"Jones, and him safely to keep in your custody; for which this shall be your suf"ficient Warrant.- Given under my Hand "this 21st day of February, 1810, CHARLES ABBOT, Speaker." "To the Keeper of his Majesty's "Gaol of Newgate.". Let this Instrument-this thing sui generis-be contrasted with the description above given of the properties of a lawful warrant. Does it not evidently appear, that this piece of unsealed paper signed by the Speaker, by which an untried subject has been outlawed, bears no feature of Legality? And that from the commencement of this proceeding-in its progress and to its conclusion-there is not one step that has not been marked in a peculiar manner with disrespect for the laws-a disrespect in which all the parts have been wonderfully consistent throughout, in constituting the most unlawful act the mind of man can possibly conceive. Let the case of Mr. Jones now be measured by the arguments of the Judges before cited: which Arguments were held by the House of Lords as conclusive against its pretensions. any twelve lawful men in England could be had to find a verdict of Guilty, then would he be punished twice for the same offence? He could not prove his former conviction, because he could not produce the record of his former sentence; because, the House of Commons is no Court of Record, therefore incapable, by law, to furnish a copy of the record; because the law does not allow that House to try and determine any cause. To determine is beyond its limits, as hath been shewn: its incapacity is clearly proved by the legal circumscription of its powers. We will next suppose that a Jury can find no injury to have been sustained by Mr. Yorke, and should return a verdict of Acquittal: then will Mr. Jones have been sentenced to undergo the most severe punishment short of death, that of indefinite imprisonment, by an Order of the House of Commons, for having done an act not proved to be a crime; on the contrary, which will have been determined by a Jury of his equals, not to have been an offence, as in the case of Reeves; with whom the minister dealt more tenderly by giving him, his creature, the benefit of the law; when a Jury contradicted by their legal verdict the predetermined Judgment of the House of Commons; but, if a Jury were to do the same in the present case, Mr. Jones could have no remedy for the wrong done to him-he cannot bring his action for false imprisonment against Mr. Yorke, nor against the House of Commons, nor the Serjeant The Judges claimed and insisted upon the benefit of the Common Law, Magna Charta, and Trial by Jury, for any thing in which they might have done wrong; not because they were Judges, but because they were commoners of England. They denied and rejected the jurisdiction of the Lords, and assigned their reasons: "Because, in that case, the fact would be "ascertained, and the law would be de-at Arms, nor the Sheriffs, nor the Jailor: "termined by the same party, and that "if they should be punished by the Lords, "that would not prevent their being call"ed to answer again in the Courts of "Westminister hall, where they could not plead an autrefois convict, or autrefois "acquit: and so, they might be punished "twice for the same offence." Let us apply this reasoning to the case before us: It hath been shewn, that the Common Law, Magna Charta, and Trial by Jury have been violated. We find Mr. Jones imprisoned for an act, the illegality of which has not been proved-the facts not ascertained-nor the law determined. Yet is he now undergoing such a Sentence as hath been shewn. And, as to the other part of the Argument of the Judges what is to prevent Mr. Yorke from preferring a Bill of Indictment, according to law, against Mr. Jones for this same act: And if we can suppose, that that is to say, if the Courts of Law should tell him, as they have told others heretofore, that they could not interfere with the House of Commons. Anxious to have this Case thoroughly considered, and to leave no loop to hang a doubt on as to the true character of the Proceedings of the House of Commons, we will suppose it may be said, that Mr. Yorke took this method, by calling out Breach of Privilege, of punishing Mr. Jones, as the act was not properly cognizable by a Court of Law. To this is to be replied, in the first place, That if an act is not cognizable in a Court of Law, no offence has been committed: because an Englishman is at liberty to do every thing not forbidden by the law. But, a fact has occurred, that proves that Mr. Yorke, if aggrieved, had his remedy by due course and process of Law: as a legal Bill of Indictment has been preferred by another member of the House of Commons (lord Castlereagh) against Mr. Jones, as the auther of a placard of a similar nature (inviting discussion) and found by the Grand Jury. And, in the event of Mr. Jones's being convicted by law, there is nothing to prevent lord Castlereagh from complaining of a Breach of Privilege after Mr. Jones has undergone the limited sentence of the law, and getting him sentenced by the House of Commons to unlimited imprisonment for the same offence. Mr. Jones cannot plead his autrefois convict, though he may procure the record from the Court of Law where he was convicted. The House of Commons will not receive it; so that he may be punished, once by a Vote of the House of Commons contrary to law, and by Bill of Indictment according to law-and again,-by Bill of Indictment by the law, and by Vote of the House of Commons against all law, all for the same offence, for the legal and probable duration of the life of man. The Speaker's Warrant (if it can be called by such a name) which has been set out at length, commits Mr. Jones, during the pleasure of the House of Commons." It has been shewn, that a lawful warrant should issue from lawful authority should assign lawful cause, and should have a lawful conclusion. A Speaker of the House of Commons is no Legal Magistrate-his Warrant assigns libel-is not libel bailable? But it may be pretended, that the Culprit has been tried and condemned-This is a Warrant in execution.