. day, by the person at whose request it was obtained. The case on which Mr. Fox's opinion was asked, went directly to the question here at issue; namely, whether libel on the high Court of Parliament or its members, for their conduct in parliament, is a breach of privilege, punishable by imprisonment. It is given upon a case respecting the privileges of the House of Lords, but the reasoning turns entirely upon the privilege, as maintained and exercised in the House of Commons. The strain of the opinion throughout establishes distinctly, that he thought that the House of Commons had the power to punish libel on the House or its members, in the exercise of their duty, as a breach of privilege or contempt, by such imprisonment as the House is in the practice of inflicting. It is further material to ob serve, that Mr. Fox, whose attachment to the trial by Jury was most rivetted, maintained this opinion during the whole of his life, and delivered it as his opinion in this House, the last time it was discussed, stating, that the House could not part with it, or with safety give it up to the other tribunals. Mr. Butler, alluded to lord Hale's opi- | public in the Morning Chroncle of this nion in an unprinted manuscript; that I might be sure of the quotation, I obtained from him the passage of the manuscript *. It is entitled, "A discourse, or history concerning the Power of Judicature in the King's Council in Parliament." In the eleventh chapter of that work, lord Hale says, "But surely the right of Criminal punishment of breaches of privilege of the members of the House of Commons, by long and unquestionable usage, belongs to the House of Commons; but not to give damages." Thus putting the power of criminal punishment by the House for breach of privilege, upon long and unquestionable usage; and by excluding fine or pecuniary damages, making it clear that the punishment must be imprisonment to be regulated by the nature of the usage, as it is now well understood, not for a time certain, but only at pleasure, during the session, to end with prorogation. With the authority of lord Hale, a person, whose extreme accuracy and habit of the most scrupulous inquiry would never permit him to state any right, as founded on long and unquestionable usage, which he had not discovered to be so, I might safely close this part of the argument, and call upon the House to conclude, from their own resolutions and their practice, from the authority of Courts of Law, from the writings of lawyers, that the power of commitment for breach of privilege, was clear and unquestionable. But I cannot avoid bringing under the consideration of the House, an opinion which may be justly placed in this part of the discussion, and which at once establishes that commitment is the punishment for breach of privilege; that libel on the House or its members is breach of privilege, and that the House is sole judge of the offence. The opinion to which I refer, alas is canonized by the death of him who gave it; one whose loss still creates almost an incapacity to discuss what fell from him: the greatest of all parliamentary lawyers, I mean Mr. Fox, distinguished for his love of justice and his love of liberty; who (as I have often heard him say of himself) was, as it were, brought up and educated in this House, gave an opinion on this subject, in 1798. I have been for some time possessed of that opinion; but it is now given to the * Hargrave's Judicial Arguments, vol. ii. p. 7. Mr. Perry submitted his queries to Mr. Fox, in regular order, and Mr. Fox regularly answered them. The first query is, Though the House of Lords as well as every court of justice, have the power of protecting their proceedings from unlawful obstruction, can this right extend to the commitment for the misdemeanor of libel? In answer to this question, Mr. Fox says, "There can be no right of committing but for contempt; but an act which comes properly under the description of a contempt, is not the less a contempt for being also a misdemeanor. Indeed, it is difficult to conceive a contempt which would not be a misdemeanor." Here is no limitation of contempt to the narrow, degrading ground of mere obstruction; but both from the terms of the answer, and the subject matter of the inquiry, it is quite clear that the contempt which was in his view, was the misdemeanor of libel upon the House or its members, in the exercise of their functions in parliament. The second query is likewise important. It implies, that the right is in the House of Commons, and puts the doubt as to the House entirely on the excess of punishment inflicted by that House. Second query: "Has the House of Lords, either in its legislative or judicial capacity, any power of commitment beyond that of the House of Commons? the latter never committing for a time certain, nor imposing a fine." Answer: "I do not think the House of Lords, in any capacity, has powers of commitment beyond the House of Commons; but, I believe such powers of commitment have been exercised by it; and 1 fear, without the reproof which such exercise ought to have drawn from the House of Commons." Mr. Fox's answer to this query, distinctly recognizes the power of the House of Commons, to the extent to which I have here argued it. And as the whole question turned upon a libel on the conduct of the House of Lords being a contempt, or breach of privilege, it is clear that his opinion was, that libel, as I have defined it, is a breach of privilege; and that such commitment as the House of Commons practices, is a legal punishment for such an offence. Besides, Mr. Fox explains himself in his answer to the first query, by saying, that a contempt is not less so for being a