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been the practice ; as most effectual to its |--he was confident that no authority, no ends; and at all events, a line of proceed- judge in the land, when he learned that it ing, which would show that the privileges was a question in which the privileges of of the House were asserted : whereas the the House of Commons were implicated, m.ode pursued, of resolving in the first in- would determine upon it. He entertained stance to plead to the action, was a virtual no apprehension, therefore, that either the abandonment of them.
dignity or privilege of the House of ComThe Chancellor of the Erchequer declared, mons was endangered. The law prescribed that the general tenor of the eloquent the course which the House ought to pur, speech of the right hon. gent. opposite was sue, and which they might therefore tread such that he should be sorry by recurring without danger. After alluding to the to any irritating subject, to interrupt the precedent of sir F. Pemberton and sir T. impression which thai speech must neces. Jones, he adverted to the statement made sarily have made on the House. He could by his hon. friend, namely, that a letter not refrain from repeating his regret, that might be written by the Speaker to the in a case in which the right hon. gent. Lord Chancellor, on which the Chancellor himself conceived that the rights and pri- would necessarily issue a writ of supersedas. vileges of the House were at stake, he ab. Although he could not admit that this al. stained from lending his assistance to the ternative of his hon. friend was so absurd, Committee in order that they might ar- as it was asserted to be, yet as such a mea. rive at a right conclusion. The righ:hon. sure would be effective only during the gent: had talked of the unfortunate situa- session, he must allow, that the proceeding tion in which the House stood. What un- would be of too limitted a nature for the fortunate situation ? Only that situation House to adopt. He, and those who acted to which it must be necessarily exposed with hiin, had been thought deficient in on every exercise of its privileges, how their duty for not having recommended ever moderate. The mere temporary im- the commitment of the solicitor. For his prisonment of a member, for the purpose part, he thought it wise in the House not of bringing him to the bar to receive a to avail itself for that purpose of the unreprimand, would form as good a ground precedented and unnecessary notice which for an action as the rash step (as the right had been sent to the Speaker. If tire hon. gent. termed it) which he had advised House had committed the solicitor by the House to adopt with respect to sir F. whom that notice was sent, which they Burdett. Besides, could any one who had an unquestionable right to do, was it had observed the subsequent conduct of not probable that another solicitor would that hon. bart. doubt, that if he had been have been appointed, who would not have brought to the bar to be reprimanded, in- sent a notice, but would have brought an stead of having been sent to the Tower, action? Would the House have committed he would have preferred an action against him for that? How could they distinguish the Speaker for ordering him into custody, whether that action was preferred against or that he would, when at the bar, have so the Speaker in his public or in his private insulted the dignity of the House, as to capacity. If they had asked the solicitor, drive them to the adoption of the severer he would probably have answered that the measure ? With what justice, therefore, interests of his client required secrecy. could it be said that the House had been Would the House have committed him on brought into unheard of and unspeakable that statement ? If they had done so, he calamity and distress? If there were any thought they would have acted rashly. It imbecility in their privileges, he did not was in the anticipation therefore of all regret that that imbecility had been dis. those difficulties, that the commitnient of covered at a time when they would have the solicitor had not been recommended. ample opportunity either to consider the Those who had told him that he was mode of protecting the rights which they wrong in advising the commitment of sir had, or the constitutional means of ac- F. Burdett without foreseeing that he would quiring the power to protect them. He resist the warrant, could surely not censure deprecated, therefore, such an emphasis on him for not having advised the commitment the difficulty of the situation in which the of the solicitor. Besides, in that case the House was placed, confident that the House would have to commit the barrister. House had not exercised a right which If one barrister was committed another they did not possess he was confident might be found; for nothing need be done thaithey had not exceeded their privileges by the parties, but to wait till the end of the
session, when they would be at liberty to | House with a high hand, would have been
doctrines he had heard advanced, but be- / tioned in the courts of law. But he would cause the present state of the business did beg of gentlemen to remember what were not call for it. He would confess, how the privileges of the other House of parever, that he did not entertain the opinion liament; to bear in mind that they were that the privileges of that House ought not contending then for the privileges of anoto be brought into discussion in the courts ther branch of the legislature, which had of law. He would readily admit that the no common feeling or common interest privileges of parliament were a part of with the people, as much as for their own. the law of the land, and had been as such It was an extremely dangerous doctrine to recognised and acted upon in the courts of maintain that whatever was done against law. He would admit that that House had the privileges of either House of Parliapower to commit for a breach of its privi- ment was to be arbitrarily punished withleges, as he had before stated; but he enter- out appeal or legal investigation, because tained somedoubts as to the existence of cer- the privileges of neither House were to be tain legal rights, which had been construed questioned in a court of law. He would to flow from this right of commitment. repeat, that it was a most dangerous docAs to the question betore the House, there trine, and contrary to the principles of was in appearance a desire that something British law; and in proof of this, he would should be said as to the kind of plea which suppose an extreme case. He would sopshould be put in. But he could not collect pose either House to pass a resolution rewhat plea was intended to be set up, nor did stricting a man from the exercise of a he understand the House to have decided | legal right. If that individual were to be upon it. He conceived the objection gene- arbitrarily committed for acting upon a rally meant to be made against proceed right sanctioned by law, would gentlemen ing with the action to be, that the Speaker think such an exercise of privilege was to and Serjeant, because they had severally be defended? Yet, improbable as this case acted as Speaker and officer of that House, was, it was a case that actually had hapin execution of its order, could not be sued pened, and at no very distant period, in in an action consistently with the privi- the parliament of Ireland, now consolileges of that Homse. To him the possi- dated with the parliament of this country. bility of such a plea was very clear. He That parliament voted any man who could not easily see that the Speaker, act- should demand or be concerned in proing implicitly in conformity to the order secuting a suit for the recovery of tythes of that House, could very consistently in agistment, an enemy to his country; make use of such a plea; but he could not was such a resolution to be maintained equally satisfy himself that the Serjeant as a privilege, when it went directly to at Arms could avail himself of the same deprive the subject of his legal rights and plea. As well as he could collect from undoubted property? The case was an such information as gentlemen generally extreme one, and not likely to occur again; had
