vote any offence to be a breach of their privi leges, and then fine the offender to an indecontrol of the purse being vested in the House of Commons; there is always a sufficient number of obnoxious individuals, by fining whom, a small temporary supply may be raised, and in the decline of this mighty empire, such may be the exigencies of the state and the immediate wants of an abandoned minister, that, a degraded House of Lords still disclaiming all right to originate or amend a money bill, may, to serve his purposes, discover that riches are a crime, and then fine the possessors of them as guilty of a breach of the privileges of their House.

But the lord chief justice has admitted, "that in their legislative capacity, the House of Lords may not be a court of record."

ships of his situation, by his firmness, by frequent appeals to the country and to individuals, and by an affidavit not to answer inter-finite amount, it is nonsense to talk of the rogatories, unless put to the torture. His sufferings, which at first had only excited the compassion, by their continuance, roused the indignation of the public.-Petitions in his behalf poured in on all sides from the principal corporations and cities in the kingdom.* At length in Easter term, 1770, after nearly two years imprisonment, but without any application being made on his part, a rule for his discharge was unexpectedly moved for by the attorney-general, and as unexpectedly granted by the Court. The attorney-general stated, as the ground of his application, that Mr. Bingley was an obstinate man, who, on that account, had suffered two years imprisonment, which, he believed, was longer than the Court would have confined him, even if he had answered interrogatories and been found guilty.-In other words, he moved that he might be discharged from the punishment of his contempt, because he obstinately persisted in it. -Lord Mansfield and the Court immediately acquiesced in this curious reasoning, and Bingley was discharged. The fact is, the Court felt, though they had not the courage to avow it, that they had been guilty of an excess of jurisdiction; and they thought it more pru dent to yield to the firmness of Bingley, and the feelings of the country, than to encounter the terrors of a parliamentary inquiry, which they knew was on the point of being instituted, and would have been the inevitable consequence of their continuing him in custody. After this, let no honest man despair. The meanest individual may, by perseverance, prevent a precedent against the liberties of his country being established in his own person, and he is sure eventually to triumph over the oppression of even the most powerful.

The lord chief justice next asserts-"That they" (the House of Lords)" can fine in this summary way is also beyond doubt."-Here unfortunately his lordship does not condescend to give the ground of his assertion. In a constitutional point of view, this doctrine is alarming, and dangerous indeed. I know of no right vested in the Lords of raising money on the subject, without the concurrence of the Commons. If the privileges of the House of Lords, are of too delicate a texture to be examined in the courts of law, and if they may

* London, Bristol, Southwark, &c. &c. "The courtly sir James Burrow, has << thought proper to omit in his reports any "mention of this case of Bingley; but it ought "never to be forgotten by those who reve"rence with filial affection our ancient laws, "the best legacy of our fathers, and who set a "value on the constitutional rights and liber"ties of the people.-The whole of the proceedings may be found in a small pamphlet, published in 1772, intituled The case of "William Bingley, bookseller.'" Clifford. VOL. XXVII.

In the case of Mr. Flower, it has not been even pretended that they acted in any other capacity; and I think I have sufficiently proved, that unless they are a court of record, they have not the power of imposing a fine.t But, this admission of his lordship, that they are not a court of record, furnishes me with an additional argument. By analogy to the practice of the courts of common law, his lordship contended that the House of Lords had a summary power of imprisonment.By analogy to the practice of the courts of equity, I argue, that they have not the power of imposing a fine." In the chancery," says my lord Coke, "are two courts; one ordinary, according to the course of the common law; the other extraordinary, according to the rule of equity. The court of equity, proceeding by English bill, is no court of record, and therefore it can bind but the person only, and neither the estate of the defendant's lands, nor the property of his goods or chattels." §-Lord Coke then cites two cases in support of his doctrine: "Trinity, 3 Jac. Reg. Egerton, lord chancellor, imposed a fine upon sir Thomas Themilthorp, knight, for not performing his decree in chancery, concerning lands of inheritance, and estreated the same into the exchequer; and upon process, the party appearing pleaded, that the fine was imposed by the lord chancellor, for non-performance of his decree, and that he had no power to assess the sume. The attorney-general confessed the plea to be true, and petiit advisamentum curiæ, concerning the power of the chancellor in this case; and, upon debate of the question in court, and good advisement taken, it was adjudged, that the lord chancellor had no power to assess any such fine, for then, by a mean, he might bind the interest of the land where he had no power, but of the person only. And thereupon the said sir Thomas Themilthorp

