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Resolutions of the House of Commons, Sir “amount of forty shillings ;” and le esFletcher Norton said, when Attorney Ge- pressly lays it down, “ That no Court not neral, (and he was afterwards selected, for «s of Record can fine or imprison,” as rehis knowledge of the laws, usage, and cus- solved per totam curiam, on argument in tom of parliament, to fill the Chair,)“ He Griesley's Case, as well as by Holt, in the would pay no more respect, than to the Case of Grenville, versus Barwell. To imResolutions of so many drunken porters at pose a Fine of the lowest denomination an ale-house.” The expression was coarse, the House of Commons has relinquished but the principle is just.
its former pretensions. If it does not, then, It has been shewn, from the Opinions of presume to impose the smallest Fine, does learned Judges-from the Declaration of it not necessarily follow, that it cannot inboth Houses of Parliament, when not flict the higher punishment of Imprisonjudging in their own cause,—and froin ment? It is an acknowledged maxim in undeniable legal Maxims, that the power Law : “ Cui minus non convenit, ei non majus exercised by the House of Commons, of convenit ;' and of how much more value, passing a Sentence of Imprisonment upon in the eye of reason and the Law, is a any person, not a member of its body, is man’s Person, than his property, though contrary to the Common Law, to Magna it protects both? To what end, indeed, Charta, and every constitutional principle. should a man acquire Property, if his perI will now go further, and undertake to son is insecure? The notion entertained prove, that not only every fundamental by our old lawyers, respecting Imprisonprinciple of the Common Law has been ment, which is the highest execution of violated, but that every express provision the law short of death; the importance of the Statute Law, for the personal secu- attached by them to the power of impririty of the subject, has been transgressed. soning men, may be collected from Lord For which purpose it will be necessary to Coke, who says, “ That a man in prison examine strictly, and with the utmost pre- " is dead in law; he is homo mortuus, lost cision, what the legal and constitutional “ to society, himself, bis family, and his functions of the House of Commons are : friends; and that a man indefinitely imsupposing, for the sake of the argument, prisoned, is a man in Hell.” And the that they are the fairly chosen Represen. Gospel says, “ Is not the Life more than tatives of the People. Its Privileges we meat and the Body than raiment ?" in have enumerated from the highest autho
which word “ raiment” all external posrity. Let us now consider its Powers-sessions are included. begging that the Reader will never lose This part of the subject may be reduced sight of the wide distinction between Pri- to a Syllogism :vilege and Power.
No Court, that cannot hold Plca of Its Powers, then, briefly are: To remove Debt or Damage to the amount of Obstructions to its Proceedings : to abate a forty shillings, is a Court of ReNuisance legally called Contempt: As the cord: Grand Inquest of the nation (which very
The House of Commons can hold no term is enough to shew that its office is such Plea; but to inquire, not to punish), it has au- Therefore is not a Court of Recordthority to summon Witnesses for the pur- therefore cannot fine or imprison. pose of instituting Inquiries into Pablic We will now try this pretension of the Grievances-of controuling Public Expen House of Commons by the test of its own diture, and of impeaching Public Delin-proceedings. quents, in furtherance of justice, with a The party is summoned to the bar to an.. view to Judgment at the Tribunal of the swer interrogatories. Should he be unwill. Laws.
ing to do this, he is sent to prison.-See Such being its Powers, it will be neces- the Case of Mr. Howard, 1675* Should sary, in the next place, to examine it in he confess, he is likewise sent to prison. another point of view, viz. as a Court ex. See the Case of Mr. Jones, 1810. No legal ercising judicial Powers. And here, at the evidence can be brought. The House is outset, we discover, that it is not a Court stopped in limine; for it cannot administer of Record, because it cannot hold Plea of an oath, and Magna Charta, who, says my Debt or Damage to the amount of forty Lord Coke, is such a fellow, that he will shillings. Lord Coke says,
" That a
bear no equal-arrests its further progress “ Court not of Record, is where it cannot “ hold Plea of Debt or Damage to the