upon such subjects, the charge against but it had occurred once, and might again the Serjeant was not that, as an officer of in the variations of times and circumthat Horse, he had acted by its authority, stances. If their privileges were not to but ihat he had executed the warrant be discussed in courts of justice, how did committed to him in an unwarrantable it happen that persons committed by the manner. Though the execution of the House were brought up on a writ of Hawarrant simply might not be cognizable beas Corpus to the courts of law, wbere in a court of law, without a violation of the judge ascertained the authority for privilege, yet the manner of executing commitment, before he remanded the that warrant might. The warrant might party? What had been the opinion of lord be legal, and yet the officer legally re- Kenyon, a peer of the realm, when he made sponsible for the mode of executing it; as a long argument in his court on the subthere might be some doubts as to the le-ject? As to what had been said respectgality of executing it in a particular mode.ing the analogous practice of the courts It did not appear to him how it could be of law in commitments for contempts, be put on the record that he had acted as the could see nothing in that. When it was officer of that House, in bar of an action stated that a person imprisoned for a confor what he had done in executing its war- tempt could have no redress, he must say, rant. He felt all that had been urged in that if such were the case, there would be the doctrines advanced that day, that the an end of all jurisdiction. His right bon. privileges of that House could not be ques- friend (Mr. Ponsonby), for whose opinion
he had the highest respect, and whose , learned friend to say, that he wished to
but they conceived that the plea had * See Cobbett's State Trials, vol. 6, not been put in as the form of the law re
quired. He could not agree with his hon. + Ibid, vol. 6; p. 999.
and learned friend (sir S. Romilly) that
the courts of law could ever take into be entertained in a court of law. He was their consideration and judgment the ex. desirous instead of employing the attorney istence of the privileges claimed by the general that it should be left to the Speaker House. They were the only judges of himself to put in the plea, without ihe intheir own privileges, and their decision tervention of any counsel. upon them was binding in a court of law. The question, That the Speaker and SerIn this manner the judges must have con- jeant be allowed to appear and plead to sidered the law in many cases where writs the action was then put and carried. of Habeas Corpus had been moved for the Mr. D. Giddy said he had one other discharge of persons committed for vio- motion to make, to which he thought lating the privileges of that House. In there could be no objection. Every genall those cases, when the cause of commit- tleman must know how safe their priviment was set forth, the prisoner was re- leges would remain in the hands of their manded. Lord chief justice De Grey Speaker, of whose zeal, experience, and gave his opinion most decidedly to that ability, they had already had such coneffect. If it were allowed that the House vincing proof; but, at the same time, in did possess the privileges which were such a case as the present, he presumed called in question, it must also be allowed the motion he had now to make would that they had the right of deciding on not be objected to. He then moved, That their privileges, aud their decision must the Attorney General be instructed to de be final and conclusive. It bad been tend the Speaker and Serjeant against the thrown out in the course of this debate, said action. Ordered. that there was a considerable difference Mr. C. W. Wynn asked, if it was to be between the cases of the Speaker and of held out by the House, that any person the Serjeant at Arms. As the defence was might commence such suits at law against committed to his hands, it would perhaps the privileges of the Commons of Great be expected that he should say something Britain, without suffering any punishment on the subject. He felt not a doubt but for their temerity; and that the House that the judge on reading the Speaker's was not now to act as it had done in all plea would refuse to listen to the action, former instances. He alluded to a case in but he could not feel the same assurance the only assembly which could bear any as to the plea of the Serjeant, because analogy to that House, the House of there might be a doubt whether he had or Peers, where no farther back than 28th had not overstepped his lawful authority November, 1708, in the case of Biggs in the manner of executing the warrant. against Hesse, an action was brought
Mr. W. Smith entertained great doubts against a person acting by the authority on what principle he could sanction the of the House of Lords, and the House oridea that there could be any power above dered the plaintiff and his solicitor to apthe law. If gentlemen said that they pear, and committed them to the custody were bound by the law, by an act of the of the usher of the black rod, till they three estates to that he agreed. But if executed a release of the action. This they contended that we were bound by was a case not so strong as the present, any thing short of that, he must demur to and he wished to know if the practice w23 the proposition. The change from trien- now to be discontinued ? nial to septennial parliaments he con- The Chancellor of the Exchequer was not ceived to be one of the greatest infringe prepared to give an opinion on a question ments on the liberty of the subject. 'If, of the kind, taking it as a general rule. therefore, that House had the power of The point would be open for the discreprotracting its own existence, and then of tion of the House at any time when the determining on its own privileges, the case should again occur. As circunpowers of parliament were more extensive stances stood, such a step did not appear than he had conceived them. Having to him to be at present necessary. said so much, he, however, agreed that Mr. Windham thought it would be proit was fair that that House should enjoy per to call the solicitor in this case to the the privileges they had had for ages past. bar, lest, on any future occasion, if they
Lord Milton wished that the plea given acted up to the old practice, the person in should be that which was calculated to suing out the process might think he was hold the privileges of the House at the treated with unbecoming barshoess. highest possible point, so as to make it ob- Here the matter dropt, there being no vious, that no question as to them could question before the House.