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to go into the House of Lords, and take | their seats as peers; but the other branches of the constitution would soon remedy this extreme exercise of the power of the crown. He laid it down as a first principle, that the high court of parliament was the source of power. As all human institutions were liable to error, they might act wrong; but it did not, therefore, follow, that there could be an appeal to an inferior court. Do as they pleased, there must at last be a power in the state, against which there could be no appeal; and as well might the noble lord talk of referring to a quarter sessions to reverse the decisions of the court of King's bench, as of referring to the court of King's bench to reverse the decisions of the Commons' House of Parliament. Should any judge entertain an action against their privileges or proceedings, he was amenable to them, and liable to be punished on the bill of rights. The hon. gent. then alluded to the precedent established in the instance of his excellent ancestor, sir William Williams, against whom the court of King's bench gave judgment; but which judg. ment was immediately afterwards reversed by the House, and 8,000. ordered to be repaid to sir William, out of the public money. In the first instance, however, the money was directed to be paid by the attorney general sir Robert Sawyer, who opposed this; and, through his interest, the bill was lost, after a second reading in the House of Lords. Another action was brought against sir William Williams, by Jord Peterborough, for Scandalum Magnatum; but this was afterwards compromised. Would they, on these precedents, decide that that House should submit to be tried by an inferior court? Neither could they do so, on the precedent in the case of Topham, &c. in which parliament was prorogued, during the time the Serjeantat-arms was in the country, executing his warrant. Verdon called witnesses to prove, that force was used every time he mounted his horse; and it was for the assaults committed by the Serjeant, after the power from which his warrant was derived had ceased to exist, that the action against

him was carried into court.

The Attorney-General applauded the hon. gentleman who preceded him, for his manly answer to the arguments of the noble lord, and for his excellent and constitutional exposition of the privileges of parliament, with every word of which he perfectly agreed. The argument of the

noble lord was founded on this, that there might be an abuse committed by the House of Commons, against which there was no remedy. While men were men, it was true, error could never be eradicated; but carry the noble lord's principle, on this subject, a little further than he had done, and see to what consequences it would lead. Suppose all the courts in the country should abuse the law. Suppose the court of Common Pleas, from some secret corruption, should decide, contrary to law, to the oppression of an individual

he appealed to the court of King's bench, which (he hoped he should be par doned for using such a supposition, even for sake of argument) partaking in the feelings of the other court, should come to a similar decision. From thence the wronged suitor carried his cause to the House of Lords, whose judgment was ultimate and decisive, and they, influenced by the general corruption, should confirm the iniquitous verdicts of the interior courts. Supposing all this, he would ask, what remedy the suffering individual couli have? He acknowledged that no court, that no country could exist where such profligacy prevailed; but because an extreme case of abuse of privileges might take place, could it thence be argued, that, therefore, such privileges ought not to exist at all? Could this argument be sustained, it would not only put an end to the privileges of the House of Commons, but to ail powers of judicature, and the privileges of every other court. He again warmly commended the arguments of his hon. friend who had well contended, that as well might the quarter sessions be ap pealed to, to decide against the court of King's bench, as the court of King's bench to exceed its legal constitutional limits, and controul the Ilouse of Commons. The House was the sole and ultimate judge of its own privileges and of their extent. No court had any jurisdiction to decide on their existence or extent. They were to be judged by this House alone. No other body had the power to decide. Not bat that their privileges might be inciden tally brought before another court, which court, however, could not look to their privileges, but to their decisions upon them. It was by these that the court would be bound to decide.

Mr. Ponsonby conceived the question then before the House to be, whether the Report of the Select Committee should be laid upon the table. He wished that hon

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members who had hitherto spoken upon it had considered that such was the question, and not strayed from it to speak upon that which was essentially distinct from it. He was against the appointment of the Committee, and thought that the laying that Report upon the table, would have as much effect upon the great question of their privileges, as if he threw his hat upon that table. He would vote that the Report should be received; and he hoped that when that motion should be carried, as he supposed it would, that the minister would muster up resolution enough to state to the House what would be the next course he intended to pursue.-The motion that the Report do lie on the table was then agreed to nem. con.

Mr. D. Giddy, in pursuance of the task imposed upon him, rose to propose another motion to the House. He had hoped, however much the gentlemen opposite had differed in opinion respecting the appointment of the Committee, yet that when it was appointed, by a great majority of the House, they would have contributed by their assistance and advice to direct the course which the public good rendered it most expedient to pursue. Disappointed in that hope, he still thought that when the Committee had made their Report, these gentlemen would not have looked on as indifferent spectators of the difficulties in which they considered the House to be involved, or have deprived the House of their assistance in this momentous question. The hon. gent. then repeated the statements he had made in his preceding speech, relative to the three modes in which the House might act, declaring, as before, that he should have preferred proceeding by inhibition. He noticed, in answer to a noble lord (Milton) that the consequence of not appearing to this action, which was brought against Mr. Abbot, as an individual, by name, and not in the character of Speaker of the House of Commons, would be, that the court, unapprized of this circumstance, and of their privileges being involved, would permit the action to go on. Were the House to adopt the second course, and commit the solicitor, &c. others, if not the persons committed, would go on with the action to an unlimited extent. There was then no other course but to go into the court, in a certain degree, in so far as to state, that the privileges of the House were concerned in the action. Under these considerations, and for the reasons he had

