst Magna Charta remains unrepealed; and repealed it can never be, till England shall have found her grave in the corruption of a House of Commons:

The Speaker of the House of Commons will, no doubt, be able to shew an example, which may be erroneously termed a Precedent, of a Warrant similar to that by which Mr. Jones has been committed to Newgate. He will, no doubt, be able to point out the time when such Warrants were issued; but it must be observed, that it is as strongly marked withthe stamp of illegality, as every other part of the proceeding in fact, it wants every ingredient of a lawful Warrant: it neither issues from lawful authority, nor contains lawful cause, nor has a lawful conclusion. Of this, the case above quoted of the ille-ence noxious and unwholesome.

That, by this act, they confound the Legislative, Executive, and Judicial functions, which the Constitution has wisely ordained shall always be kept separate and distinct.

VOL. XVI.

Being but one and the inferior branch of the Legislature, it has shot beyond its due limits; not a tendril only (an exuberance instantly to be lopped), but pushed forth its arms till they over-top the other trees of the forest; rendering all beneath its shade, and within the reach of its influ

M

of the Courts of Law authorised to take cognizance of offences and to inflict punishments, has been traced through every step; it now remains to contrast the legal practice with the proceedings of the House" of Commons.

John Gale Jones having (according to the words of the Speaker's Warrant), written and caused to be printed, “ A certain Paper containing libellous reflections on the character and conduct of the House