graded, and vilified instrument, which made the Earl of Shaftesbury, in 1670 (when he lent himself to accomplish the tyrannical designs of Charles the Second, by attempting once more to attach to the crown the sole power of filling the vacancies of this House, and trying the returns of its members), give way to its authority. It is this warrant, this unsealed paper, which now daily commands the clerk of the crown to append the great seal of England to the writ for electing a member to this House-an effort so supreme and powerful, that it seems to me most extraordinary, that its efficacy should now be questioned; and questioned in such terms as have been applied to it, in the argument of sir Francis Burdett. That this warrant, which has endured for ages, which has, " without a seal," been in constant use to attain all the ends of this House, in its inquisitorial, as well as in its judicial character; which has been uniformly obeyed with as much regularity as the writs of other Courts, in opening the repositories, and compelling the appearance of parties, should be characterized as bearing no feature of legality; that a use of the warrant, which has been uniform and invariable for ages, should now be stigmatized "as constituting the most unlawful act that the mind of man can conceive"-can only be accounted for, by considering it as resulting from a mind determined to libel the long established process of this branch of the high court of parliament; the forms of which are as much recognized as a part of the law of England, as the writs of those tribunals to which it is compared. Is it possible, that any person, reading this passage, can attach to it any other character, than that of a libel, founded in doctrine which, if it prevails, annihilates at once all the means by which this House has uniformly proceeded-by which, in all its ordinary acts, it has at all times obtained persons, papers, and records-without which, it could not bring a person, by the sergeant, to the bar of this House, to answer any question on a breach of its privileges (for that act is an imprisonment, and that act is done by this warrant; founded on uniform custom and immemorial usage), necessary to preserve its station in the constitution by duly supporting its just and necessary privileges. -That the language and strain of argument in this production, therefore, are libellous, I have not a doubt. And if I were trying the question, I must pronounce a verdict of guilty. But the legal reasoning and authorities on which it is founded, are as fallacious as the production itself is libellous. The whole proceeds upon a supposition, that the law of parliament is not part of the law of the land.- Refute that position, and the whole fabric is overset. That the law of parliament is a branch of the law of England, and has always been so, it is unnecessary to prove: it is text law, to be found in the earliest and the latest works of all who have written on the subject of our laws and constitution ; so much so, that I feel a degradation in being called on to make the assertion. Where then is the argument founded on Magna Charta which is worded in the alternative? which says, no man shall be imprisoned but by the judgment of his peers, or the law of the land; clearly declaring that there are other modes than judgment of his peers, by which a subject of England may be imprisoned. In the Argument, there is a great display of legal authorities-lord Coke is repeatedly quoted, and his doctrine relied on. Without dragging the House (after the kind attention I have received) through all these quotations, and shewing that the doctrine relied upon by sir Francis Burdett, is doctrine referring to the common law, and not to the law of parliament; I do beg the House to attend to this one observation in the Address and Argument of sir Francis Burdett-lord Coke is quoted, I believe, thirteen or fourteen times. Lord Coke wrote four great general works, by the name of Institutes : the first, his commentary upon Littleton, professedly on the law of tenures, branching into topics of municipal law, and rarely into the constitution of parliament: the second Institute, readings on certain statutes: the third Institute, a dissertation on the criminal law. The fourth Institute is upon the great courts of the kingdom; the first chapter upon the High Court of Parliament; so that this last-mentioned work is the only one of those four Institutes, containing doctrine professedly on this very subject, and distinguishing throughout the common law from the law of parliament. This fourth Institute, accordingly, forms the great repository of the parliament, to which we all have recourse, when any question of the nature now under our discussion arises. Now, Sir, it will surprise the House, when I tell them, that the numerous quotations which sir Francis Burdett has made which this work affords, all of them shewing equally its fallacy in argument and authority, and its libellous character in intention and in language: Ishall, therefore, proceed now Sir, to the third and last branch of this most important questionthe punishment. from lord Coke, are all confined to the three first Institutes; and that he has not one quotation or reference to the fourth Institute, the only work which lord Coke has written professedly on the constitution of parliament. No, Šir, this grand repertory of the law of parliament; in which are to be found all those doctrines respecting our