Evidence ended; Mr. Thompson, after the evidence given by every particular person, face to face, was asked to every one, if he had any questions to ask before they called another? Who answered, he should not say any thing at present. When the witnesses before-mentioned were all examined, Mr. Thompson being desired to make his defence, and declare whether | he were guilty of the matters laid to his charge, did for the greatest part confess words spoken to that effect; and in other things endeavoured to turn the words with more favour towards himself; but the witnesses being of great credit, and many more being ready to have made good the same things, the Committee looked upon the business to be of a high nature; and therefore ordered the matter to be reported specially, leaving it to the wisdom of the House.

A debate arising in the House thereupon; Resolved, nem. con., That Richard Thompson, clerk, hath publicly defamed his sacred majesty; preached Sedition; vilified the Reformation; promoted Popery, by asserting popish principles, decrying the Popish Plot, and turning the same upon the protestants; and endeavoured to subvert the liberty and property of the subject, and the rights and privileges of parliament: And that he is a scandal and reproach to his function.

Resolved, &c. That the said Richard Thompson be impeached, upon the said Report

and Resolutions of the House.

Ordered, That a Committee be appointed to prepare the said Impeachment. And it is referred to sir Wm. Jones, and others: And the said Committee is impowered to receive further informations against the said Richard Thompson: And to send for persons, papers, and records.

January 5, 1681.

very justly odious as he was to the majority of his subjects-without a House of Commons to carry on his government during the four last years of his life.

In his 'Declaration to all his loving subjects, touching the causes and reasons that moved him to dissolve the two last parliaments' (which Declaration, his majesty in council, on the 8th of April, 1681, ordered to be printed and published, and read in all churches and chapels throughout the kingdom, and which, as it appears, was drawn up by lord chief justice North) he specially mentions in the catalogue of the vicious measures of the House of Commons, arbitrary orders for taking our subjects into custody, for matters that had no relation to Privileges of Parliament.'

6

The mention of this matter by two of the contemporaneous historians, Roger Coke and Roger North, is curious and perhaps instruc

tive :

of the two last parliaments, when they were "The Commons, heated by the Dissolutions searching into the discovery of the Popish ridiculing the Popish Plot, and for abhorring Plot, and exasperated against the Tories, for petitioning the king to let the parliament sit, against it, &c. proceeded in another temper, in order to prosecute and secure the nation in truth, I do not desire the prosecution of I think, than any other ever before; and, the Commons in the Long Parliament, in the first ten years, against the Protestant Dissenters, and of the Commons of this parliament against the Tories, should be taken for precedents by any parliament in time to come.

"When parliaments met annually, or at least frequently, I think complaint cannot be found against any man for Breach of Privilege: but when there were long intervals of parliaments, from whence the consequence resolved into long sittings of parliaments, which began in the reign of Henry 8, then the inconvenience of privilege first began; nor do I find any beOrdered, That the said Serjeant at Arms before the latter end of Henry 8, nor does Mr. impowered to receive sufficient security for the forthcoming of the said Richard Thompson, to answer to the Impeachment of this House against him.

A Petition of Richard Thompson, clerk, in custody of the Serjeant at Arms attending this House, was read.

The Parliament was soon afterwards dissolved, and I have not found in the Journals any subsequent proceedings against this Thompson.

Ir should be noticed, that at the time when this Case occurred, the House of Commons practised commitments, as for Breach of Privilege, with a frequency and extent which seem to have excited much disgust and discontent; and it is not improbable that the prevalence of those feelings thus excited greatly contributed to enable king Charles the Second-odious, and

Petit, in his Precedents [of Exemptions] from arrests, and other privileges of parliamentmen, cite any before the 34th of Henry 8, in case of Mr. George Ferrers, burgess for the and this was taken for such a novelty, that he town of Plymouth, being arrested for debt; takes up near seven pages to recite the proceedings of the Commons upon it; and how the king being advertised thereof, called the Chancellor, the Judges, the Speaker of the Commons, and the gravest persons of them, wherein he commended the wisdom of the Commons in maintaining their privileges, and that the privileges of parliament extend to the servants of the Commons from arrests, as well as to the persons of the Commons. It is worthy observation with what sobriety and justice the Commons proceeded herein: they ordered their serjeant forthwith to repair to the Compter in Bread-street, wherein Mr. Ferrers was committed, with his mace, to demand his delivery;

which the serjeant did to the officers of the Compter, who notwithstanding refused to do it, and beat and hurt some of the serjeant's officers, and broke his mace; and during the brawl, the sheriffs of London came in, who countenanced the officers of the Compter, and refused to deliver Mr. Ferrers, and gave the serjeant proud language, and contemptuously rejected his message: Hereupon the Commons commanded the serjeant to require the sheriff's of London to deliver Mr. Ferrers by shewing them his mace, which was his warrant for so doing. Whereupon the sheriff's delivered him accordingly; but then the serjeant having fur-nalties added by the statutes; and that, though ther command from the Commons, charged the sheriffs to appear personally on the morrow by eight of the clock, before the Speaker, in the nether House, to bring thither the Clerks of the Compter, and such other of their officers as were parties in the fray, and to take into custody one White, who had wittingly procured the said arrest in contempt of the privilege of parliament.

