Imágenes de página
PDF
ePub

fessional conduct was attacked, but that his private honour was impeached, with what feelings of indignation would he himself view any proceeding which went to deprive him of the opportunity of defence; which went to allow his enemies or their advocates to indulge in the most acrimo nious aspersions on his character, at the same time that it denied to him the means of proving that the conduct of his accuser was the most malignant and reprehensible? The inconsistence of the gallant general's reasoning was most observable. Captain Foskett, he said, was an officer whose general conduct was not good, but who so managed as to keep within the circle which kept him safe from a court martial, and yet almost in the same breath he arraigned that very officer for his conduct on the duel; conduct for which the gallant general would have brought him to a court martial. Thus, according to such reasoning, capt. Foskett, though a bad officer, contrived to keep so within the line that he could not be brought to court martial, although he was guilty of this alleged atrocious conduct, for which, if in his regiment, the gallant general would have brought him to trial. To the principle, that the House should not lightly or rashly enter into investigation of military concerns of this kind, he most readily subscribed, at the same time that be thought it their duty to redress grievances, where redress had been repeatedly refused in those quarters constituted to afford it. The hon. judge advocate had remarked that capt. Foskett had evinced no overstrained delicacy; without considering the propriety of that delicacy which might be termed overstrained, he would say, that that officer had shewn no want of delicacy, and from the length of time which he remained silent under his heart-breaking wrongs, he proved himself a man of considerable temper. When he heard the gallant general so philosophically talk of the moderation and tenderness with which capt. Foskett was treated, he was reminded of one of the most atrocious murders which disgraced the annals of human nature-it was that committed by Charles 12 on the gallant and patriotic col. Patcul. When that gallant man was leading to the stake to be broke alive on the wheel, he was told that his majesty had remitted a part of his torments: his exclamation in reply was-"Oh! what clemency!" So could capt. Foskett exclaim, when his cha

racter was assaulted, his honour aspersed, and his reputation almost broken on the wheel, and even heard his oppressors or their advocates talk of the kindness and the tenderness with which he has been treated.

The Chancellor of the Exchequer defended the conduct of the duke of Cumberland, and contended that capt. Foskett had suffered no injury, and that neither the duke of Cumberland nor the commander in chief had violated the 12th article or any article of war in his case.

Mr. Lockhart thought that the matter of the petition related almost entirely to the commander in chief, and not to the duke of Cumberland, against whom the complaint was made, and whose name had been so frequently introduced in the debate. He could not avoid stating, that it appeared to him rather extraordinary, that this petition should have found its way into the different public papers, almost as soon as it was presented to the House.

General Loft opposed the motion, upon the ground that capt. Foskett had not taken the steps which he ought to have adopted for the attainment of redress.

Mr. Lyttleton said, that he was determined to defend the character of the gentleman, who had placed in his hands the subject of his complaint, and who depended upon his exertions for redress. It had been said, that many allegations introduced in the petition, were unnecessary and improper. He was not responsible for the allegations contained in the petition, but he wished that the House would allow him to go into evidence upon the subject. He denied the probability of the statements made by the gallant general respecting the duel in which capt. Foskett was concerned; and conceived that the gallant general ought to bring forward his authorities upon a subject of so important a nature, both to the character of capt. Foskett, and to the party of whom he had complained, He concluded with observing, that if the papers were not produced, there existed no chance of a fair elucidation of the subject. If those papers were studionsly suppressed, the consequence would be most prejudicial to the cause of the duke of Cumberland, instead of producing any possible service.

The House then divided, when there appeared, for the motion 8. Against it 84. Majority 76.

HOUSE OF LORDS.

Friday, May 11.

[POOR CLERGY.] Lord Holland, on the subject of which he had given notice, entered into a detail of considerable length, for the purpose of shewing that the first fruits and tenths, which were now paid on the value of benefices, as ascertained in the reign of Henry the VIIIth, ought to be re-valued, so as to bear a proportion to the present value of benefices, and rendered available for the purposes of Queen Anne's Bounty to improve the situation of the poorer clergy. His lordship referred to several acts of parliament, beginning with the 26th of Henry VIIIth, which first vested the first fruits and tenths in the crown, and proceeding to the act of the 28 and 3d of Anne, which appropriated the first fruits and tenths to the fund known by the name of Queen Anne's Bounty, contended that it appeared from ail these sources, and also from a subsequent act of George Ist, that the power still remained in the crown of issuing a commission for the purpose of ascertaining the actual value of benefices, with a view to the first fruits and tenths derivable from them. To resort to this mode would, he contended, be greatly preferable to adding to the burthens of the people by appropriating 100,000l. to Queen Anne's Bounty. There would not at the same time be any injustice in such a measure towards the church, as what was thus taken would still be appropriated to the support of the church. The estimated annual value of the property of the church was about 3,000,000l. The sum required to increase all livings under that sum to 100l.or 105!. per annum, was about 100,000l. and to increase them to 150l. per annum, would require about 240,000l. It was evident therefore, that the first fruits and tenths taken upon the actual value of bnefices might be rendered available for all the purposes of Queen Anne's Bounty. It was, however, no part of his plan that this fresh valuation should attach upon the present incumbents, but upon their successors. His lordship concluded by moving eight resolutions, the first six stating the acts of parliament which related to this subject; the seventh declaring, that by law the power still remained in the crown; and the last, moving an address to his Majesty to carry the law into execution, by issuing

