Imágenes de página

to go into the House of Lords, and take noble lord was founded on this, that there their seals as peers; but the other branches might be an abuse committed by the of the constitution would soon remedy this House of Commons, against which there extreme exercise of the power of the was no remedy. While men were men, it crown. He laid it down as a first princi- was true, error could never be eradicated; ple, that the high court of parliament was but carry the noble lord's principle, on the source of power. As all human insti- this subject, a little further than he had tutions were liable to error, they might done, and see to what consequences it act wrong; but it did nol, therefore, tol-would lead. Suppose all the courts in the low, that there could be an appeal to an country should abuse the law.-Suppose inferior court. Do as they pleased, there the court of Common Pleas, from some must at last be a power in the state, secret corruption, should decide, contrary against which there could be no appeal; to law, to the oppression of an individual and as well might the noble lord talk of -he appealed to the court of King's referring to a quarter sessions lo reverse bench, which (he hoped he should be par. the decisions of the court of King's bench, doned for using such a supposition, eren as of referring to the court of King's bench for sake of argument) partaking in the to reverse the decisions of the Commons' feelings of the other court, should come House of Parliament. Should any judge to a similar decision. From thence the entertain an action against their privileges wronged suitor carried bis cause to the or proceedings, he was amenable to them, House of Lords, whose judgment was ultiand liable to be punished on the bill of mate and decisive, and they, influenced rights. The hon. gent. then alluded to by the general corruption, should confirm the precedent established in the instance the iniquitous verdicts of the interior of his excellent ancestor, sir William Wilcourts. Supposing all this, he would ask, hams, against whom the court of King's what remedy the suffering individual couli bench gave judgment; but which judg. have? He ackuowledged that no court

, ment was immediately afterwards reversed that no country could exist where soch by the House, and 8,0001. ordered to be profligacy prevailed; but because an exrepaid to sir William, out of the public treme case of abuse of privileges might money. In the first instance, however, take place, could it thence be argue, that, the money was directed to be paid by the therefore, such privileges ought not to attorney general sir Robert Sawyer, who exist at all? Could this argument be susopposed this; and, through his interest, tained, it would not only put an end to the bill was lost, after a second reading in the privileges of the House of Commons

, the House of Lords. Another action was but to ail powers of judicature, and the brought against sir William Williams, by privileges of every other court. He again lord Peterborough, for Scundulum Magna- warmly commended the arguments of his tum; but this was afterwards compromised. hon. friend who had well contended, that Would they, on these precedents, decide as well might the quarter sessions be ap. that that House should submit to be tried pealed to, to decide against the court of by an inferior court? Neither could they King's bench, as the court of King's bench do so, on the precedent in the case of 10 exceed its legal constitutional limits

, Topham, &c. in which parliament was and controul the llouse of Commons. The prorogued, during the time the Serjeant- House was the sole and ultimate judge of at-arms was in the country, executing his its own privileges and of their extent. warrant. Verdon called witnesses to prove, No court had any jurisdiction to decide on that force was used every time he mounted their existence or extent. They were to his horse;- and it was for the assaults com- be judged by this House alone. No other mitted by the Serjeant, after the power body had the power to decide. Not but from which his warrant was derived had that their privileges might be incidenceased to exist, that the action against tally brought before another court, which him was carried into court.

court, however, could not look to their The Attorney-Generu! applauded the hon. privileges, but to their decisions upoa gentleman who preceded him, for his them. It was by these that the court manly answer to the arguments of the would be bound to decide. noble lord, and for his excellent and con

Mr. Ponsonby conceived the question stitutional exposition of the privileges of then before the House to be, whether the parliament, with every word of which he Report of the Select Committee should be pericetly agreed. The argument of the laid upon the table. He wished that bon


members who had hitherto spoken upon it, already given, preferring the plca in bar, had considered that such was the question, to the plea in abatement, he would conand not strayed from it to speak upon that clucle by moving, “ That the Speaker and which was essentially distinct from it. Şerjeant be permitted to appear and plead He was against the appointment of the to the said actions." The noble lord had Committee, and thought that the laying recommended that they should take no that Report upon the table, would have as steps at all; but if this advice was taken, much effect upon the great question of the consequence would be, that the Court their privileges, as if he threw his hat would proceed with the cause, and judg. upon that table. He would vote that the ment to the full extent of the damages laid Report should be received; and he hoped would go by default.-If the gentlemen that when that motion should be carried, opposite condemned the steps now recomas he supposed it would, that the minister mended, they ought, as members of Parwould muster up resolution enough to state liament, not to wrap themselves up in to the House what would be the next silence, but, for the good of their country, course he intended to pursue.-The mo- state what course appeared in their judge tion that the Report do lie on the table ments to be better. They might say the was then agreed to nem. con.