4 Cobbett's Parl. Hist. 770.
- declaring, "That no man shall be put of trial-no rules of judicial proceeding“to his law on the bare suggestion of an being no Court of Record-not presuming “ other, but by lawful witnesses.” There- to fine-not competent to administer an fore, the House cannot proceed to trial : oath-nevertheless, it takes upon itself; consequently, can deliver no Judgment, first, to determine the crime ex post facto: can pass no sentence. Magna Charta de- secondly, it calls upon the accused, to criclares, “ That no freeman shall be arrest- | minate himself, contrary to every princi"ed, imprisoned, or in any way destroyed, ple of English law: and in this extrajudi" but by the Judgment of his Peers, or the cial manner upon a man criminating him“ Law of the Land;" and these words, per self (so far as avowing himself the author legem terræ, or law of the land, are well and of what has not been proved to be a crime, fully explained by the statutes in confir- can be called criminating himself) the mation of Magna Charta. The 5th, 25th, House proceeds to Judgment, and invest28th, 37th, and 42d of Edward the 3d : ing itself with all the powers of Grand which declare, That no man shall be put Jury, Petty Jury, Accuser, Judge and to answer without presentment of good and Executioner, without evidence, without lawful men, before Justices, or maiter of trial, it pronounces a Sentence of indefirecord, or writ original, or in due process nite imprisonment, and this in its own of law. They also declare, That all enact- causewhere, least of all, it should take ments contrary to Magna Charta, are ipso upon itself to decide. facto null and void. And hereupon, says
Let us next examine these proceedings Lord Coke, all Commissions are grounded, by the rules of the Law, and again recur always having this Sentence, « Facturi to that grand expounder of the Law, Lord quod ad justitiam pertinet, secundum legem et Coke ; who says, 1st Inst. sec. 3d."No consuetudinem Angliæ.” It is not, says
Lord “ man can be arrested or imprisoned conCoke, “ Secundum legem et consuetudinem “ trary to the form of the Great Charter." Regis Angliæ,” lest it should be thought to 20 Inst. 46, 3d Inst. 209—"No person is to bind the King only. Nor is it, “ Secundum be iinprisoned, but as the law directs, legein et consuetudinem l'opuli Angliæ," lest “either by command, or order of a Court it may be thought to bind the People only; “ of Record, or by lawful warrant, by -but per legem terræ, id est Angliæ, that the " which one may be detained lawfully to law may extend to all.
“ 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 mian“ 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 void ture Parliaments, that instead of this or- because contrary to Magna Chartadinary and precious Trial per legem terre, 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 swer-not being indicted or appealed by all, we should day to heart, that warning the party or other process of law. By the given to future Parliaments, not to take 2d of Henry 4th it is enacted, " If any man away the precious Trial by Jury, and not be arrested or imprisoned against thě form to introduce discretionary jurisdiction con of the Great Charter, that he be brought trary to Magna Charta and the Common to his answer and have right.” law*
These are some of the numerous ProviYet,' limited and circumscribed as the sions for the safety of the people, arising House of. Commons is—having no means
out of the Common and recognized by
the Statute Law. These are the glorious * See I Cobbett's State Trials, No. 26. Privileges of Englishmen; their impre
scriptible, inalienable Liberties : “claimed, Certainly not to bind the Subject. It is insisted upon and demanded” by the Bill universally admitted by all writers upon of Rights, and sealed and sanctified by the the science of Government, that the legisblood of their forefathers :
lative, executive, and judicial powers in “ At once the pride and safeguard of the land." a state should be kept distinct; that the
Shall these Bulwarks, that have with- monster Despotism is generated by their stood the pelting storms of the Prerogative union; and that Justice and Liberty are of the Crown, be sapped and undermined promoted and assured by these powers by the creeping Privilege of Parliament? being kept separate and distinct. Ac. Yet will this be the case, if the House of cordingly, the Laws of England keep not Commons be permitted to usurp a Power only the great outlines, but every part of never pretended to by our most arbitrary each feature distinct. The greai outlines kings. But no ! the Laws, Cases, and are, The King entrusted with the execuAuthorities, before cited, are positive: tion of the Laws; yet cannot the King They make no reservation of Privilege of execute any law; but he is bound to deParliament; much less of Power of the legate his authority to officers of the House of Commons; but on the contrary, law. Why? --because, if it were otherare conclusive against both.
wise; if a subject was injured, he could Let us now try, by another touchstone, have no redress. There would be a this Power exercised by the House of wrong without a remedy; which the law Commons.
will not endure. The King can do no It is an acknowledged maxim in Law, wrong: that is, the King can do no act That there can be no Wrong without a but by the prescribed forms of the law: Remedy When Edward the Fourth Somebody or other must, consequently, be asked Chief Justice Markhain; If he answerable for it. When the Petition could not arrest a man? “ No," said the of Right was presented to Charles the honest Chief Justice, “ Your Majesty First, the House of Commons would not cannot arrest any man even for treason; accept of the King's Answer, though because the party, if aggrieved, could yielding to their wishes, because it was have no remedy ; but if he was arrested not couched in the precise and formal by any officer of your Majesty, he could phrase of the law: they therefore adhave his action for false imprisonment.” dressed the King for a more full, explicit, This unanswerable argument is equally and satisfactory Answer. Nor applicable to the House of Commons. they contented, until the King coming
To whom does it hold itself accounta. down to the House of Commons told them, ble ?