misdemeanor. He accompanies these answers with a letter to Mr. Perry and what he states in his letter, makes his opinion on the queries still more distinct and clear. He says, referring to the commitment of Mr. Perry by the Lords; "The conduct of the House of Lords seems to have been very harsh. But harsh as it is, I do not know that it is contrary to precedent, or otherwise illegal, than with respect to the term and the fine; and I do not know that my opinion upon these heads is that of any other person, much less the general one." In the latter clause of this sentence, Mr. Fox clearly refers to the difference which the term and the fine, as exercised by the House of Lords, made, and not to the general question of considering libel as contempt, and punishable legally as the House of Commons punishes it. And in the first branch of this sentence, he delivers a clear opinion in favour of the doctrine for which I contend. He afterwards observes on Mr. Erskine's letter, respecting the case of contempt in Ireland; and says, "The whole letter seems to relate more to ordinary courts of justice, than to the Houses of Parliament; but even in the case of such courts, if a man were to write contumaciously, of the manner in which a Judge gave judgment, I suspect he would certainly be attached for a contempt; though this case is not mentioned by Mr. Erskine, nor does it come perhaps strictly within the line of his argument." So that Mr. Fox entertains not the least doubt of the power of Courts to punish for contempt; and clearly considers that a contumacious attack upon a judgment pronounced, past and over, is a contempt which a Court might punish by its own authority, and without the intervention of a jury. I confess, sir, the perusal of this opinion, the knowledge that Mr. Fox retained these doctrines, as the sound doctrines of the Constitution, to the last, give me much consolation, and inspire me with great confidence in the opinion which I have endeavoured to maintain. After such a train of precedent, regularly resolved, and uniformly acted upon by the House, and acquiesced in by the public; after the opinions of Courts of Justice in public, of lawyers and statesmen in their closets, can a doubt remain as to the nature of the privilege, or the extent of the power to punish a breach of it? And is it fit that we should be told at this time of day, that we can only check libel upon the House or its members, by the interposition of the Courts of Law, and by a prosecution in Westminster Hall? Consider for a moment, Sir, how ill adapted this House is for proceeding by that course. We have not means for it, adequate even to those of a parish vestry; we have no law officer of our own; but we have to borrow the law officers of the Crown; and by their efforts, if we are reduced to proceed against libel in a court of law, we must have our cause ducted. Is it possible, under such circumstances, that those who wish well to the station and authority which this House has held, in the constitution of the country-should desire to have our redress for such offences, remediable only by a Court of Law? Do they recollect the effect of that proceeding in the two last instances in which it was adopted by the House, I mean the case of Stockdale, and the case of Reeves? The first a most libellous attack upon certain members of this House, in the great and arduous duty of prosecuting by impeachment, attacking the very essence, as it were, of our power, as the great inquisitor of the nation; the other, a direct attempt to annihilate the independence of the House of Commons, con and assert the omnipotence of the Crown | ject of its being libellous. It is a rule in in the Constitution of the country. Those every case of libel, that the whole context gross outrages against the privileges of is to be taken into consideration, by the the House; the one destructive of our in- tribunal which is to judge of it; not only quisitorial character, the other denying with a view to discover whether the words our functions, and asserting that all was charged be innocent, but whether they be vested in, and flowed from, the crown as libellous: in short, to decide upon the matter of indulgence, went acquitted and guilt or innocence of the paper. Before unpunished. Are these the means by I proceed to the examination of certain which the people's rights are to be vindi- passages of the paper, bearing the rule cated and maintained, or the privileges of which I have just stated, constantly in the Commons of England to be upheld? view, I wish to have it understood, that in Sir, if a contrary doctrine is not enforced construing a paper of this sort, I do not and maintained, now that its privileges are consider the passages which are most abuso daringly attacked, there is an end of sive in expression, as the most libellous that great security of the people's freedom, upon the House of Commons. On the so often asserted and sustained by the contrary, I think a contumelious and conjust, temperate, and firm exercise of the tumacious denial of the privileges and auprivileges of this House. thority of this House-a representation of its modes of acting, which degrades it, and brings it into contempt; a false representation of the manner in which it exercises its power-so as to bring it into hatred with the people-are libels of a more atrocious nature than that gross verbal abuse which has been so often referred to in this debate, and which my learned friend has protected from being libel by calling it nonsense. Look to the whole work; consider quo animo it is dictated, and whether the general tendency of it is not (under the pretence of representing his conduct to his constituents) to vilify and