House was under difficulty, and he was Mr. D. Giddy, in pursuance of the task free to confess they were; but it was a imposed upon him, rose to propose another difficulty not arising out of the case itself, motion to the House. He had hoped, but out of the imperfection of the constituhowever much the gentlemen opposite tion, in not anticipating and providing had differed in opinion respecting the ap- against so extreme a case.—(Hcar, bear, pointment of the Committee, yet that from the Opposition side.)-He repeated, when it was appointed, by a great ma- that it was an imperfection, not to foresec jority of the House, they would have con- and provide against the extreme case of tributed by their assistance and advice to an individual so daring as to resist the audirect the course which the public good thority of the House of Commons. But rendered it most expedient to pursue. it was not, as gentlemen who cheered him Disappointed in that hope, he still thought might contend, at all dependent upon this that when the Committee had made their particular case. Last session these gentleReport, these gentlemen would not have men were not sparing of commitments; looked on as indifferent spectators of the and similar resistance and similar legal difficulties in which they considered the proceedings might have arisen out of these House to be involved, or have deprived as out of this; the same difficulty would the House of their assistance in this mo. have ensued. Therefore, it did not dementous question. The hon. gent. then pend on the committal of sir F. Burdett, repeated the statements he had made in but on the nature of the thing itself. He his preceding speech, relative to the three concluded by moving, “ That it is the modes in which the Housè might act, de opinion of the House, that Mr. Speaker claring, as before, that he should have pre- and the Serjeant be permitted to appear ferred proceeding by inhibition. He and plead to the said Actions.” noticed, in answer to a noble lord (Milton) | A question being put from the Oppothat the consequence of not appearing to sition side of the House, as to what was this action, which was brought against Mr. the subsequent proceeding he had to proAbbot, as an individual, by name, and not pose, Mr. Giddy stated, that, if his prein the character of Speaker of the House sent motion was acceded to, he would then of Commons, would be, that the court, un- offer another, “ That the Attorney-Geneapprized of this circumstance, and of their ral be directed to defend Mr. Speaker and privileges being involved, would permit Serjeant against the said Actions." the action to go on. Were the House to Mr. Ponsonby understood these motions adopt the second course, and commit the to be made in concurrence with his Masolicitor, &c. others, if not the persons jesty's ministers, and in conformity to the committed, would go on with the action opinions they entertained on this subjecta, to an unlimited extent. There was then He wished to know if he was correct in no other course but to go into the court, this supposition, and that the course proin a certain degree, in so far as to state, posed was that which they would recomthat the privileges of the House were con- mend to the House? cerned in the action. Under these con- The Chancellor of the Exchequcr in reply siderations, and for the reasons he had said, he had no hesitation in answering VOL. XVI.


this question with a decided yes; would self merely, that the opinions he had the right hon. gen., had he put the ques. formed had the sanction of the wisest and tion to him, have given a similar answer? the greatest authorities; he should, as he

Mr. Ponsonby said, ihat he would be the went along, refer to some books he hai last min to advise such a contesi as that brought with hin, and to prevent all misright hon. gent. had involved the House cakes resulting from a lapse of memory, or in ; but being one engaged in it, he would inaccuracy of transcription—as also to be among the first to offer such advice as evince thät he made no purpostly garbled lie thouglio to be expedient. It was for extract that bure a different meaning from this reason he though that the right hon. the whole of the context from which it was gent. ought not to shrink from the respon- taken, he should read the passages from sibility of giving his advice in a dificulty the book themselves: the first book to which he liad not shrunk from the respon. wlich he should refer, was, sir Mathew sibility of creating. Upon a question Hale's Treatise upon the Original Instituwhich had so considerably engrossed and tion, Power and Jurisdiction of Parliament. agitated the public mind, he knew not Ilere the right hon. gent. referred to the whether the opinions he was about to offer book, and read from it a passage wbich would be popular or unpopular-whether was in substance as follows : * For as the magnitude and publicity of the subject every Court of Justice hath laws and cuswould bring upon him a weigint of vdium toms for its direction; some to the civil or applause, altogether disproportioned to and canon, some the common law, others his humble and unobtrusive efforts to do their own peculiar laws and customs, so his duty conscientiously; but this he the Iligh Court of Parliament hath also its knew, that this was a question of that un- own peculiar law, called the ler et consueparalleled importance, that if it be decided tuilo Parliamenti, suis propriis regulis et conin a certain way, the liberties of this coun- suetudinibus consistit sua ler, a law not to be try were at an end. He thought that judged of by other Courts, or questioned House bad the right of committing for a therein, and the same is law, because selibel. This was his conscientious opinion cundum legem et consuetudinen Parliamenti, an opinion that might be unpopular, and the rather for that every member of and which he should regret to find so; for, Parliament hath a judicial place, recog; as a member of Parliament, he must ever nized by various judges.” Here he need respect the opinions of the people. Much scarcely remind the House, that lord Hale however, as he esteemed the opinion of took laigely from sir Edward Coke, whose the people, he would treat them as he had opinions upon this great question had been treaied ihe King when he was his servant. adopted implicitly by lord Hale; both He would serve botli, but flatter neither these great authorities had affirmed the In proceeding to state liis opinion, he privilege of Parliament to be not merely, should ground what he had to ofier upon lex Purliancenti