a commission to ascertain the whole and entire value of all benefices. He also moved for a return of the churches consolidated under the acts of the 37th Henry VIIIth, and 17th Charles IId, and for an abstract of the returns made by the bishops respecting the value of benefices in their dioceses.

The Archbishop of Canterbury denied that the law remained as stated by the noble lord, and quoted a clause in the act of the 2d and 3d of queen Anne, referred to by the noble lord, in which it was enacted, that the payments of first fruits and tenths should thereafter be the same as had heretofore been paid.

The Lord Chancellor was not quite clear as to the meaning of this clause, thinking it might refer to commissions issued by the crown for ascertaining the value of bencfices; but supposing that to be law which was stated by the noble lord, be thought it ought to be repealed, as a most vexatious system, and it being at the same time impossible to make such a valuation, which must be annual, in order to ascer tain the tenths. Not conceiving it necessary, therefore, to declare the facts contained in some of the noble lord's motions, as he could not agree to the plan proposed, he therefore moved the previous question.

Lord Grenville was clearly of opinion that the clause quoted by the most reverend prelate was decisive on the point, as he thought it must have been in contemplation at the time the act passed, as what was likely to be the amount of the fund called queen Anne's bounty, and that therefore the clause was introduced to settle the amount of the payments of first fruits and tenths. He differed in opinion with his noble friend, as to the expediency of the plan which his noble friend had proposed, and objected particularly to the tax of first fruits, which he thought bore particularly hard upon those preferred to benefices, who were necessarily put to great expence in the first year of their preferment.

The Earl of Harrowby and Lord Redesdale agreed in opinion with lord Grenville.

Lord Holland was not aware of the clause quoted by the most reverend prelate, and which he thought, as far as he was enabled to judge from nierely reading it at the moment, decided the point. He therefore withdrew his eight motions. Of the other two motions, the first was, after a short conversation, also withdrawn, and the other was negatived.

HOUSE OF COMMONS.

Friday, May 11.
[SIR F. BURDETT'S NOTICE TO THE EARL
OF MOIRA.] The Speaker acquainted the
House, that he had received a Letter from

the earl of Moira, Constable of the Tower,
the contents of which related to his having
had notice of a suit instituted against him
by sir F. Burdett. And the said Letter
was thereupon, by the direction of the
House, read by the Speaker and is as
followeth :

"St. James's Place, May 10th, 1810. "Sir; Mr. Garrow, my counsel, having "represented it as incumbent on me to "impart the circumstance, I do myself "the honour of informing you that I have "had notice of a suit instituted against me 65 as Constable of the Tower by sir F. Bur"dett, on the ground of illegal detention. "I beg leave to explain, that, by this "communication, I do not mean to solicit your intervention: for I have directed my solicitor to defend the action, resting myself upon the Speaker's Warrant and "instructions from the Secretary of State. "I have the honour, Sir, to be with great "respect, &c. MOIRA."

"

[ocr errors]

"The right hon. the Speaker of the

"House of Commons" [PROCEEDINGS RESPECTING SIR F. BURDETT'S NOTICES.] Mr. Davies Giddy reported from the Select Committee appointed to consider of the proceedings had and to be had with reference to the several papers signed " Francis Burdett," the contents of which related to his being apprehended and committed to the Tower of London, and which papers were communicated to the House by Mr. Speaker upon the 13th and 17th days of April last; and to report such facts as they may think necessary, together with their opinion thereupon, from time to time, to the House; and to whom the matters stated by the Serjeant at Arms attending the House, and the process served upon him in an action at law by sir F. Burdett; and also the summons served on Mr. Speaker and the notice of declaration delivered to the Serjeant at Arms at the suit of the said sir F. Burdett, were referred; That the Committee had considered the matters referred to them, and had directed him to report the same, as they appeared to them, to the House.