See hereafter the case of sir Thomas

was discharged of the said fine."-The second is Waller's case. "Afterwards the said lord chancellor decreed against Waller certain lands, and for non-performance of the decree, imposed a fine upon him, and, upon process out of the court of chancery, extended the lands that Waller had in Middlesex, &c. Whereupon Waller brought his assize in the court of Common Pleas, where the opinion of the whole court agreed, in omnibus, with the court of Exchequer." +

by some unaccountable mistake, was, in the hurry of giving judgment, erroneously attributed, by lord Kenyon, to Mr. Sergeant Maynard. But how does it prove the validity of Mr. Flower's commitment? Every argument must be understood with relation to the subject matter to which it refers. Lord Shaftesbury was committed by the House of Lords for a contempt in parliament during the sitting of parliament. It may be perfectly true, that a peer thus circumstanced, cannot be enIf the Lords can impose a fine, then, by a larged by the courts of law; but it by no mean, they may bind the interest of the land; means follows, that a commoner is not entibut, the Lords have no power to bind the in- tled to his discharge from a commitment by terest of the land without an act of parliament. the Lords for an offence done out of parlia "In the 4th of Henry 7th, in parliament, the | ment, and triable at law. And this very disking willed, that I. S. should be attainted, tinction was taken in this case of lord Shaftesand forfeit his lands; to which the Lords as-bury, by the solicitor general Mr. Winningsented, but nothing was said of the Com- ton, by Mr. Sergeant Maynard, by all the mons; and therefore, by all the justices, it is counsel who argued on either side, and finally no act; and I. S. was restored." ‡ by the judges when they gave their judg ment.

The lord chief justice next proceeded to the case of my lord Shaftesbury; and I must confess, that after the extent to which I had argued that case, I was much surprised to find it brought in judgment against me. His lordship said, that in that case, Mr. Sergeant Maynard argued in support of this power in the House of Lords. "Was he a man," his lordship asked, "likely to prostitute his great abilities in support of a doctrine destructive to the liberties of the subject? He says, "it ought to be observed that this attempt is ME IMPRESSIONIS;' and though imprisonment for contempt is frequent by one and the other House, till now no one has sought their enlargement here."

'PRI

I bow with reverence to the high authority of Mr. Sergeant Maynard, in points of constitutional law. Fortunately, it does not bear me down, but supports me in the present instance. Although the arguments urged by a counsel in behalf of his client, ought not to be too scrupulously weighed, and are not of equal authority with the sentiments he has solemnly delivered in his place, as a member of the legislature; yet, if after the case of Mr. Fitton, Mr. Sergeant Maynard had at any time seriously argued in support of this claim of the Lords, I should not hesitate in pronouncing him guilty of a prostitution of his great abilities in support of a doctrine destructive of the liberties of the subject. But the speech cited by the lord chief justice, was never spoken by Mr. Sergeant Maynard. It is the speech of the solicitor general, Mr. Winnington, and

On the judgment given by Mr. Justice Grose, I shall make but few observations. He grounded his opinion entirely on what fell from the lord chief justice De Grey, in the case of Brass Crosby," a case alluded to, but of which very little was cited at the bar."— Brass Crosby's was the case of a commitment by the House of Commons, of one of their own members, for disobeying an order of the House, and committing a messenger of the House for having executed the Speaker's warrant. I therefore cited little of this case, conceiving it not to apply to that of Mr. Flower, but to come under the description of cases which I had expressly excluded.*

But, "when they judge any thing to be a contempt, or a breach of privilege, their adjudication is a conviction, and their commitment in consequence is in execution; and no Court can discharge or bail a person, who is in execution by the judgment of another Court. If a commitment by the House of Lords is a commitment in execution, that is decisive." Granted.-But a commitment in execution, like every other commitment, must have some legal foundation, otherwise it will be void, and the party detained under it will be entitled to his discharge. The question, therefore, in all such cases is, whether the offence for which the party is committed is a breach of privilege, and within the jurisdiction of the House. And this the courts of law may, and when called upon are bound to decide. In the case of Ashby v. White, the House of Commons resolved, That the plaintiff, by bringing his action, had been guilty of a contempt of the jurisdiction of the House, and that all solicitors and barristers employed in the prosecution of the suit, were guilty of a

" 1 Modern."-Clifford. The expression cited will be found in the speech of Winnington, solicitor general, antè, vol. 6, p. 1293, where he is erroneously called Turner.

