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considerations that must shew that sir told, that because it was a libel, it could Francis Burdett could not have been influ- not be a breach of privilege? But it bad enced by any anti-constitutional motives been argued, that a libel, though a breach in his public conduct. He derived those of privilege, ought not to be punished as well-grounded presumptions from the hon. such, but generally as a breach of the baronet's amiable private character, his peace. Here they had a libel admitted to great stake in the country, and his ancient be a breach of privilege, and that admisfamily.
sion ended the argument so far; for if Sir John Anstruther difered most mate- they had privileges they must have the rially from the noble lord who had just power of supporting them. He, however, sat down, in many points, but in none denied altogether that an offence amountmore than as to his sense of the impor- ing to a breach of privilege was removed tance of any attempt, from whatever quar- out of the jurisdiction of that House, beter, to wean the feelings of the people of cause that breach of privilege was also a England from the support of that Iouse. libel. The House stood in that peculiar situation, The hon. baronet began his Letter with that it behoved it to guard itself equally staling, that “the House of Commons from the invasions of ihe influence of the having passed a Vote, which amounts to a crown on the one side, and the advance- declaration, that an order of theirs is to ment of popular encroachments upon the be of more weight than Magna Charla other; and the best way to do that effec- and the Laws of the Land.” This was an tually was uniformly to support its own insidious and false way of statiog a rights and privileges. These privileges groundless proposition-a groundless cahad never been exercised but for the lumny. What was the question ? Did the good of the country at large, and it could House really act in violation of Magra not be for the benefit of that country to Charta and the law of the land? What shrink from the discussion, and the sup- was the law of the land ? Where was it to port of them. The question now before be found? Where were they to look for the House was exiremely clear, whether it! He knew of no place to look for it but there had been a libellous publication in the practice of that House and the against the rights and privileges of that other established courts of jurisprudence. House, or not; whether the rights and What, then, was the privilege claimed by privileges, so long exercised by that that House?-hat that House being a House belonged to it, or not; and if they third branch of the legislature, should did, whether the House had or had not, have the power of preventing or removing the right of enforcing them. And here he all obstructions thrown in the way of the would ask, if it was necessary for the free exercise of its judgment-all conHouse at that time of day seriously to in- tempts must be allowed to be classed unquire, whether it had the privileges said to der the head of such obstructions-all ca. be infringed upon by that publication ? lumnies circulated against the free eserThe first thing that presented itself in the cise of their right of judgment would be shape of even a plausible objection to the adınitted at once to be breaches of priviexistence of the privilege in question was, lege; and, if such calumnies, instead of that this was a libel, and therefore did not evaporating in words, should be elabocome under the head of a contempt of rately embodied in a printed paper, was court. Admitting it, howerer, to be a the breach of privilege the less, or did it, libel, how did it follow that it was not a on that account, cease to be a breach of breach of privilege? Was it no breach of privilege ? Should the House of Commons privilege bere, because it was an offence suster itself to be run down in such a manof another kind elsewhere? Or, was it to ner? Was there a common club of the be said, that because the offence had such meanest description that had not in itself extent as to be punishable elsewhere, it a power of protecting itself against such was therefore not punishable here, a posi-calumnies from its own members? Obtion which could not be maintained unless structions, it could not be denied by any the latitude of the crime was to be made man, the House had a right to remove; a ground of comparative impunity? The and, not merely personal obstructions, for offence was indiciable in one of the courts there were obstructions, which, though of law. What then? Because it was so, not operating by actual personal force, were they to pass it over without notice; had yet the same effect in ultimately in. that was, in other words, were they to be fluencing the decisions of that House, Whatever went to prevent the free exer- he claiming more for the House of Comcise of the judgment of that House was a mons than belonged to the lowest court? virtual obstruction, and as such ought to The lowest court could punish for conbe remured. Were such obstructions al tempt, and, what was more, no court together unprecedented ? Had they been would interfere in commitments for conin other times unusual? How had the tempt by any other. So that the House vote been carried against lord Strafford ? by inforcing this privilege asked for noHad the exercise of the judgment of the thing more than what belonged to every House been free and uncontrouled in that other court. That House had therefore instance? When the walls were placard- the power of judging of its own privileges, ed with menaces, and members hooted and of protecting those privileges. That and halloo'd by the mob as Straffordians, power, however, like every other power, as they passed to and from the House :* | admitted of abuse: but the abuse of a And why might they not do the same to thing was no argument against its existe morrow? Aye, but then it might be said ence. As to the charge of abuse of its that hooting was more like a personal ob- power, the House of Cominons might with struction than placarding and posting upon confidence appeal to the past. It would the walls. But was nothing to be con- be found that, for the last three hundred strued as an obstruction but what was per- years, in the same proportion as their