privileges, to which I have already referred in what I have stated to the House in the outset, is entirely passed by, and the existence of such a work is never once pointed out or acknowledged. What shall we say of the candour of a disquisition which is thus conducted? But, Sir, this is not the only observation which this course calls forth. By treating this subject, with reference to the doctrine of the common law, which is only one branch of the law of England, the mind is entirely misled, and doctrines referred to, which the law of Parliament not only does not acknowledge, but denies. Sir, there is another course of argument equally fallacious and unjust in the Address of sir Francis Burdett, when the assertion of the privileges of the House of Commons is referred to, as made in the reigns of James the first, and Charles the first, under the sanction of lord Coke, and the other great men of that day.-It is represented that the privileges here contended for, are not enumerated among those there asserted; and it is concluded, therefore, that as this privilege was not then asserted, it did not exist yet it is well known to all who have any information of the history of those times, that no privilege was asserted, but those which had been disputed; and it would be easy to enumerate many of the best ascertained privileges of the House of Commons, which were not asserted at that period. But does it follow from thence that they did not exist? The best and most convincing proof of the weakness of this mode of treating the subject, is to be derived from the admission of privileges le by those who deny the privilege in question: namely, the doctrine of contempt by obstruction. Those who argue most strenuously against libel on the House or its members being a breach of privilege, still admit that the obstructions of our proceedings are breaches of privilege; yet that privilege is no more to be discovered in the enumeration of those which were asserted in 1621, than the more extended privilege for which I have been contending. It would be endless to go through the other objections in detail, Mr. Speaker, I announce my views of this part of the subject with the more satisfaction, because nothing has yet been stated, or is yet known, as to the punishment intended to be proposed by those who have brought this matter forward, so that it is impossible to impute the proposition of any individual, to the influence of fear or apprehension. Upon the most attentive consideration which I have been able to give this matter, I am satisfied, that in this case, and as applied to this person, the most advisable punishment is a reprimand from the chair; and when the proper time comes, I shall think it my duty to move that sir Francis Burdett do attend in his place, and receive such reprimand. In proposing this, I propose a punishment most perfectly appropriate to the offence, perfectly consistent with the dignity of this House and the maintenance of its privileges. Upon the subject of libel upon the House or its members, the power to inflict a discretionary punishment implies the necessity of weighing it with the greatest deliberation; and considering the situation, the character, the rank, the education of the person who is the odject of it -nothing is so ready to mislead in a question of this sort, as to inflict a certain punishment on one person, because that punishment has been adjudged on another for a similar offence. First, the discretion may have been injudiciously exercised in the first instance. Secondly, the impression to be made on the person who is the object of punishment, must be different according to the mind of the offending person, being more or less educated, and his station more or less elevated in society. Sir, the object in point of public example and public information, will be more effectually attained by a reprimand, than by any other course. It is of infinite consequence, that the doctrine réspecting the privileges of this House, should be often inculcated and pressed upon the public mind, that the antidote to the false doctrines which have been forced upon the people, may be replied to in the most effectual manner, and may come from the highest authority. We all know, Sir, with what effect this would be executed world reason to suppose that the motive was founded in personal resentment, or any thing that could be construed into a vindictive feeling; neither of which, he was persuaded, had the smallest influence on the minds of any one gentleman of that House, on the present occasion." This sound and moderate doctrine, falling from such high authority, I do trust, will have its influence with the House on this occa→ sion. And they will see that it is perfectly consistent to vote a paper to be libellous, scandalous, and a breach of privilege; and to follow up that vote with the punishment of reprimand. Sir, I have now closed all that I have to offer on this most important question, with one small exception. I omitted to state in its proper place, the observations at which I hinted at an early period of this speech, respecting some of the precedents and authorities, on which sir Francis Burdett relies. I mean that respecting Holt and Bridgeman, and that relating to the proceedings against sir Richard Steele. In the first of those, the proceeding was before the House of Lords, and may relate therefore to privileges very different from ours; and consequently not applicable to this subject-that