* Antè, p. 1081.

breach of their privileges. They prohibited | Court. I have endeavoured to discuss the any farther proceeding in the action, and com- question with the manly freedom which bemitted the offenders to Newgate. But acord- comes an Englishman; but without deviating ing to my lord Kenyon, " if either House were from that respect which is due from me to the to send their serjeant at arms to arrest a coun- judgment of the Court, and to the learned sel, who was arguing a case between two in judges who preside in it. I hope the inquiry dividuals, or to grant an injunction to stay the has been dispassionate on my part. Want of proceedings in a common action, undoubtedly temper will disgrace the best cause, and take we (the Court of King's-bench) should pay no from the weight of the most sterling arguattention to it."*-Why? Because the of- ments. I have been anxious to avoid this fence not being a matter of privilege, and fault, mindful of Montesquieu's admirable antherefore not subject to the jurisdiction of the swer to the reproach of having praised the geHouse, the commitment would be void for nius of Bayle, without sufficiently reprobating want of legal foundation, and the party of the pernicious tendency of his docrines.course entitled to his discharge from the exe- "J'ai remarqué que les declamations des cution. Is it then only when the liberty of hommes furieux ne font guerre d'impression the press is to be invaded, that the trial by que sur ceux qui sont furieux eux-mêmes. jury may be superseded with impunity, and La plupart des lecteurs sont des gens mothat the courts of law are incompetent to de- derés: on ne prend guerre un livre que lorscide on the validity of commitments by the qu'on est de sang-froid; les gens raisonables Houses of Parliament?" If we are bigger aimant les raisons. Quand l'auteur auroit dit than any people in the world, by being tried mille injures à Bayle, il n'en seroit résulté, ni by juries, let us never exclude them." t que Bayle eût bien raisonné, ni que Bayle, eût mal raisonné: tout ce qu'on en auroit pu conclure, auroit été que l'auteur savoit dire des injures."* HENRY CLIFford. Lincoln's-inn, Dec. 25, 1799.

These are the principal observations which have occurred to me on the decision of the

Rex v. Wright, 8 Term Rep. 296.

† Speech of sir Thomas Clifford, on fining juries, 1 Grey's Debates, 407.

* Defense de l'Esprit des Loix, 2me partie. }

642. Proceedings on the Trial of WILLIAM BYRNE, of Ballymanus in the County of Wicklow, Esquire, on charges of Rebellion and Murder; tried by order of Major-General Eustace, before a Court Martial, on the 24th, 25th, 26th, 27th, and 28th days of June, and on the 1st day of July: 39 GEORGE III. A. D. 1799.

Members of the Court.-John King, Major, Fermanagh Militia, President; Capt. Leslie Fermanagh Militia; Capt. King, Rathdrum Cavalry; Lieut. Gabbott, Fermanagh Militia; Capt. Carrol, Wicklow Cavalry; Lieut. Winslow, Fermanagh Militia; Lieut. E. Armstrong, Fermanagh Militia. WILLIAM Byrne is charged, that he being enrolled as a yeoman, in the Wicklow Yeoman Cavalry, and as such, having taken the oath of allegiance prescribed for yeomen, afterwards became a rebel, and joined the rebel army then in arms against the king and government of Ireland :-That he was instrumental in calling, and influencing into rebel lion, divers of his majesty's subjects:-That he was a captain or principal leader in said rebel army. The said William Byrne is also charged with being concerned and an acces sary in the murder of Isaac Langrell, in Gorey, in the month of June, 1798; and also with being concerned in the murder of three other

persons, at the rebel camp at Mount Pleasant, whose names are unknown.

June 24, 1799.

Thomas Hugo, esq. sworn.

Witness deposes, that he was lieutenant in the Yeoman Wicklow Cavalry, and the pri soner William Byrne, was admitted and enrolled a member of that corps and as witness beard and believes, took the oath prescribed for yeomen. That prisoner continued upwards of six months in said corps, and was then expelled, in consequence of his refusing to take a test oath, purporting, that the deponent never was, and never would be an United Irishman, and that such oath was taken freely and voluntarily, which oath was taken by the whole corps except the prisoner and four others who were expelled.