sonally so? Were there no such things as authority had become more solid and ex. constructive obstructions? Impediments tended, had their exercise of that power which were not actually personal, but been calm, moderate, and prudent. which had virtually the same effect. Li- But it had been said that a breach of bels came exactly up to the case of con- privilege was no contempt. This objecstructive obstructions. The privileges of rion he did not answer, only because he ibat House were essentially necessary to did not understand it. If a breach of their its existence, and as calumny was the most privileges was not a contempt of their audangerous assailant their privileges could thority, he did not know what contempt have, was it to be supposed that the put- was. ' Again, it was objected, that if they ting that calumny in writing took from were the judges of their own privileges, the House the right of protecting itself they might make what privileges they against its influence by the punishment of pleased. But had they done so? Let the author ? Or was the House compelled, them look back, and they wouli see, that in such a case, to wait the slow progress that House had never been fond of creatof an indictment ? a remedy, that after ing new privileges, they had privileges all would not apply to the offence, as an enough to uphold their own independence, offence against the privileges of that and vindicate their constitutional authoHouse. The courts below to which they rity, and one, and perhaps the most imwould in that case apply, would not look portant of those privileges, was to prevent upon the offence as a breach of privilege, their deliberations from being impeded by they would not take cognizance of it in the attacks of calumny. The calumny, that view: they would try it as a breach in the present instance, came from one, of the peace, and not as a breach of their who had set himself high on the side of privileges.
the people. He would put the case, that The next question was, if they had that the same attempts to run down the those privileges, had they the power of character and authority of that House had judging of offences against their own pri- been made by the crown, or he should vileges ? And here perhaps, he ought to rather say the servants of the crown, and apologize to the Chair for merely asking he would ask, in that case, wbat would that question; for if the House of Com- have been the language of the gentlemen mons was not judge of its own privileges, who were now so moderate and so full of and the only judge of those privileges, he doubts upon the present question? Would for his part did not know how the House of those gentlemen have been quite so calm Commons could be said to exist at all. and considerate as they now appeared to In his judgment their independence was be?, or would not the House have heard totally gone when any other power than from them difierent language and in a themselves was allowed to be judge of much higher tone? But whatever their their privileges; and in saying this, was language might be, he would take the
same part in either case, and impartially * See 2 Cobbett's Parl. Hist, 753. defend the privileges and authority of that House against both. *Committal for other person taken up with him, and comcontempt was, however, not much dis- mitted by virtue of the same warrant, apputed, as being that which the House had plied to the King's Bench for his Habeas done at all times.
also ? The Habeas was refused in both It had been said, that the right of com- instances. Lord De Grey, a great conmitting for libel could not be traced. He stitutional lawyer, an upright judge, and admitted that it could not. They could an honest man, remanded the Lord Mayor, not trace the fact, from the very simple and why? because the reason assigned reason, that libels must have been subse- for commitment was deemed sufficient conquent to the invention of the art of print-tempt on the face of the warrant. That ing-printing unust have been coaimon great lawyer pronounced the House of before a case of libel could have occurred. Commons to be the judges of its own priBut if they could not trace the fact, they vileges. The law of their privileges was could easily trace the principle. That to be found in their own adjudications of did not depend upon the fact of printing. those privileges and their mode of punishCourts had uniformly punished calumni- ment was ihat of commitment. But ous expressions. That House had been in what were the words of Lord De Grey, possession of the right of doing so from its in speaking of this right of commitment earliest stage; and the principle upon which on the part of the House—“ They have it exercised that right was not altered by a right to commit, because it is necessary the calumny appearing in a printed form. they should.". This was the reason as. He was very far indeed from being dis signed by lord De Grey, and the moment posed to panegyrize the wisdom or pru- they parted with the right of judging dence of the hun. gent. (Mr. Leihbridge), their own privileges, that moment they in forcing the attention of the House to the ceased to be independent. libel now before them. But, now that The case of Alexander Murray was anoit was before them, and that they were ther in which the right of the flouse to called upon either to stand by, or to re- cominit had been tried by an application nounce their privileges, he admitted that for an Habeas Corpus, and contirmed. there was no receding from the broad Murray was remanded. The case of the question. It was a remark that would be Kentish petition was also in point. At found to hold without one exception, that that time the parliament was a 'Tory one; whether the government was in the hands the ininisters, Tory; the six persons who of the whigs or the tories, this power of presented the petition were committed-in committal had been always exercised hy ihe course of that year there was a change that House, and in every instance of that of Ministers; and the next year there was exercise having been questioned by an a Whig ministry, and a Whig parliament. appeal to the courts of law, the right was What did they? They not only followed uniformly confirmed by their decision; up the proceedings of their predecessors, the couris of law having uniformly justi.