VOL. XVI.

already given, preferring the plea in bar, to the plea in abatement, he would con clude by moving, "That the Speaker and Serjeant be permitted to appear and plead to the said actions." The noble lord had recommended that they should take no steps at all; but if this advice was taken, the consequence would be, that the Court would proceed with the cause, and judg ment to the full extent of the damages laid would go by default.-If the gentlemen opposite condemned the steps now recommended, they ought, as members of Parliament, not to wrap themselves up in silence, but, for the good of their country, state what course appeared in their judgments to be better. They might say the House was under difficulty, and he was free to confess they were; but it was a difficulty not arising out of the case itself, but out of the imperfection of the constitution, in not anticipating and providing against so extreme a case. (Hear, hear, from the Opposition side.)-He repeated, that it was an imperfection, not to foresee and provide against the extreme case of an individual so daring as to resist the authority of the House of Commons. But it was not, as gentlemen who cheered him might contend, at all dependent upon this particular case. Last session these gentlemen were not sparing of commitments; and similar resistance and similar legal proceedings might have arisen out of these. as out of this; the same difficulty would have ensued. Therefore, it did not depend on the committal of sir F. Burdett, but on the nature of the thing itself. He concluded by moving, "That it is the opinion of the House, that Mr. Speaker and the Serjeant be permitted to appear and plead to the said Actions."

A question being put from the Opposition side of the House, as to what was the subsequent proceeding he had to propose, Mr. Giddy stated, that, if his present motion was acceded to, he would then offer another, "That the Attorney-General be directed to defend Mr. Speaker and Serjeant against the said Actions."

Mr. Ponsonby understood these motions to be made in concurrence with his Majesty's ministers, and in conformity to the opinions they entertained on this subject. He wished to know if he was correct in this supposition, and that the course proposed was that which they would recommend to the House?

The Chancellor of the Exchequer in reply said, he had no hesitation in answering R

this question with a decided yes; would self merely, that the opinions he had the right hon. gent., 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, that he would be the went along, refer to some books he had last mon to advise such a contest as that brought with him, and to prevent all misright hon. gent. had involved the House takes 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 that he made no purposely garbled he thought to be expedient. It was for extract that bore a different meaning from this reason he thought 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 difficulty the book themselves: the first book to which he had not shrunk from the respon which he should refer, was, sir Matthew 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 Here the right hon. gent. referred to the whether the opinions he was about to offer book, and read from it a passage which 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 weigirt of odium 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 High Court of Parliament hath also its knew, that this was a question of that un- own peculiar law, called the lex et consue paralleled importance, that if it be decided tulo Parliamenti, suis propriis regulis et conin a certain way, the liberties of this coun- suetudinibus consistit sua lex, a law not to be try were at an end. He thought that judged of by other Courts, or questioned House had the right of committing for a therein, and the same is law, because selibel. This was his conscientious opinion cundum legem et consuetudinem 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 largely from sir Edward Coke, whose the people, he would treat them as he had opinions upon this great question had been treated the King when he was his servant. adopted implicitly by lord Hale; both He would serve both, but flatter neither. these great authorities had affirmed the In proceeding to state his opinion, he privilege of Parliament to be not merely should ground what he had to offer upon lex Parliamenti, but lex terræ, not the law of two principles-the 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 he capacity, the sole judge of its own privi- could not more opportunely advert to than leges-the sole judge of what those privi- now, it had been industriously given out that leges are the sole judge of the extent to though these great lawyers were in the which these privileges are to be carried general sound legal authorities,that yet they and the sole judge of the manner in which had rather too much reverence for parlia such 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 county had the right to in- and were, in fact, too much clouded by terpose their opinion upon what was privi- the abject prejudices of their days, to be lege of Parliament-the nature, the ex- relied upon implicitly in the present entent, or the exercise of it. The other pro-lightened times. He would not here stop position which he would lay down as a principle was, that whenever the Court of Parliament, no matter which House of Parliament, had declared a matter to be privilege, that all other courts throughout the country were bound to pay respect and implicit obedience to that declaration. To shew that he did not speak from him

to combat prejudice by prejudice, or examine how far an objection so frivolous should be allowed to invalidate an authority so weighty; but he would take one of those whom he had understood to have been chiefly relied upon out of that House, as laying down opinions hostile to the extent and exercise of their privileges: he