Question by Prisoner.-Did I not, during the six months I continued in that corps,

and how did you support yourself?-From the battle of Gorey, until the rebels went to the Boyne. I supported myself by taking provision where I could get them, and sometimes the men gave me share of what they got.

Where do you now live, and how long have you continued in your present residence?-In Rathdrum, and I have continued in Rathdrum half a year.

Are you at liberty, or in confinement in your present residence?-I am in confinement.

In whose custody are you in Rathdrum, and by whose order?-In the custody of Phillips, a constable, by order of Mr. Wainright.

When and for what reason, were you taken into custody?—About nine months ago, I was first taken, because I had been out with the

Where were you when you were taken a prisoner ?—At Coolkenno.

the town, under the command of the prisoner.
That witness was asked to go and see an
Orange-man piked-and she went to Gorey
church-yard for that purpose, where she saw
Isaac Langrell lying on the ground with signs
of life in him, he having been piked before
she arrived; and before he expired, a man
with a hay-knife, set in a stick, struck the
said Langrell across the neck, which nearly
severed the head from the body.-That the
prisoner William Byrne was present, and ap-
peared to have the command of the party
who put Langrell to death; and upon the
stroke of the hay-knife being given, the pri-
soner William Byrne said to his party,
"march off, for the heretic will rise no more."
The prisoner, who had a sword in his hand,
marched away with his party. That the rebel
army marched from Gorey-hill to Limerick-rebels.
hill, from whence one part marched to Mount-
Pleasant, and the other party to Carnew;
witness went to Carnew, prisoner went with
the party to Mount-Pleasant, both parties
afterwards met at Kilcaven, where she saw
the prisoner calling out his men into ranks.-
The rebel army afterwards marched to Carri-
grua, and from thence to Vinegar-hill, where
she again saw the prisoner acting as com-
mander of the Ballymanus corps; that said
corpswas ordered into the town of Enniscorthy,
whereupon some objections were made by the
corps against going there, some saying they
would not march without being led by Garret
Byrne, and others that they would not go
without their captain, William Byrne the pri-
soner. That upon this occasion, another com-
mander of the rebels, charged the prisoner
William Byrne with cowardice, and prisoner
replied he was as stout as him, and would ex-
change a shot with him, the rebel army was
very soon after dispersed by the king's army;
and witness never saw prisoner since until
this day in court.

Cross-examined by Prisoner.

Where were you born, and what is your age? I was born in Carnew, and am under 20 years of age.

In what manner, before joining the rebels, did you earn your livelihood?-I was a ser

In whose service did you live, and how long immediately before you joined the rebels? -I lived with Mr. M'Cormick, in Carnew, but was not in service for half a year before joined the rebels.

How did you support yourself the half year you were not in service?-I lived with my father in Carnew.

At what time did you join the rebels joined the rebels immediately after colonel Walpole's death, and before the battle of Arklow.

What was the reason you joined them? Because we thought we would have had the day.

How long did you remain with the rebels,

How are you at present supported and furnished with clothes?-By order of two magistrates.

Have you ever before been a witness on any and what trials by court-martial?—I have been a witness at Rathdrum on trials of rebels.

Did you not at a court-martial held in Rathdrum, swear against prisoners who were acquitted?-I did, and the prisoners were acquitted; and what I then swore there was truth.

Did you not with your own hands set fire to baggage cars, belonging to his majesty ?— The rebels pulled the furze, and I set fire to them.

Have you ever declared that you were determined to swear away the life of William Byrne, and did you ever declare you could not get your liberty without swearing against him?-I never did say any such word :—why should I swear his life away more than any other man ?

Did you ever speak of the prisoner in the shop of Mr. Manning in Rathdrum, and what did you say of him there I was asked was I to go on Billy Byrne's trial, I answered I was, and that was all I said.

To whom did you mention, in William Manning's shop, what you have now said ?I do not know to whom I mentioned those words; nor do I recollect that any of the family of Manning, except the clerk, were in the shop, at that time: and to my knowledge I never at any time had any conversation respecting prisoner at Manning's but once.

.-Have you ever fought against his majesty's army? and which do you think, rebellion or perjury, the greater crime? Do not you conceive it to be a lighter crime in a girl of 18, to swear falsely, than to choose to go to the murder of an Orange-man ?

[It is the opinion of the Court that the two last questions should not be put, as they seem to refer to the oath of secresy, or