“ He had an answer now to give, he was Against whom or what can a party ag. sure would please them ;” and accordgrieved bring his action?
ingly, when they again presented the PeWhere look for redress ?
tition he returned the desired Answer Here is an argument, which our old in the precise legal form,“ Soit droit fait Jawyers considered as conclusive to any comme il est desire,” with which they were point: as may be seen in all their plead. sati fied.* ings. It is the legal,
reductio ad absur- As the Legislative is kept distinct from dum," -a failure of justice, which neither the Executive, so is the Judicial from each Law nor Reason will endure.
and both. An English Court of law is an What the Duties, Privileges, and object wortby the contemplation of every Powers of the House of Commons are, mind that delights in Justice. have been already shewn. In contem- every step of constitutional and legal proplating the Constitution of this country, ceeding. Is any person accused of hav. which will appear more admirable, the ing committed an offence, information more closely it is viewed, and the more upon oath must be given before a sworn minutely it is investigated, we should be magistrate, who is authorised to admit careful not to confound its parts : to bear him to bail, or commit him to prison acin mind that the House of Commons is cording to the nature of the offence. In not the High Court of Parliament-that which last case, the warrant must clearly Parliament consists of three Estates--the set forth the charge, and must have a law. King--the Upper—and the Lower House ful conclusion; that is, that the party _That each of these has its own peculiar
shall be detained to answer the law, or functions, and that no one separately has any power, except over its own Members.
2 Cobbett's Parl. Hist. 409.
till delivered by due course and process of gal Warrant, under the Great Seal, for the law. The sworn Information before a apprehension of the notorious selon; the act sworn magistrate, is transmitted by him of the 2nd of Henry the 4th ; 2nd Institute, to the Clerk of the Crown to be put into 46; and 3rd Institute, 209, are in proof. the form of an indictment, which is laid Should any more be wanting, the 1st before a Grand Jury of 23 equals of the Roll. Rep. 337, may be added; which accused, who find or, ignore, the bill. In says, “ If a Warrant of Committment be 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 Having now stated the mode adopted oath determines the law: should the by the House of Commons in asserting party be acquitted he can never be trou- its right to avenge itself, for what it is bled again for the same offence, he can pleased to call a breach of its Privileges, plead his autrefois acquit from the records when the authorities which have been of the court; which will be a bar to fur- adduced are considered with that attention ther proceedings against him. Should he to which they are so eminently intitled, it be convicted, he is committed by a war- cannot be thought presumptuous to say, rant in exécution issuing from the lawful That each and all of these proceedings authority, to hear and determine causes are contrary to the Common Law, to Magstating the offence, and concluding, that na Charta, ihe Petition of Right, the Act the party be safely kept, till delivered by of Habeas Corpus, the Bill of Rights, the due coure of law. Should he be molested basis of the Revolution, the compact beagain on the same charge, he can plead tween King and People; the Act of Sethis autrefois conrict—which stops all fur- tlement, the condition by which the King ther annoyance.
holds his crown; and the numerous StaIn these wise and cautious proceedings, tutes which have provided for the Liberty no one party can take any two succes- of the subject :- That by so doing, insive steps : The Jury ascertains the Fact; stead of claiming modestly and necessathe Judge applies the Law; the Sheriff rily, the Privilege of wearing a shield to proexecutes the Sentence. Such is the tect themselves against the prerogative of guarded practice of the law. Yet not the Crown, or any other annoyance, that withstanding, all these wise provisions may actually obstruct them in the disand regulations, does the House of Com- charge of their duty to and for the Peomons, only one, and the lowest branch of ple, the House of Commons has assumed the Legislature, take to itself the func- the Power of using a sword against the tions and powers of the whole Legislative, Liberties of that people; those Liberties Executive, and Judicial. Skipping over which they are bound, in a peculiar manall intermediate steps, over-leaping all ner, to maintain and defend:—That, by the constitutional boundaries, they jump at proceeding thus, they have exercised a once from accusation to punishment the jurisdiction not vested in them; a jurisdichighest, short of death, that can be in- tion beyond the limits of King, Lords and flicted—Imprisonment; and illegal, be Commons, whilst Magna Charta remains cause indefinite.