House having the character of a court of error and of appeal in causes. The case of Holt and Bridgeman was a proceeding of by you; with what sincerity, zeal, and perspicuity the privilege would be asserted; with what just severity, and in what forcible language, the reprimand would be pronounced. Such a punishment to an educated man, is more severe and efficacious than any other, and, in all its aspects, is peculiarly calculated to do service throughout the kingdom. Besides, Sir, the most recent case upon this subject of a member libelling the House, shews, that the punishment which I propose, is not at all inconsistent with the offence, as expressed in the resolution under consideration. It is proposed by the motion in your hand, that the Address and Argument of sir Francis Burdett should be voted to be " a libellous and scandalous paper, reflecting on the rights and privileges of this House." To this proposition I most cordially agree. But as to the punishment, I refer to that of major Scott, who in 1790 published a libel affecting the privileges of this House, in one of the most important functions which belong to it. He attacked its privileges by libelling its members in the discharge of the great duty of prosecuting by impeachment; embarrassing the cause of justice in the proceeding before the Lords, against Mr. Hastings, for high crimes and misdemeanors. The vote which was passed against major Scott was, "that he had published a letter, which the House declared to be a scanda-that sort. The office of clerk of the crown lous and libellous paper, reflecting on the honour and justice of the House, and the conduct of the managers," in terms almost the same with what is now proposed respecting sir Francis Burdett. When the amount of the punishment was discussed, Mr. Pitt, with infinite good sense, and most laudable moderation, in my opinion, pressed for the punishment of reprimand, and that course was adopted without a division-while the power to imprison was fully recognized by the whole House, as a legitimate course; and the libel being a breach of privilege, was never even called in question. I cannot use words so likely to prevail on the House to follow that precedent, as those which are attributed to Mr. Pitt on that occasion. He said, "He would recommend it to the House to take the matter up with temper and moderation, rather with a view to mark their disapprobation of such publications, and to hold out a lesson to persons to avoid incurring their displeasure in future, than, by any unnecessary harsh proceeding, to give the VOL. XVI. was granted by Charles the second, as a which was in fact requesting the judges to do that for which the statute law of the land had provided a remedy. The whole matter proceeded upon the petition of the party, in a cause, which the Lords, neither in their legislative nor judicial character, had a right to propose or enforce; and the proceeding having dropt in the manner stated, it may serve to show the firmness of the Judges in a contest with the House of Lords; but it never can illustrate the question of privilege. sion in the House of Hanover was in dan- In the case of sir Richard Steele (which I likewise omitted to state), it is contended by sir Francis Burdett, in a note, that sir Robert Walpole declared, that the publication of a libel was no breach of the privileges of the House of Commons; and that it was against law for the House to treat it as such. I must beg the House to attend to the fallacy and want of candour of this statement. It is most important to detect it. Thus, Sir, it appears, that when prece dents and authorities are sifted and examined, they are not applicable to the case in question; and it is by those misrepresentations and generalities, that pri vilege is rendered doubtful, and the people misled. I have formerly observed, that sir Robert Walpole, in the year 1701, took a very decided part in the resolutions of the House respecting its privileges; declar- There is, Sir, at present, a prevailing ing, that to publish libels respecting the plan and system to degrade the House of proceedings of the House, or the members Commons, and to represent this branch of for their services therein, is a violation of the legislature (which is connected with, its rights and privileges. It is important and flows from the people-which has therefore, to show, that what he did in privileges and rights exclusively belong. 1713, was perfectly consistent with his ing to it, of the highest nature; armed opinion in 1701, and was most just and with which, it has repeatedly fought and correct in every point of view; and that conquered in the cause of the people), as the representation given of this transac-inferior to the other branches of the legis tion by sir Francis Burdett, is completely erroneous. The only question now under consideration, is whether a libel on the House, or its members for their services therein, is a breach of privilege. It never It never was contended or dreamt of by me, or any who have ever supported this doctrine, that a libel on the state or government generally, was a breach of privilege. Observe then, that sir Richard Steele was not accused of a libel against the House of Commons, or against any of the members of the House, in discharge of their duty there the charge against him, which was made 13th March 1713, is this" Complaint being made in the House of Commons, of a paper called the Englishman, and a pamphlet