degrade the character of this House. Look to particular passages, and say whether they are not a direct libellous attack upon the constitution of the House, and the manner in which the constitutional rights have been exercised; not questioning their existence I ask, Sir, if these words can be consi- or their fitness in powerful and respectful dered as other than the most libellous? argument, a right which nobody denies, and whether, in their natural acceptation, but in terms which clearly mark the they give a true representation of the disposition of mind to be libellous and question at issue-I ask, if it is true that slanderous. In page 35 he says, "Yet the House of Commons has asserted a limited and circumscribed as the House of power to imprison the people of England; Commons is, baving no means of trial, no I ask, if it is not slanderous so to insi- rules of judicial proceeding, being no nuate; and whether this does not, in the Court of Record, not presuming to fine, not outset, stamp the character of the produc- competent to administer an oath; nevertion to be bellous? Is it true, that the theless, it takes upon itself, first, to deterassertion of a privilege to commit for libel mine the crime ex post facto: secondly, it on this House and on its members, acting calls upon the accused to criminate himin discharge of their duty here, is an as- self, contrary to every principle of English sertion of a power generally to imprison law; and in this extrajudicial manner, the people of England;" and yet that upon a man criminating himself (so far as is what is meant to be conveyed, to delude avowing himself the author of what has and deceive the public. But, Sir, on ex- not been proved to be a crime, can be amining the body of the Argument, my called criminating himself), the House mind is left without a doubt upon the sub-proceeds to judgment, and investing itself Sir, I come now more particularly to the consideration of the Argument of sir Francis Burdett-Whether that Argument is a libel or not, has been called in question even by the authority of my learned friend (sir S. Romilly.) This, in my mind, is a most extraordinary and unaccountable doubt. Sir, it is impossible to look at the very introductory sentence of the Address, without seeing that it is at once meant to libel and misrepresent. Sir Francis Burdett's Letter begins on the page after the signature of Mr. Cobbett's name. I therefore presume, that the words which follow," Sir Francis Burdett to his Constituents,' are his words, and not those of Mr. Cobbett. The passage runs thus: "An Address by Sir Francis Burdett to his Constituents, denying the power of the House of Commons to imprison the People of England." 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."-Now, Sir, I deny that this representation of the course of our proceeding in such case is true; and I assert, that such misrepresentation, thus conveyed, is a libel, and breach of privilege. First of all, it is impossible not to observe, that he sets out with denying the qualifications of the House of Commons, according to its ancient constitution, which have been sufficient for all its functions in all times, by the means of which it has made those wonderful exertions in support of the people's rights; in successful resistance to the Sovereign's usurpations; in regulating the system of this free and limited monarchy, on which I have observed in the outset. We are here represented as unfit for our duty, because we cannot administer an oath; yet in all times we have discharged our great functions, legislative, judicial, and inquisitorial, in the maintenance of freedom and order, without such a power; and it is not immaterial that these objections to the immemorial constitution of this House were not observed and noticed, when witnesses of the most dubious character were under examination in the last session. When the private repositories of one of those witnesses were ordered to be broken open, under the authority of this House, under your unsealed warrant, no objection was raised to the defect of our constitution, or the injustice of our act. Yet we are now accused, " first, of determining the crime ex post facto."-" Secondly, of calling upon the accused to criminate himself." Now, Sir, this is the first time I ever heard that a crime could be determined otherwise than ex post facto; and on this passage I must have recourse to the notable vindication, that it is not intelligible. But sir Francis Burdett, in the passage under consideration, says, secondly, "We call upon the accused to criminate himself, contrary to every principle of English law." Now, Sir, this is directly contrary to the fact, for we proceed according to the strictest rules of justice. We ask the party, if he is guilty or not guilty. If he admits the guilt, we proceed; if he denies it, how do we proceed? I desire that sir Francis Burdett may be referred to the case of Mr. Horne in 1774; to which surely he might have had access from the most authentic source. I have already stated that case fully, as it applies to this question in another point of view, I mean as a precedent establishing the privilege. I now beg the House to apply it to the matter under consideration; and I ask, whether it does not afford the most convincing proof that there is not the least foundation for the libellous misrepresentation that this House, in its judicial character, in its proceedings, and privileges, "calls upon the accused to criminate himself." Did it do so in the case of Mr. Horne Tooke, in 1774? That gentleman was not called on to say a word, but, on the contrary, was admitted' to plead, and he pleaded Not Guilty. So accurate was the House in its