unrepealed; and repealed it can never The Speaker of the House of Commons le, till England shall have found her grave will, no doubt, be able to shew an exam- in the corruption of a House of Commons: ple, which may be erroneously termed a --That, by this act, they confound the Precedent, of a Warrant similar to that Legislative, Executive, and Judicial funcby wbich Mr. Jones has been committed tions, which the Constitution has wisely to Newgate. He will, no doubt, be able ordained shall always be kept separate to point out the time when such Warrants and distinct. were issued; but it must be observed, Being but one and the inferior branch that it is as strongly marked withthe stamp of the Legislature, it has shot beyond its of illegality, as every other part of the due limits; not a tendril only (an exuberproceeding: in fact, it wants every ingre- ance instantly to be lopped), but pushed dient of a lawful Warrant: it neither is- forth its arms till they over-top the other sues from lawful authority, nor contains trees of the forest; rendering all beneath lawful cause, nor has a lawful conclusion. its shade, and within the reach of its influ. Of this, the case above quoted of the ille- ence noxious and unwholesome. VOL, XVI.
They have done a Wrong without a Re- of Commons, and of some of the members medy; and have put a subject out of the thereof,” (viz. Mr. Yorke and Mr. WindProtection of the Law, by dooming him to ham), the former gentleman, not being in indefinite imprisonment without bail, or the habit perhaps of reflecting, that the mainprize-prevented from bis Writ of | known laws of his country would give him Habeas Corpus, and debarred of all redress. ample redress if he had sustained any --Thus subjecting the Liberties of the wrong, complained of what he fancifully People to a capricious Vote and discre- called a Breach of Privilege, which he as tionary Resolution of the Lower House of whimsically grounded on the Bill of Rights. Parliament.
Whereupon, Mr. Gale Jones having been Hitherto this question has been argued brought before the House and acknowledge on its own merits, from the general princi- ed himselfthe author, was adjuilged, accordples of the Common Law, and positive ing to the Speaker's Warrant, (or rather provisions of the Statutes, all concurring | prejudged) guilty of a gross libel, and on the same point, the assurance of the sentenced to be imprisoned during pleapersonal Liberty of the Subject, which is sure. not to be restrained but by virtue of a Let us apply the Rules of the Law and warrant issuing from lawful authority, Arguments of the Judges before stated, to grounded on an information upon oath. the case of Mr. Jones.
Of Lawful Warrants there are three Ist. The proceedings are upon bare sorts :
suggestion, contrary to Magna Charta. ist. A Warrant of Apprehension; in 2diy. Mr. Jones is called upon to criwhich must be recited the deposition upon minate himself, contrary to common sense, oath, and which must conclude with an and every principle of the law. order to bring the offender before some, 3dly. The House of Commons ascertain magistrale, “ To be further dealt with the fact without Evidence, being incapable according to law."
of administering an oath. 2dly. A Warrant of Commitment; the 4thly. They previously determine the offence not being bailable, which must guilt without appealing to any law. set out particularly, the sworn deposition 5thly. They deliver Judgment without of the informant, and must conclude Trial. legally, with a mandate to the jailor to 6thly. They pass a Sentence of indefin. detain his prisoner, " to answer the law.” | ite Imprisonment, contrary to law.
3dly. A Warrani in Execution after the 7thly. The Speaker issues a Warrant of party has been found guilty, by a Jury of Commitment illegal in the gross, and in all his equals. Which must contain a copy of its ingredients-10 lawful authority-no the record of conviction and of the Judg- lawful cause--no lawful conclusion-and ment; must set out precisely the Sentence wanting that essential stamp of law, a Seal to be executed according to Law, and co of office. That the public may exercise its clude with an injunction to keep the con- its own judgment, however, the Warrant victed person in safe custody, till he shall is here set forth. be delivered by course of Law : that is, till the expiration of the definite Sentence.
- Mercurii 21° die Februarii, 1810. It is now proposed to apply all the " Whereas the House of Commons hath Arguments, Cases, and Authorities referred “this day adjudged that John Gale Jones, to in the progress of this enquiry, to the “having written and caused to be printed case of Mr. Jones individually, from an "a certain Paper containing libellous reanxious wish to have the subject consider- - flections, on ihe character and conduct ed in every point of view. The practice r6 of the said House and of some of the of the Courts of Law authorised to take - Members thereof, is thereby guilty of a cognizance of offences and to inflict high breach of the Privileges of the panishments, has been traced through every said House. And whereas, the said step; it now remains to contrast the legal “ House hath thereupon ordered, That the practice with the proceedings of the House - said John Gale Jones be for his said ofof Commons.
“ fence committed to his Majesty's Gaol John Gale Jones having (according to r of Newgate : These are therefore to rethe words of the Speaker's Warrant), "quire you the Keeper of his Majesty's written and caused to be printed, “ A cer- “ Gaol of Newgate, to receive into your tain Paper containing libellous reflections " custody, during the pleasure of the said on the character and conduct of the House “ House, the body of the said John Gale