, but lex terræ, not the law of two principles :-ihe first was, that each that House, but the law of the land. There House of Parliament was, in its respective was however, one objection to which be capacity, the sole judge of its own privi. could not more opportunely advert to than leges--the sole juige of what those privi- now, it had been industriously given out that leges aricomthe sole judge of the extent to though these great lawyers were in the which those privileges are to be carried general sound legal authorities,that yetthey and the sole judge of the manner in which had rather too much reverence for pariiasuch privileges are to be exercised. It ment--that they had too high a notion of followed by consequence, that no other the powers and authorities of parliament, Court in this counuy had the right to in- and were, in fact, too much clouded by terpose their cpinion upon what was privi- the abject prejudices of their days, to be lege of Parliament--the naiure, the ex. relied upon implicitly in the present entent, or the cxercise cf it. The other pro- lightened times. He would not here stop position which he would lay down as a to combat prejudice by prejudice, or exprinciple was, that whenever the Court of amine how far an objection so frivolous Parliament, no matter which House of should be allowed to invalidate an autho. Parliament, had declared a matter to be rity so weighty ; but he would take one privilege, that all other courts throughout of those whom he had understood to have the country were bound to pay respect been chiefly relied upon out of that House, and insplicit obedience to that declaration. as laying down opinions hostile to the ex. To shuw that he did not speak from him- tent and exercise of their privileges: be meant sir William Blackstone. This judge court of Common Pleas-a man whom he had been cited in a way so imperfectly as

described as a sound and constitutional to the context, and so ignorantly as to the lawyer. He read a

passage from the consequence, that he was considered by 69th page of this treatise, which was in some of those who had suffered themselvesto substance, that “ Having made it appear be so egregiously deceived, as laying down that the power of the high court of parprinciples incompatible with what were liament, though divided sometimes in the called the privileges of parliament. Here exercise, was the same in effect, however the right hon. gent. referred to Black- exercised, whether in its legislative castone's Commentaries, and read from it a pacity as a branch of the legislature, or in passage to the following effect : “ The its judicial character as the Magna Curia, Inaxims upon which they proceed, toge- or in its capacity of a council, as the ther with the method of proceeding, rest commınia concilia regni.”. Though this entirely in the breast of the parliament doctrine was now thought not be mainitself; and are not defined and ascertained tainable in these enlightened times, yet by any particular stated laws. The pri- this was no new discovery: the saine obvileges of parliament are likewise very jections were started a hundred years ago, large and indefinite. And therefore when but the objection was rested upon the abin 31 Hen. 6, the House of Lords pro- stract principle, independent of the conpounded a question to the judges concern- stitution, and not upon any principle deing them, the chief justice, sir Jolin For- rivable from the constitution. The obtescue, in the name of his brethren, de- jection rested upon à principle that apclared, that they ought not to make plied to all governments. None had, none answer to that question ; for it hath not ever could be constituted so perfect, as not been used aforetime that the justices should to leave discretionary power somewhere. in any wise determine the privileges of This was the principle of the objections of the high court of parliament. For it is lord Holt, in that memorable case of the so high and mighty in its nature, that it Queen against Petit in which he dissented may make law; and that which is law, it from the eleven judges of that day. His may make no law : and the determination argument was, that the House of Comand knowledge of that privilege belongs to mons may declare any thing they please the lords of parliament, and not to the privilege. But this proved nothing more justices.'. Privilege of parliament was than that power might be abused. Was principally established in order to pro- it, therefore, not to exist at all? Yes, say tect its members not only from being mo- the objections, but in a definite form. But lested by their fellow-subjects, but also the law of the land said otherwise the more especially from being oppressed by moment privilege of parliament became the power of the crown. If therefore all definite it was subjugated. The law of the privileges of parliament were once to the land was not io be overturned. If be set down and ascertained, and ño pri- the law of parliament be supposed to be vilege to be allowed but what was so de- limited by a sound discretion, the judges fined and determined, it were easy for the are not to presume otherwise. The judges executive power to devise some new case, are in no case to presume that parliament not within the line of privilege, and under has abused their privileges; their privipretence thereof to harrass any refractory leges exist in their own good pleasure; member and violate the freedom of par- their own discretion is the essence of that liament. The dignity and independence privilege-if the one be removed the of the two Houses are therefore in great other is destroyed. Besides, lord Holt's measure preserved by keeping their pri- objection went as much to human nature vileges indefinite." Judge Blackstone itself as to the privilege of parliament:further said, that no catalogue of their While men are mnen, some part of the most privileges should be stuck up for the in- perfect sublunary government must be left formation of all persons, as to define was to in the discretion of their rulers. But lord subvert the constitution of the House, (Holt, in laying down his opinion upon a After this, he hoped he would never again singular principle, stond alone in that hear Blackstone quoted, as saying that opinion. Was it nothing that the remainthe law of parliament was not the law of ing eleven judges of the land were of an the land. He next referred to a treatise opposite opinion ? And here it was carewritten on the power of parliament, by fully to be remembered, that among sir Robert Atkins, one of the judges of the them there were many as able, sound,