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[982 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 themselves to 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, maxims upon which they proceed, toge- or in its capacity of a council, as the ther with the method of proceeding, rest communia 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 same obvileges of parliament are likewise very jections were started a hundred years ago, Farge 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 John For-rivable from the constitution. The obtescue, in the name of his brethren, de-jection rested upon a 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 to be overturned. be set down and ascertained, and no 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 executive power to devise some new case, not within the line of privilege, and under pretence thereof to harrass any refractory member and violate the freedom of parliament. The dignity and independence of the two Houses are therefore in great measure preserved by keeping their privileges indefinite." Judge Blackstone further said, that no catalogue of their privileges should be stuck up for the in-perfect sublunary government must be left formation of all persons, as to define was to subvert the constitution of the House. After this, he hoped he would never again hear Blackstone quoted, as saying that the law of parliament was not the law of the land. He next referred to a treatise written on the power of parliament, by sir Robert Atkins, one of the judges of the

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are not to presume otherwise. The judges are in no case to presume that parliament has abused their privileges; their privileges exist in their own good pleasure; their own discretion is the essence of that privilege-if the one be removed the other is destroyed. Besides, lord Holt's objection went as much to human nature itself as to the privilege of parliament:While men are men, some part of the most

in the discretion of their rulers. But lord Holt, in laying down his opinion upon a singular principle, stood alone in that opinion. Was it nothing that the remaining eleven judges of the land were of an opposite opinion? And here it was carefully to be remembered, that among them there were many as able, sound,

constitutional lawyers as lord Holt himself. But it had been argued, that no unlimited undefined power ought to be known by the constitution. He did not argue thus for what ought to be, but what actually was. The constitution vested discretion, and there could be no constitution under heaven which must not vest discretion somewhere. If the King's bench passes an erroneous judgment in law, there lay an appeal by writ of error to the House of Lords. Their lordships may confirm that wrong judgment instead of rescinding it. Here then was an injury without a remedy-but who would argue from thence against the wisdom of vesting such discretion in that House? If the judges of the King's bench were guilty of wilful corruption, the House of Commons would take cognizance of such alledged offence, and would proceed to prosecute such malversation to condign punishment. But who shall call the parliament to account? He might be answered, the people? But in what way were the people constitutionally to do this? When the members of that House went back to their constituents, then the people had the remedy in their own hands, and by re-electing or dismissing their representatives, might exercise all the controul the constitution of the country gave them. It was not the right remedy to take away the privileges of the popular branch of the legislature, because in some instance these privileges might be abused. The course would be, if parliament were distrusted, to address the King to dissolve them. If the House, from its construction, did not meet the public feeling, then redress was to be sought by all legal and constitutional means, to procure the necessary reform; but it was mischievous, as well as silly, to attempt the other course. But it was still contended that the House had no power to commit for libel. Where, he asked, were they to look for the privilege of parliament, if not in the customs and practices of parliament? If then he was right in that position, the application was not difficult; for from the earliest period that House had been in the habit of Committing for libel, and slanderous ex-memorable question of the Kentish peti pressions. They would find an instance of it so far back as in the 59th page of the first volume of their Journals, followed by numerous others in the subsequent volumes. The law of parliament was on this head as clear as undisputed precedents could make it. That House could commit for libel

nam ita ler scripta monet. There was no arguing against it; for it could not be rebutted by an evidence less than itself.— The usage of parliament was, as it were, a deed in evidence not to be defeated by moral testimony to the contrary. He could not say that the House had no such right, because their records said they had, so that he was (to make use of a law term) estopped from denying the factum, to which, as a member of that House, he was a party. But there had been a good deal of decla matory noise about the invasion of the liberty of the subject. There had lived before them men as much attached to the right of personal liberty as any the present times could boast. When the Habeas Corpus Act and the Bill of Rights were passed into laws, did the men whose public virtue consigned this invaluable legacy to Englishmen for ever-did they feel it necessary to come forward and claim of that House the redemption of the liberty of the subject from the teazing tyranny of their caprice? Did they express their apprehensions of very undue power assumed by the House of Commons? Did they feel any alarm at our privileges, or think those privileges incompatible with the liberties they were created to secure? He had already spoken to the right-to the necessity, of vesting a discretionary power somewhere in every government. The constitution vested that discretion in them; but it was objected the constitution vested it no where else: and where, he would ask in such a government as this-where could that discretion be more properly vested than in the Commons, Representatives of a free people? Were the great men who worked out the salvation of our liberties, in the expulsion of the Stuarts from the throne, and in the establishment of the constitution-were they hostile, either in principle or education, to the personal liberty of the subject? Was the great lord Somers a friend to arbitrary power in any shape? Was the able sir John Maynard an enemy to the constitution? Was sir Joseph Jekyl a man indifferent to the rights and privileges of Englishmen? Did these men, upon the

tion-did they for one moment entertain a doubt of the legal and constitutional right of that House to commit for libel? Did any one of them question the privi leges of that House? Did they not rather give to them the weight of their united authorities? When I find, said Mr. Pon

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