entitled the Crisis; and Mr. Steele acknowledging himself the author of these pieces, they are voted scandalous and seditious libels; highly reflecting on her Majesty, the nobility, gentry, clergy, and universities; maliciously insinuating that the protestant succes lature. For this purpose, the miserable shift has been resorted to, of alluding to the appellation of the lower House, as confirming this doctrine, and implying, that its rights and powers are inferior in their nature. They understand but little of the constitution of England, who rest upon such observations, and rely on such doctrine. Sir, the powers of this House vary from the other branches of the legislature, and its functions are different. But its rank is co-equal; and many of its powers exclusively its own: while its efforts have been peculiarly those, by which the constitution has been vindicated and asserted. Those who represent the House of Commons as inferior, and exalt the other powers of the state to its prejudice, are the worst enemies to the liberty of the country. This House has, and I trust will, by a due attention to its dignity, its privileges, and its independence, in defiance of despotic attacks of the crown on the one hand to enslave it, or wicked or [534 against Sir Francis Burdett. 533] PARL. DEBATES, APRIL 5, 1810, Sir Samuel Romilly, in explanation, stated, that he had never said or maintained that the doctrines asserted in the paper under discussion were not a breach of the privileges of that House. Any thing that obstructed their proceedings must come under that description, but the only doubt he had was as to the libel. Mr. Whitbread then rose and said, that he hoped for the attention of the House whilst he made a few observations, and was happy in doing so to take that opportunity of bearing his testimony to the legal and constitutional sentiments delivered by his hon. and learned friend who had just sat down. But great as was his respect for that hon. and learned gent. and unlimited as his reverence and love were for the authority (Mr. Fox) which he had quoted, he must still be allowed to say, that he was not convinced by the arguments of his hon. and learned friend. Had it ever been contended that the House was to abandon its privileges? No. Whatever might be the wish of any member as to the revision and reform of these privileges, no man deemed them of more value than himself; no man thought more highly of them. He considered any breach of the just and legitimate privileges of that House, as a direct assault upon the liberties of the country; and, consequently, he was not to be told, that in order to support the privileges of that House, they were called upon to condemn the letter of sir Francis Burdett. The privileges possessed by the House had been given for the benefit of the public, Without such a power, how could the ordinary business of the House be conducted? How could the chairman of its different committees proceed? He had himself, as chairman of a committee, exercised the authority given by the House in sending for papers, persons, and records. The orders of the House were, in such cases, uniformly obeyed, as they must be obeyed, or there would be an end of the most important of their functions and of the liberty of the country. His hon. and learned friend had expressed some doubts as to the propriety of the commitment of His hon. and learned friend had also adverted to a private and unpublished letter of the late Mr. Fox, as an authority From that letter he for his argument. should beg likewise to state, as the opinion of that great man, of whom no man thought more highly than himself, "that the House of Lords, no more than the House of Commons, had a right to commit persons, and that it was matter of regret that the Lords had been suffered to exercise that right by the House of Commons without reproof." Upon this authority, then, it appeared, that so far from claiming the privilege itself, the House of Commons was considered as deficient in duty for not having expressed any reproof of the Lords for having exercised the power. But the hon. and learned gent. opposite (Mr. Stephen) had asked, whether it was their wish to go back to the times of queen Elizabeth. He felt no disposition of that description, but if they were to refer to the practices of such times, he was much afraid that principles of tyranny were contagious, and that no benefit could possibly result from the retrospect. He must again repeat, that their privileges had been given with a view to the benefit of the people, and should never be exercised but for the purpose of promoting that end. And here he felt bound to state the difficulty arising out of the case of Mr. Gale Jones. They might have proceeded against him in a far different way, though they had thought proper to commit him. The libel of Mr. Reeves, which had been alluded to by an hon. friend of his, had been voted by that House most libellous and slanderous, and though one gentleman proposed he should be taken into custody, and another that his libel should be burnt by the common hangman; yet whilst two of the ablest men that ever existed were present, the case was referred to the Attorney General to prosecute, and the consequence was, that the individual was acquitted. His hon. and learned friend had, he thought, not treated the hon. baronet fairly, when he referred to Mr. Horne, and charged the hon. baronet with disseminating that gent.'s opinions. That |