pear before them, to answer for themselves before the House passed any censure upon thent. 3. That in none of these censures they enjoined the delinquent to pay their fees to their serjeant, for the serjeant is the king's officer; and by the 26th West. 1, no officer of the king's shall take any fee or reward for doing his office, but what he receives from the king, upon penalty of rendering double to the plaintiff, and be further punished at the will of the king. And sir Edward Coke in his first Inst. lib. 3. sect. 701, tit. Extortioners, says, this was the antient common law, and the pe

"Next day the two sheriffs, with one of the clerks and White, appeared in the Commons House; where the Speaker charging them with their contempt and misdemeanor, they were compelled to make immediate answer, without being admitted to council [qu. to have counsel]; and in conclusion the sheriffs and White were committed to the Tower, and the clerk (which was the occasion of the fray) to a place called Little Ease, and the officer which did the arrest, called Taylor, with four other officers, to Newgate, where they remained from the 28th to the 31st March, and then were delivered at the humble suit of the mayor and their other friends.

some statutes since have allowed the king's officers in some cases to take fees for executing their offices, yet none other can be taken but what such statutes allow; and that all officers of the king, who take fees otherwise, are guilty of perjury. I would know by what law the Commons' serjeant takes his fees, and how the Commons can absolve him from perjury for taking such fees.

"Whereas in this parliament rarely a day passed wherein men upon bare suggestions, and absent, were not judged, and execution ordered for high and notorious breaches of the Commons' privileges, yet most of these not foreknown, and ordered to be taken into custody, though in Northumberland and Yorkshire and rarely I think any of them were discharged without paying their fees; nay, they outrun all that was ever thought of before; for on the 14th of December, having voted one Mr. Herbert Herring to be taken into custody, and Herring absconding, the House resolved, That if he did not render himself by a certain day they would proceed against him by bill in parliament for endeavouring by his absconding to avoid the justice of the 'House.'

"The next breach of privilege reported by Petit, is eight years after, viz. the 4th of Edward 6, by one Withrington, who made an assault upon the person of one Brandling, Bur- "It was strange methought that the Comgess of Newcastle; but the parliament drawing mons should be so zealous against any arbitowards an end, the Commons sent Withring-trary power in the king, and take such a latiton to the privy council, but the council would not meddle in it, and sent the bill of Mr. Brand- | ling's complaint back again to the Commons according to the antient custom of the House; whereupon the bill was sent to the Lords from the Commons, when Withrington confessed he began the fray upon Dr. Brandling, upon which he was committed to the Tower. This was in the year 1550.

Mr. Petit finds not another breach of privilege till the 14th of Elizabeth which was done by one Arthur Hall, for sundry lewd speeches used as well in the Commons House, as abroad; who was warned by the serjeant to appear before the bar of the Commons to answer for the same, and upon his knees, upon the humble confession of his folly, he was remitted with a good exhortation given him by the Speaker. Here I observe these three particulars: 1. The rarity of these breaches of privileges of parliament in former times. 2. The justice of the Commons in their proceedings of breach of privilege, to cite the person or persons to ap

tude to themselves, which puts me in mind of a story I have heard of an old usurer, who had a nephew who had got a licence to preach, and the uncle having never done any thing for his nephew, he resolved to be revenged upon his uncle in a sermon which he would preach before his uncle in the parish where he lived: he made a most invective sermon against usury and usurers; but after the sermon was done, the uncle thanks his nephew for his good sermon, and gave him two 20s. pieces: the nephew was confounded at this, and begged his uncle's pardon for what he had done, for he thought he had given him great offence: No,' said the uncle, Nephew, go on and preach other fools out of the conceit of usury, and I 'shall have the better opportunity of putting out my money.'" 2 Coke's Detection, p. 255.