constitutional lawyers as lord Holt him. nam ita ler scripta monet. There was no self. But it had been argued, that no un arguing against it; for it could not be relimited undefined power ought to be butted by an evidence less than itself.known by the constitution. He did not The usage of parliament was, as it were, a argue thus for what ought to be, but what deed in evidence not to be defeated by actually was. The constitution vested dis moral testimony to the contrary. cretion, and there could be no constitu- could not say that the House had no such tion under heaven which must not vest right, because their records said they bad, discretion somewhere. If the King's. so that he was (to make use of a law term) bench passes an erroneous judgment in estopped from denying the factum, to which, law, there lay an appeal by writ of error: as a member of that House, he was a party. to the House of Lords. Their lordships But there had been a good deal of decla. may confirm that wrong judgment instead matory noise about the invasion of the of rescinding it. Here then was an in- liberty of the subject. There had lived bejury without a remedy-but who would fore them men as much attached to the argue from thence against the wisdom of right of personal liberty as any the preresting such discretion in that House? If sent times could boast. When the Habeas the judges of the King's bench were guilty Corpus Act and the Bill of Rights were of wilful corruption, the House of Com passed into laws, did the men whose pubmons would take cognizance of such al- lic virtue consigned this invaluable legacy ledged offence, and would proceed to to Englishmen for ever—did they feel it prosecute such malversation to condign necessary to come forward and claim of punishment. But who shall call the par- that House the redemption of the liberty liament to account? He might be an- of the subject from the teazing tyranny of swered, the people? But in what way their caprice? Did they express their were the people constitutionally to do apprehensions of very undue power asthis? When the members of that House sumed by the House of Commons ? Did went back to their constituents, then the they feel any alarm at our privileges, or people had the remedy in their own hands, think those privileges incompatible with and by re-electing or dismissing their re- the liberties they were created to secure ? presentatives, might exercise all the con. He had already spoken to the right—to troul the constitution of the country gave the necessity, of vesting a discretionary them. It was not the right remedy to take power somewhere in every government. away the privileges of the popular branch | The constitution vested that discretion of the legislature, because in some instance in them; but it was objected-the constithese privileges might be abused. The tution vested it no where else : and where, course would be, if parliament were dis. he would ask in such a government as trusted, to address the King to dissolve this where could that discretion be more them. If the House, from its construction, properly vested than in the Commons, did not meet the public feeling, then re- Representatives of a free people ? dress was to be sought by all legal and the great men who worked out the salsaconstitutional means, to procure the neces- tion of our liberties, in the expulsion of sary reform ; but it was mischievous, as the Stuarts from the throne, and in the well as silly, to attempt the other course. establishment of the constitution-were But it was still contended that the House they hostile, either in principle or educahad no power to commit for libel. Where, tion, to the personal liberty of the subject? he asked, were they to look for the privi- Was the great lord Somers a friend to ar. lege of parliament, if not in the customs bitrary power in any shape ? Was the and practices of parliament? If then he able sir John Maynard an enemy to the was right in that position, the application constitution? Was sir Joseph Jekyl a man was not dificult; for from the earliest pe- indifferent to the rights and privileges of riod that House had been in the habit of Englishmen? Did ihese men, upon the Conimitting for libel, and slanderous ex- memorable question of the Kentish petie pressions. They would find an instance tion–did they for one moment entertain of it so far back as in the 59th page of the a doubt of the legal and constitutional first volume of their Journals, followed by right of that House to commit for libel? numerous others in the subsequent volumes. Did any one of them question the privi. The law of parliament was on this head as leges of that House? Did they not rather clear as undisputed precedents could make give to them the weight of their united it. That House could commit for libel authorities? When I find, said Mr. Pon

« AnteriorContinuar »