-A Warrant in execution by a Speaker of the House of Commons on a sentence of imprisonment!!! for a month-or six months-or a year-or seven years-or for a day-or an hour! Let not the people think that this statement is incorrect, because that the facts stated are nearly incredible. The House of Commons, that does not pretend to a right of committing any person for custody, even one hour-yet insist upon and exercise the power of passing a sentence of imprisonment, during the pleasure of the House! Not to be "delivered by due course of law," nor to "answer any law." For what law is he to answer? for what offence committed? Or, is the alledged offence of so heinous a nature as to preclude the supposed offender from bail? By what law can he be delivered? To what law can he appeal? What is the term of his confinement? "During the pleasure of the House of Commons." Here is an Englishman outlawed; put out of the protection of the King's law by order of the House of Commons, who are peculiarly bound to protect and defend the Liberty of the Subject.-The House of Commons, which is no Court; which cannot fine; which the law forbids to pass any Judgment; which cannot administer an oath; which cannot take any one step according to law, for the best of all reasons, because the law recognizes no such Court, nor allows it any such power, as passing a definitive sentence. But, it is truly admirable, how consistently the House of Commons has acted throughout the whole of this Case, always measuring its proceedings by the line of its own discretion, instead of the golden meteyard of the Law-a principle, which if once admitted-admitted!! if not reprobated, and resisted, the inevitable consequence will be, the total subversion of all Law and Order. For what makes the distinction between a state of Liberty and a state of Slavery, but being guided and protected by known laws common to all, or being subject to variable, arbitrary, and uncertain discretion." Misera servitus est, ubi jus est vagum, aut incognitum." Wretched is the slavery of him who lives under uncertain laws! If the Judges of the Laws of England. in the days of lord Holt, thought so justly, and acted so firmly and decidedly in their case, so have we witnessed in our time, how acutely a learned Judge of the Civil Law, sir William Scott, can feel, when even a presumed injurious suspicion is thrown out, though no punishment has been inflicted upon him without trial or a fair defence. And here it is impossible to avoid remarking, how tender-skinned some men are upon being touched themselves! how susceptible their feelings! how tremblingly alive to the slightest annoyance! The learned Civilian felt nothing for poor Jones, sent to jail without trial, without an opportunity of making his defence. His own words will best express his feelings on the occasion alluded to, which was on a charge brought forward in the House of Commons by lord Cochrane, my most worthy colleague, against the Court where the learned Civilian presides; when he said: 66 That the accusation was brought for"ward against the Court where he pre"sided, when there was no possibility of "a defence, and thus allowed to impend " for many months over the head of the "court, which could not demand its trial, " and of course could not ward off a most "painful and depreciating suspicion; this "was a mode of proceeding which could not "be sufficiently deprecated, nor too severely reproved. It was placing a man in the "situation of a supposed culprit, in whom "every guilt was likely to be presumed, "and from whose society every innocent "man was ready to fly, abandoned by "society, cut off, and in a manner excommunicated, he might in the end appear completely guiltless, and prove by "his acquittal, that his only misfortune "was not being allowed, in time, an op"portunity of defence. Notwithstanding "the cruelty of this, many men were to "be found anxious to bring forward an "unfounded accusation, and the world, in "general, was but too prone to its recep❝tion. He deplored the custom, and "deprecated its continuance; and he did "so the more earnestly, feeling acutely "its injustice in his own case."-And, in these feelings the House of Commons sympathized. | posed in the House of Commons: "That "Mr. Gale Jones should be then discharged." In opposition to these arguments, it was, in the first place, relied on, That this power of Commitment had been exercised for three hundred years. In support of which assertion, only two instances were adduced. One of Ferrars, a member and servant to the king, before cited; and one Mornington, who beat Mr. Johnson a member, and pleaded ignorance of his being a member of the House of Commons*. But of what importance are these two Cases? For their own acts, were they ever so numerous, can never be admitted as Precedents to establish their own claims. Sir Thomas Bromley, Chancellor in the reign of Ellzabeth, denied that their own acts could be cited as Precedents, when they were insisted on by a Committee of the House as proofs in support of their claim to a privilege of not being liable to be subpænæd in Chancery. Sir Thomas Bromley said, that unless those precedents had been confirmed by the the