"Afterwards he" [Kennett]" comes to the great work of mortifying these Abhorrers, and there he is full as copious and honest; for he tells only of nine or ten, in a naked list of gen

tlemen, sent for by the serjeant at arms, and committed by the House of Commons, without any distinction of cases or circumstances, but only for detesting and abhorring petitioning for the sitting of the parliament. That is his tune upon all occasions. And here he is forced to croud in by the by, that it was a breach of the privilege of parliament; which vote did indeed come forth at last, otherwise this committing folks had gone with less colour. But, withal, that the proceeding raised a great clamour in the country; for it had not been usual to send for gentlemen in custody for what they did upon grand juries, and in way of duty, as well in giving testimony of their loyalty to the king, as in resisting a tumultuous trade of hand gathering in the country, to the very great dis-up, some saying that he was indisposed, others turbance of the neighbourhood and the public peace, only because they happened to be misunderstood in the House of Commons. It certainly was prejudicial to the authority of the House of Commons, and added to the disposition in the kingdom of relying upon the king's good government; and many said, Shall they take away the liberties of the king's people, who are entrusted to defend them against all arbitrary powers whatsoever? And it gave occasion to the king to justify the dissolving, saying, as in his declaration, That they returned arbitrary orders for taking our subjects into custody for matters that had no relation to privileges of parliament.-Strange illegal votes!-declaring divers persons to be enemies to the king and kingdom, without any order or process of law, any hearing of their offence, or any proof so much as offered ' against them.'

presented to the judge of assize the grand jury's Address to his majesty in the tenor of an Abhorrence. Upon naming him in the House of Commons, for the leader of this Abhorrence, he was ordered to be taken into custody of the serjeant at arms. And the serjeant sent down his deputy to bring the gentleman up; but he would not submit to the arrest, the officer might take his course. For which he alledged that he knew no law for the taking away his liberty on account of what he did as a grand jury man, in a court of justice, sworn, or to some such effect; whereupon the officer returned without his prey. This was a dash of cold water, and took down the ferment of the whole business. And the matter was hushed

that he could not be found; and so nothing was farther done against him. And no more men of any sort were sent for into custody upon this account; for the wisest of the faction began to perceive there had been too many sent for already. I remember well that the name of this Mr. Stowell was famous, and cried up in and about London, and all over England, and celebrated in healths of course, as of a general after victory, or rather a solemn assertor of the people's liberty. I never knew the like in the case of a private person, except that of Dr. Sacheverel; the latter run higher, but the difference was only in majus et minus. It was impossible a faction (without doors) should rage and tyrannise, as the party did about the beginning of this parliament, and not lose the hold they had of the people, whom they had led into a tolerable opinion of them. There was scarce a day past, but they were gratified with hearing some person was sent for in custody for abhorring. Sir George Treby said, they (meaning the House of Commons) kept an hawk, (which was their serjeant at arms) and they must every day pro

The effect of these harsh proceedings appeared in the case of one Mr. Stavel, or Stowel,* a gentleman of a good family in Devonshire. He was foreman of a grand jury at Exeter, and Commons Journal, "Sabbati, 4to die De-vide flesh for their hawk. I can better relate cembris, 1680, p. m. The House being informed that Mr. William Stawell, in custody of the Serjeant at Arms attending this House is sick, and not able to appear before this House, Ordered, That Mr. Stawell have a month's time given him for such his appearance." It seems probable that this entry relates to the person mentioned by North. Mr. Hume, indeed, 8 Hist. 131. Ed. of 1807. tells us, that "the vigour and courage of one Stowel, of Exeter, an Abhorrer, put an end to the practice" [of arbitary and capricious commitments]. "He refused to obey the serjeant at arms, stood upon his defence, and said, that he knew of no law by which they pretended to coinmit him. The House finding it equally dangerous to proceed or to recede, got off by an evasion; they inserted in their votes that Stowel was indisposed, and that a month time was allowed him for the recovery of his health." He quotes no authority; so that he "stood upon his defence," and "got clear off by an evasion," (no very dignified historical phraseology), may perhaps be mere inventive decoration.

this for truth, because it was spoke to myself. The serjeant's name was Topham, and the much work he had upon his hands, at this time, ad terrorem populi Regis,' had made it proverbial, on all discourse of peremptory commitments, to say take him Topham;" which, for ought I know to the contrary, may, from that authentic original, continue a proverb at this day. Whatever the commitments were, the dread was almost universal; for after the vote, that traducing petitioning should be punished as a Breach of Privilege, who could say his liberty was his own? For, being named in the House for an Abhorrer, take him Topham.' But the consequence of this proceeding, as I have hinted it, may be a lesson to all powers, on whatsoever foot they are erected, that they take care to perform their duty according to the intent of their institution, thereby making themselves useful, and not a terror to the peo ple under them; for if, instead of that, out of private regards, they grow intemperate, irregular, and injurious, they will lose ground, and

at length be humbled, if not wholly lost."