proceedings -so little inclined to act contrary to the principles of English law, by forcing the accused to criminate himself, that the evidence of the printer was not permitted to be read against Mr. Tooke as evidence, because it was given to exculpate himselfthat other witnesses were called-that those witnesses did not prove the factand that though Mr. Woodfall had stated that Mr. Horne was the author of the letter to sir Fletcher Norton-and though every body was morally certain of the truth of that fact, yet Mr. Horne was acquitted, because it was not legally proved, that he was the author. Can there be a more demonstrative proof, that this assertion respecting the proceedings of the House of Commons is without foundation; and if so, that it is a libel on the House, and a wilful attempt, with better knowledge at command, to mislead the people? The House is accused, by sir Francis Burdett, of being" Grand Jury, Petty Jury, Judge, and Executioner, without evidence, and without trial." With respect to the last branch of the accusation, the case which I have just referred to, proves it to be unfounded-with regard to the other part of it, it is a false colouring, calculated to mislead and irritate. The constitution of the House of Commons is, in that respect, like every other tribunal proceeding for a contempt; and it is a little curious, that those very persons who admit the necessity of committing for obstruction, seem never to have considered, that, in the case of contempt which they admit, this general charge is equally an objection. Sir, it is an objection, arising from the very nature of this necessary power vested in a supreme tribunal. But grave, and serious, and uni form as this part of the libel appears, it falls far short of that which I am about to observe. In page 43 he says, "First, The proceedings are upon bare suggestion, contrary to Magna Charta."-" Secondly, Mr. Jones is called upon to criminate himself, contrary to common sense, and every principle of the law."-" Thirdly, The House of Commons ascertain the fact without evidence, being incapable of administering an oath."" Fourthly, They previously determine the guilt, without appealing to any law."-Fifthly, They pronounce judgment without trial.""Sixthly, They pass sentence of indefinite imprisonment, contrary to law.""Seventhly, The Speaker issues a warrant of commitment, illegal in the gross, and in all its ingredients-no lawful authority-no lawful cause-no lawful conclusion and wanting that essential stamp of law, a seal of office. That the public may exercise its own judgment, however, the warrant is here set forth. 'Mercurii, 21° Die Februarii, 1810. Whereas the House of Commons hath this day adjudged, that John Gale Jones, having written and caused to be printed a certain paper, containing libellous reflections on the character and conduct of the said House and of some of the <members thereof, is thereby guilty of a high breach of the privileges of the said House: and whereas the said House hath thereupon ordered, that the said John Gale Jones be for his said offence committed to his Majesty's gaol of Newgate these are therefore to require you, the Keeper of his Majesty's gaol of Newgate, to receive into your custody the body of the said John Gale Jones, and him safely to keep in your custody during the pleasure of the said House, for which this shall be your sufficient war⚫rant. Given under my hand this 21st day of February 1810. ་ CHARLES Abboт, 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?" How groundless and calumnious all this enumeration is, and is proved to be, by what I have just stated! But that which I consider to be the most libellous and offensive, is what is said, Sir, upon your warrant. It is done, too, in some respects, with considerable address, so as to have a case for observation, which shall avoid the contumely. He says, p. 44: "Let this instrument, THIS THING"-Then come the two Latin words, “sui generis”—unintelligible to the multitude; and, therefore, conveying to those whom it is meant to poison, the unqualified and contemptuous epithet of " this thing;" but saving the general sense of the passage from that meaning, by the insertion of the words " sui generis," which may be said to qualify the contemptuous epithet. But, Sir, I do not put the injurious and most defamatory character of this part of the paper, upon any nice distinction like this; I put it, Sir, upon the gross, the unjustifiable, and degrading manner in which he attacks the warrant issued under your hand, by the authority of this House. And because it has not a seal to it; because the ancient and undoubted authority by which the House have always spoken according to the ancient law and usage of Parliament, has not this appendage of a common law writ, it is scoffed at, and represented as bearing no feature of legality, not only that the unlettered multitude, but that men of education, may be deceived. Good God! Sir, what is this country arrived at! What is the ignorance of the writer, or his persuasion of the ignorance of the people, when he states such an objection in language and in substance, so grossly libellous and offensive, as that this warrant, this instrument by which the House acts in all its functions, judicial, legislative, and inquisitorial, is "illegal in the gross and in all the ingredients!" Sir, it was by this warrant, however described, and whatever its form this warrant without a seal, this warrant, signed by the Speaker of the Commons House of parliament, that our ancestors made the great seal of England in the hands of the Keeper of the King's conscience in the custody of the Chancellor of England, bend to its will.-It was this abused, de |