Court of Chancery, they were of no availt; and all Lawyers know that a legal precedent is established by a decision of all the Judges, on an Argument at Bar. Nothing can be more mischievous or more calculated to mislead, than to use legal terms in a popular sense; and though the word Precedent in popular language The Roman Satirist, when lashing the means any thing that went before; yet, vices of a corrupt country, particularly in a strict legal sense it means a Decision upbraids the absence of feeling, gene-upon Argument, one of which is worth a rally, exhibited for the sufferings of small thousand without. men in humble stations. The poor man may lose his goods and all his effects. Should his house be burned to the ground, no one troubles himself about it. But, if misfortune touches the great, then, all partake of the general sorrow: He complains in the style of the Civil Law of being excommunicated. Mr. Jones remonstrates in the language of the Law of England against being outlawed, without having been found legally guilty of any crime. "Magna Arturii cecidit domus, &c. From Custom or Usage such a claim never can be set up; for a custom to obtain must be reasonable in itself; must have been used from time immemorial; must be pro bono publico-not contrary to law, and never contested. From Common Law it cannot be de "Tunc gemimus casus urbis; tunc odimus rived; because at common law, a man ignem." Poor Codrus excites no sympathy: "But if the palace of Arturius burn, The nobles change their clothes, the matrons mourn; The City Prætor will no pleadings hear; The very name of fire, we hate and fear; And look aghast, as if the Gauls were here." From the conviction on my mind of the justness of the sentiments here expressed by the learned Judge; and from as well weighed and fully digested an opinion as my researches enabled me to make, and my reason instructed me to form, I pro could not be imprisoned in any case, unless for force or violence-for which his body was subject to imprisonment, as one of the highest executions of the law. And, that it is forbidden by all the Statutes, it is to be hoped has been sufficiently proved. Therefore, unless it can be shewn, that an Order of the House of Commons can contravene all these authorities, there can be no pretence on which this usurpation can be maintained. And to talk of the Law of Parliament as con- | conduct, the Judges determined, that the tra-distinguished from and contradictory Act of the fourth of Henry the Eighth was to the Acts of Parliament !-It is a phan- a private Act, though made expressly tom fitter to be entertained by the fancy to prevent members from being quesof a Bedlamite than by a Lawgiver. tioned, in consequence of Mr. Stroud having been questioned in the Court of Stannaries, and fined and imprisoned by that Court, on account of a bill he had introduced into the House of Commons for regulating the Tinners in Cornwall. Therefore, it is not upon the authority, but upon the weight of the arguments above cited, and honest arguments they were, of unfeed Counsel in their own cause, that we rely. Notwithstanding the care that has been taken in the progress of this enquiry to keep legal words from being used in a popular sense, and to prevent a confusion of ideas arising therefrom, it will be necessary in this case to adopt the mode which has been invariably pursued, and to define correctly the legal meaning of the term about to be discussed. For, by not attending sufficiently to this distinction, much embarrassment was created during the former discussion of this subject in the House of Commons: few persons having been able to keep sufficiently separate, things, in their nature so essentially different, as the power of Commitment for a legal Contempt, (or abatement of a nuisance), and the passing of a sentence of Imprisonment as a punishment for an offence. As for Modern Decisions of such men as De Gray, Mansfield, or Kenyon, they will hardly be worth quoting on either side of the question; and, for an illustration of the conduct of the last mentioned Judge upon this great constitutional question, I beg leave to refer the Reader to the Case of Benjamin Flower, and to the able Argument of Mr. Clifford in that case; to which Argument I embrace this opportunity of acknowledging myself greatly indebted; and so, in my opinion, are the public at large. In pursuing this Argument, the Reader should carefully keep in mind the marked distinction there is between Privilege and Power. No Privilege of the House of Commons is here denied. But, it may be asked, Upon what ground or pretence they assuine a Power to punish? Since they have taken upon themselves to exercise this Power, it is fair to call upon them to shew how they came by it, and when they first claimed it*. Every one knows that in a popular phrase a man is said to shew contempt for another if he turn upon his heel and do not answer a salute: but, in a legal sense Contempt has one meaning, and one only -that is, obstruction to the proceedings of a Court, which every Court is necessarily competent to remove. "Contempt is a disobedience to the rules and orders of a Court. One may be punished for a contempt in Court, but not out of Court, or a private abuse*." Whether the Case of the incorporation of St. Albans, which has been accurately stated, and the Arguments of the Judges in Bridgeman versus Holt, are or are not applicable to the case before us, must be left to the candid consideration of the Reader.