North's Examen, p. 560.

These Reports are as follows:

So, too, Burnet, 1 Own Times, 484, fol. ed. REPORTS from the SELECT COMMITTEE ap

of 1724:

"The House did likewise send their serjeant to many parts of England, to bring up abhorrers as delinquents: upon which the right that they had to imprison any besides their own members came to be much questioned, since they could not receive an information upon oath, nor proceed against such as refused to appear before them. In many places, those for whom they sent their serjeant refused to come up. It was found that such practices were grounded on no law, and were no elder than queen Elizabeth's time. While the House of Commons used that power gently it was submitted to in respect to it; but now it grew to be so much extended, that many resolved not to submit to it." [Query, as to what Burnet says of the House of Commons not proceeding against such as refused to appear before them, see the Proceedings in the Case of Jay and Topham, A. D. 1689, infra.] See, too, Ralph, 516, 517.

Much attention has been lately (I write in the month of June 1810) directed to the topic of commitment by the House of Commons, in consequence of the publication of a Letter, from "Sir Francis Burdett to his Constituents denying the power of the House of Commons to imprison the people of England." And in addition to the copious discussion of the subject in parliament, it has been ventilated from the press with much erudition. Mr. Williams Wynn has published a learned "Argument upon the jurisdiction of the House of Commons to commit in cases of Breach of Privilege," and a powerful writer, (Mr. Evans) under the signature of Publicola' has published" Six Letters on the Liberty of the Subject and the Privileges

pointed to consider of the Proceedings had, and to be had, with reference to the several Papers signed " FRANCIS BURDETT;" the Contents of which relate to his being apprehended, and committed to the Tower of London. Together with an APPENDIX. [As amended on Recommitment.]

FIRST REPORT.

It appears to your Committee, after referring to the Order of the House of the 5th day of April last, for the commitment of sir Francis Burdett to the Tower; the Warrants of the Speaker for that purpose; the Letter of sir Francis Burdett to the Speaker, dated the 17th day of April last; the Report and Examination of the Serjeant at Arms, touching his proceedings in the execution of such warrants; the notices to the Speaker referred to your Committee; the demand made upon the Serjeant at Arms of a copy of the warrant under which he arrested sir Francis Burdett; the writ served upon the Serjeant, and the summons. served upon the Speaker, and the notice of Declaration filed against the Serjeant; which said notices, demand, writ and summons, are all at the suit or on behalf of the said sir Francis Burdett, and all bear the name of the same solicitor, John Ellis; That the said proceedings have been brought against the Speaker, and the Serjeant, on account of what was done by them respectively in obedience to the Order of the House; and for the purpose of bringing into question, before a court of law, the legality of the proceedings of the House in ordering the commitment of sir Francis Burdett, and of the conduct of the Speaker, and the Serjeant, in obedience to that Order.

of the House of Commons." So likewise have 1. Your Committee, not in consequence of been published, "The Speech of Mr. Ponsonby any doubt upon the question so intended to be on the question relative to the Privileges of the raised, but for the purpose of collecting into House of Commons as commected with the one view such Precedents of the proceedings committal of Sir Francis Burdett and Gale of the House upon cases of Breach of Privilege Jones;" "Speech of William Adam, esq. &c. ;" as might afford light upon this important sub"A Concise Account of the Origin of the twoject, have in the first place examined the JourHouses of Parliament, with an impartial State- nals, with relation to the practice of the House ment of the Privileges of the House of Com-in commitment of persons, whether members mons, and of the Liberty of the Subject, by Edward Christian, esq. &c."; "The Law and Usage of Parliament in cases of Privileges and Contempt, &c. by Francis Ludlow Holt, esq.;" "A Vindication of the Privileges of the House of Commons, &c. by Henry Madock, jun. sq." "The Question considered: Has the House of Commons a right of committal to prison, &c. by E. A. Burnaby, esq. ;" and an anonymousShort Examination into the power of the House of Commons to commit, in a Letter to Sir Francis Burdett, bart." The House of Commons also has, by Votes of 11th and 23d May, 1810, caused to be printed the following documents:

or others, for Breaches of Privilege, by offensive words or writings derogatory to the honour and character of the House, or of any of its members; and they have found numerous instances, in the history of Parliament, so far as the Journals extend, of the frequent, uniform, and uninterrupted practice of the House of Commons to commit to different custodies, persons whom they have adjudged guilty of a Breach of their Privileges by so offending.

The statement of these Precedents, which establish the Law of Parliament upon this point by the usage of Parliament: the utility of such law, and the necessity which exists for its continuance, in order to maintain the dignity and