biit embodied them into Resolutions; so fied that power upon the same grounds that here was a case, where in the heat of upon which they processed to hold their party contest, men dillering upon every
other subject, agreed upon this point of He was surprised at the noble lord's privilege; this was in 1701. The case of citing a publication of the House of Lords Chief Justice Holt was greatly relied upon; respecting their own privileges, as an au- but let gentlemen remember, that if Lord thority to weigh with that House in deter- Chief Justice Holt was of one opinion, the mining upon their's. He would refer other eleven Judges were of an opposite that noble lord to the answer given to that opinion. Besides, were they to be told, that publication for the vindication of the pri- the authority of other great lawyers went vileges of that House. In all times the for nothing? The hon. baronet had made House punished for libel as an attack upon light of the names of De Grey, Mansfield, their privileges. The case of the King and Kenyon; those sages of modern times; versus Flower was a proof of this. He did but it did noț follow, that the House would not want to borrow support from the other think as lightly of them as the hon. baronet. House, but he had no objection to their Besides, lord Holt never denied the right aid where their cases properly applied. of the House to comınit for contempt. Crosby, the Lord Mayor of London, was Lord Holt merely questioned the limits, sent to the Tower. He applied to the Com- whereas the hon. baronet denied the exmon Pleas for his Habeas Corpus; the istence of the power; and he candidly
cited the authority of lord Holt in aid of, ing it (whatever it was meant to be) a his own opinion, as if the authority that very harmless production, and he could objected to the excess of the power, was have wished that the zeal of the hon. gent. fairly to be brought forward as an evidence, (Mr. Lethbridge) had been better temthat the power did not exist at all! He pered. If the notice of that House had mentioned this, therefore, merely to guard not been forced to that pamphlet, it would the House against confounding the opinions have died the natural death of the nonof the hon. baronet with the judgments of sense that had gone before it. While, lord Holt. He therefore was warranted however, he acknowledged the pamphlet in repeating, that the House of Commons to be any thing but mischievous, he could in their assertion of this right, was claim- not help observing upon the gross want ing nothing more than what of right be of candour that distinguished most of its longed to the lowest and most confined ju- quotations and mis-sta'ements. In thie risdiction. Of all their privileges, none motto, the opinioni of Judge Blackstone was more important to them than that of was given at large upon the right of perpreserving their authority from those con- sonal liberty, from ihe third book of his tumelious and licentious calumnies which | Commentaries. Now, it was unfortunate had a tendency to shake their dignity by i for the hon. baroner's quotation, that lowering their character in public estima- Blackstone was himself one of the Judges tion. Attacks of this description, no mat
who remanded ihe Lord Mayor of London, ter how embodied, or from what quarter Crosby; and as to the candour, the hon. directed, whether from a mob out of doors, baronet could not have been ignorant, that, or one of their own members from within, in the same work, the King's Bench is the privileges of that House were equally stated to have the power of bailing all percompetent to resist and punish whatever sons committed on charge of certain ofform they assumed, whether they ap. fences, save those committed by either peared in the shape of a libel or of a per:
House of Parliament. Another instance sonal breach of the peace ; they would of the candour of the hon. baronel was, in either case be no less breaches of pri- his putting into what he called his Arguvilege, and as such, subject to the undis- ment so many things that had not been puted cognizance of that House.