-It is necessary to observe, that I lay no stress upon the authority of the Judges merely as such, recollecting full well the many opinions of Judges contrary to the Law of the Land and subversive of the Liberty of the Subject. In the case of Ship Money, the punishable by law, why is he not left Judges determined, that the King had a "to the law? By this mode of proceeding right to levy taxes without consent of the "parliament, which used to be the scourge Representatives of the People. In the only of evil ministers, is made by minisfamous Case of Habeas Corpus, in the King'sters the scourge of the subject. Bench, afterwards reversed, the Judges" former reigns, the audacity of corrupdetermined, that when the King com- "tion extended itself only to judges and mitted, the Subject could have no relief. "juries: the attempt so to degrade parWhen Charles the First imprisoned Mem-"liament was, till the present period, unbers of Parliament for their parliamentary heard of. The Liberty of the Press is "unrestrained; how then shall a part of "the legislature dare to punish that as a *See Crook, Eliz. 649. * Sir Robert Walpole seems to have entertained the same sentiments, as appears from his Speech in the House of Commons, in the Case of Sir Richard Steele, in 1714: "Why," said he, "should the author be answerable in par"liament for the things which he wrote "in his private capacity? And if he is In The commencement of this Usurpation was when they got rid of the Upper House of Parliament, and cut off the head of the King. They still, it seems, are emboldened to retain an illegal power not pretended to even by the King. But which these local sovereigns over the King, claim as of right. But no wonder, when they have so entirely departed from the ends of their institution-as was offered to be proved by Mr. Madocks, and acknowledged by themselves, in the never-to-be forgotten morning of the 11th of May, one thousand eight hundred and nine; when, from being the Lower or Inferior (for it is the same sense, one being an English, the other a Latin word), Branch of the Legislature, they have become the proprietors, by burgage tenure, of the whole Representation; and, in that capacity, inflated with their high blown fanciful ideas of majesty, and tricked out in the trappings of royalty, think Privilege and Protection beneath their dignity, assume the Sword of Prerogative, and lord it equally over the King and the People *. But, in order that nothing may be wanting, to render truly ludicrous every part of this proceeding, which, inverting the laws of the drama, as well as all other laws, begins with a farce and ends with a Tragedy, the House of Commons imprison Mr. Jones-under the sanction of what law think ye?-THE BILL OF RIGHTS!!! -Well might Paine call it the Bill of Wrongs; if it could be thus converted into an instrument to oppress and to destroy the Liberties of the People, those Liberties which it was expressly framed, claimed, demanded and insisted upon to protect. Mr. Yorke has discovered a new meaning in the Bill of Rights; and, because the Bill of Rights declares, That a member of parliament cannot be questioned any where out of parliament for words spoken therein, he has sapiently concluded, That the People are prohibited from exercising their understanding, for the purpose of discussing or censuring the conduct of the Gentlemen who sit in that House. These Gentlemen all concurred with him in the Sentence passed on Mr. Jones; though no one agreed with him in his new interpretation of the word "Question," in the Bill of Rights-knowing, as they did, that "questioned," legally, means accused before a tribunal competent to punish; and that the power intended to be counteracted was the King's Prerogative and the arbitrary proceedings of the Court of Star Chamber, which were in the constant habit of questioning and punishing Members, for their conduct in the House, as in the Case of Mr. Strode before mentioned, * Upon this memorable Debate, Mr. and of Strickland, Sir John Eliot, Col, Ponsonby, Lord Chancellor of Ireland, Churchill, Holles, Valentine, and many under the Whig Aministration, observed, others. And, surely, that cannot be deem"That he could not consent to proceeded a Privilege of Parliament which is in"against individuals, because that had "been proved to exist, which had long "been as notorious as the Sun at noonday; namely, the Sale of Seats in that "House." See Cobbett's Debates, vol. xiv. p. 519. "crime which is not declared to be so by See compatible with the Rights of the People: as the Lords resolved in the Case of Ashby and White: "That declaring Ashby guilty of a Breach of Privilege of the House of Commons is an unprecedented attempt upon the jurisdiction of parliament; and is, in effect, to subject the law of England to the Votes of the House of Commons*" And how much more so is this act of imprisoning Mr. Jones! And in a Committee of the whole House, on the 1st of June last, upon Mr. Curwen's Reform Bill, the Speaker made use of these expressions: "The question now "before us, is no less than this: Whether "the Seats in this House shall be hence"forth publicly saleable?-A proposition, "at the sound of which, our ancestors "would have startled with indignation; "but a practice, which, in these days, and "within these walls, in utter oblivion of every former maxim and feeling of Par-nity consisted in punishing, then would "liament, has been avowed and justified." See p. 837 of the same Volume. But the House, it seems, thinks that its dignity is concerned in continuing Mr. Jones in prison. That dignity should consist in punishing is a novel idea. The dignity of any man or body of men is best maintained by their doing their duty, according to their several stations. If dig * 6 Cobbett's Parl. Hist. 431. |