The Report [a copy of which will be found in the Appendix to vol. 17, p. lxxxi.] having been read,

Mr. D. Giddy said, that before he moved that this Report be laid upon the table, and also that it be printed, he thought it right to state his intention of moving, for certain reasons, to have it taken into consideration instanter. There were, ac

cording to his judgment, three modes of proceeding in cases of this nature, from among which it would be for the House to select the one most congenial with its view of expediency. The first was, to issue some process which might serve as an inhibition to prevent the courts of law from proceeding at all in actions under consideration. But he did not understand that there was any precedent for such a course. As to the second mode, namely, that of committing all the persons concerned in bringing or promoting such actions, he conceived that there was a variety of precedents in support of the power of the House so to commit if it thought proper. The considerations of expediency, how. ever, alluded to in the Report, and the attorney alone being at present engaged, were against the adoption of this mode. There was, then, only one mode remaining, and that was to plead to the actions, and let the parties sued shew to the court, that the acts.complained of were done in consequence of the privileges of that House. If the House should think proper to allow the Speaker and Serjeant to plead, it would then have to consider what sort of plea should be put in; whether a plea in abatement, or a plea in bar. If the former, which would involve a denial of the jurisdiction of the court, that plea must be put in the next day, of course, no time was to be lost. It was necessary, indeed, that proper measures should be promptly taken, and this necessity called for the immediate consideration of the Report. The hon. gent. concluded with moving, That the report do lie on the table.

Lord Milton felt it impossible to sit silent after hearing the report which had been just read. What! that the Speaker should be advised to appear in a court of law to defend an act done as the organ of that House of the representatives of the people of England! If this advice were acceded to, and that the court should go on, that it should enter into the action, in what a state would that House be placed? It would be defending itself in a court from which an appeal would lie to the House of Lords, and thus it might happen that the privileges of that House would be decided upon in the other House of Par

to guard those privileges entire and unbroken which were so essential to the liberties of the people, and to the protection of the House itself against the prerogative of the crown. Let gentlemen consider that if the slightest invasion of the privileges were admitted there was no knowing where it would stop. The barriers ence broken down, it was difficult to say, bow far the invaders would proceed. But while he was thus tenacious of the privi, leges of the House, let it not be supposed, that he would be any advocate for their abuses in the opposition of individuals. He was not however prepared to say, that the charge of abuse or injustice applied to the case which gave rise to this discussion. The noble lord concluded with an appeal to the House not to endanger the best bulwark of the constitution and of liberty, by acceding to the recom mendation of the honourable mover, by submitting the privileges of that House to be tried in an inferior court. He fervently prayed that providence might avert from the House the consequences of such a decision.

liament. He conjured the House to pause before it became liable to a consequence so much to be deprecated. Would the House be contented to place itself in such a situation? Would it be willing to go back a century in its consequence Would it, after the decisive victory it had obtained in the Aylesbury case, consent to surrender its dignity and power by surrendering the means of their security, by committing their defence to a court of law? Was it to be endured, that the privileges of that House should be tried, perhaps overturned, by the decision of the court of King's bench? While he opposed such a proceeding, he protested against the other alternative of committing the parties concerned in bringing the actions which gave rise to this discussion. Indeed, there was no other party to which such an order could apply, but the attorney. But it would be improper, in his judgment, to adopt either alternative. The House should not at all submit to have its privileges brought into discussion in an inferior court. If one privilege was to be so discussed, then another and another would be questioned, until all the power of the House would be put to hazard if not overturned. In fact, he did not see the necessity of taking any step whatever in this case. If it were said that by taking no step the parties sued would be left undefended, he would answer no. That House had always the power to defend its privileges, and its officers against any violation from any quarter whatever, and if it took no step whatever in this instance, it would be in no worse situation than it was at pre-precedent, then they might do whatever sent. By these observations he wished to guard the House against the monstrous lengths to which it might be carried, if it submitted on this occasion to give up the privileges which could alone render them an eficient body. Here the noble lord took occasion to advert to the phrase of illegal privileges," which he observed had been just repeated by his noble friend near him (lord Folkestone). Was not his noble friend aware, he would ask, that the law of parliament was a part of the law of the land; that it was as much a part of that law as any of the common law; aye, or of the statute law either; he felt most strongly that any abatement of the privileges of that House, which formed such a material part of the law of parliament, could not take place without a general deterioration of the constitution. The noble lord then exhorted the House