uttered by him in that House ; thereby With respect, then, to the hon. baronet, wishing to make the House an instrument he would say, that as to the course he had of its own disgrace, in tacitly succumbing taken up, it appeared to him to be an hope to the avowal of such doctrines
. Again, less one; at least, he might be allowed he lays it down in another part of this to say, that the reasoning, upon which pamphlet, with equal candour,--- We his doctrines had been founded, did not may reasonably conclude, that all the appear to him calculated to impress con- privileges the House of Commons then viction upon those who read it; the ar- thought itself intitled to, were enumerated rangement was bad, and the management in the order of the 1st of June, 1021, as of the argument was worse. The gues- sir Edward Coke, so well acquainted with, tion, in fact, had been ofien agitated; it and then contending for them against the had been the subject of many pamphlets ondue prerogative of the crown, claimed in the time of Wilkes. The proceedings no more.” in the year 1701, and on the question But the fact was, that the House then, involving the legal jurisdiction of the as in all other cases, was employed in House of Lords in the case of Ashby and vindicating not the whole detail of their White, all these sources furnished ample privileges, but the individual right and matter to the hon. Baronet, but he might privilege in question. The pamphlet was, have borrowed with more selection than be repeated, deserving only of contempt, he had done. Indeed, the pamphlet of and he had therefore not the slighiest ap. the hon. baronet teemed with evidence of prehension as to any effect it could have dull, clumsy, ill-digested plagiarism, old upon the sound good sense of the people and exploded doctrines revived without of England; at the same time, the privieven their original strength, and put so leges of that House could never suffer badly, as if they were either wholly mis- from discussion—the more they were disunderstood, or stupidly misapplied; and cussed, the firmer they would stand. this naturally brought him to the con- What the House meant to do, he was at a sideration of the importance of the pamph- loss to know. The pamphlet appeared to let in question. He could not help think him to be an aukward compilation of very bad arguments in very bad language; / of bad taste, but, in his conclusion, ad. and he must again repeat his wish that mitted, that it could do no harm. The such a work had been left to its own fate. | learned and hon. gent. also accused his He could not extol the wisdom or the hon. friend of want of candour, and for prudence of the hon. gent. (Mr. Leth- proof of it, referred to the quotation on bridge), in visiting it with a character of the title page. This might have proceedimportance so foreign to its own merits. ed from inadvertence or accidental inac. He would advise that hon. gent. the next curacy; but, supposing that not to have time he felt bis zeal prompting him so been the case, want of candour could be hastily, to pause a little to consider the no ground for complaining to that House. ulterior consequences a first step in sach The right hon. and learned baronet, bow. matters might lead to. He would advise ever, before he accused his hon. friend of that hon. gent. before he took a similar want of candour, should be certain that proceeding in future, to consult with he had acted with complete candour himothers whose experience might be found self. He had referred to the Resolutions to equal bis own, and whose counsel might of the House in the year 1621, in which prove no unworthy or unnecessary acces- the privileges of the House were enume. sion to the native resources of his own rated, and in the giving of which he acpractical wisdom.
cused his hon. friend of having made an Lord Folkestone expressed himself to be omission, whereas in fact, the Resolutions the more desirous to follow the learned referred to by the right hon. and learned gentleman, because, though a gentleman gent. were those of December, 1621, and of so grave authority, he found himself his hon. friend referred to those of June, compelled to say, that he differed from 1621, drawn up, as was supposed, by lord him widely, on almost every point to Coke. which he had alluded.
The hon. gent.
Another hon. and learned gent. the who brought forward the motion, had ab- other day, had complained of the publistained from stating what were his views cation in question, in as far as it presumed of the subject, and this he had a right to to doubt of the legality of the Speaker's complain of on the part of the House. In warrant. The jet of his hon. friend's arthis respect the hon. gent. had left the gument, however, was fair on this point; question entirely open to conjecture of and if he could question the validity of
He had not failed, however, such a warrant at all, was exactly such as to inform the House, bow much he had he must be supposed to have used. Bebeen alarmed by the speech of the hon. fore gentlemen pronounced the worthy baronet (sir F. Burdett), and how anxious baronet guilty of so serious an offence as he felt to see a check given to the prac
that which the motion inferred, on a tices in which that hon. baronet had been ground such as this, they were bound to in the habit of indulging. Such an ef. look to the opinions of authors of reputafect, indeed, had the speech of his hon. tion and weight, on the subject of war. friend, the worthy baronet, had on the rants, and to their description of those hon, mover, that, as he himself expressed which bore the marks of being legal or it, “his hair stood on end."
illegal. Hawkins, in his Pleas of the duct of the hon. mover had been attended Crown, talking of legal warrants, laid it with disagreeable effects; for, from this down that four things were necessary in circumstance of their being in utter ignor- them; as, the hand and seal of the perance of the ideas of the hon. mover, every son by whom the warrant was granted ; gentleman had taken an opposite view of lawful authority on the part of the person the matter. Some complained of one ex. granting the warrant; lawful cause for pression, others of another. The hon. and granting it; and, a lawful conclusion. In learned gent. who had just sat down, ac. all of these respects, so far, at least, as cused his hon. friend of inaccuracy, but they could be seen on the face of the warprincipally of bad taste. The motion of rant itself, the paper authorising the comthe hon. mover went to this, That the pub- mitment of Gale Jones was deficient. lication of the worthy baronet was a scan. Was it not, therefore, too much to lay it dalous and libellous paper. The learned down, that for a person unlearned in the gent. who had just sat down, however, had law to hold, agrecably to the opinion of taken no steps to prove that the publica- writers on that subject, that such a warrant tion was scandalous or libellous; he only wasillegal,was a gross and scandalous libel? attempted to shew, that it exhibited proofs Another right hon. and learned gent. had