Lord Folkestone had not intended to trouble the House at this time, but from the allusion to an expression from him overheard by the noble lord who spoke last. He did contend that there might arise a state of things in which their privileges might be disputed in a court of justice. If they went the length to which the arguments used on this occasion seemed to go, and if they would justify every exercise of power for which they could find a

they pleased, and the person suffering
under their act could have no remedy.
To exemplify to what length this might
be carried, he would suppose an extreme
case, for it was by supposing extreme cases
alone, that principles could be tried.
Suppose, founding themselves on prece-
dent, they should commit a person for a
limited time, was it to be contended, that
the subject could have no remedy against
this arbitrary measure? Suppose they
were to fine or to pillory a person, should
the person aggrieved have no remedy?
Suppose they had chosen to punish Mr.
Gale Jones, as they had once punished a
person, by putting him on horseback,
with his face to the tail, thus conducting
him to Charing-cross, and after having
put him in the pillory there, committed
him to Newgate for life; could not that
exercise of power be legally disputed? If

[ocr errors][ocr errors]

they chose again to exercise this right, it was monstrous to contend that they could thus treat any man, without being amen able to a court of justice. And yet it would be the case, were they to plead against the jurisdiction of the courts in preference to putting in a plea in bar. With regard to the Report, be lamented that ever a Committee had been appointed to give their opinion on this subject. He wished it had been left to the course of law, without the interference of the House at all. He did not, however, quarrel with the Report; though it appeared to him to be deficient in that species of information which the House most required from the Committee. It produced a case in the 3rd year of Charles the 1st, which went directly against the opinion it recommended; for in this case the House had altered its course, owing to proceedings in a court of law. The bill of rights had been often referred to during these discussions, and particularly that passage which declared that the proceedings of parliament were not to be questioned out of parliament. But the case before them had nothing to do with what was done in, but what was done out of parliament. He maintained that it had not; for what had the breaking open of sir F. Burdett's doors to do with what was done in parliament? The Report, in stating the case of sir John Elliot, &c. had omitted a very material part of that case, namely, that the House of Commons, not content with their own declaration, and the declaration of the House of Lords, against the decision of the court of King's bench, had brought a writ of error into the House of Lords, to have the sentence pronounced, reversed. This proved that the House of Lords had been called on by the House of Commons itself, to decide on its privileges. The Report also stated the case of sir Frances Pemberton; and he was surprised that, after the consideration of that case, any man could wish the Speaker to plead against the jurisdiction of a court of law. It was held in that case that if the Speaker pleaded the court was to consider, not the privileges of the House of Commons, but, whether the person against whom the action was brought had acted according to these privileges? He held that the privileges of the House were known to lawyers; and though the opinion of lord Coke was often quoted, to shew that they were known to but few parliament men; yet lord Coke in an after-passage, explained the reason

of this to be, that few persons would take the trouble to learn their nature and extent, but any one might do so who would take that trouble. He approved of the suggestion, that the Speaker should plead to the court in bar of the action now brought against him.

Mr. Whitbread observed, that the plain question before them now was, whether the Report should lie upon the table? and he would have interrupted his noble friend, to remind him of this, but from a desire not to break in upon his speech. He was averse to this premature discussion, and thought the right hon. the Chancellor of the Exchequer, and his friends, who had brought them into their difficulty, ought to state their opinions, and not now be allowed to gather from the feelings and borrow from the intellects on the other side, the mode in which they might procure a vote to bear them through. He wished to confine the present discussion to the point of order, and on the ulterior course of proceeding, before they gave their opinions on his side of the House, he thought it necessary that they should wait to hear what the chairman of the Committee had to propose.

[ocr errors]

Mr. C. W. Wynn agreed with the last Speaker, that a premature discussion of any of the points connected with this subject was to be deprecated, but it was impossible to sit still or suffer any other sub. ject to intervene, after hearing the very extraordinary doctrines advanced by the noble lord behind him (lord Folkestone.) In opposition to that doctrine, he held, that all the privileges of the House must be discussed in the House, and no where else; and that when they first departed from that, their ruin began. The noble lord supposed extreme cases-but he saw nothing contrary to reason in the House. having the power to fine now, as they had in the year 1669 fined White 1,000l. The only thing to be considered was the time when it was proper to exercise these rights. He denied that the court of King's bench could interfere to remedy any abuses that might be committed by the House. was the opinion of Mr. Fox, that it was the most absurd thing possible to argue from extreme cases, in discussions on a subject like the present, since, by the nicety with which the component parts of the constitution were balanced, and their action upon each other, all extreme cases were prevented. For instance, the King might order the first regiment of Guards

It

« AnteriorContinuar »