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HENRY R.

NENT.

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Impeachment against Warren Hastings.- for matt's resoned in the pliament.--The act

By Address, 15th February xliii Jour. 232. begins by reciting the petition of Rd. Stroude, 1789.-Printer and Publisher" The World" and after that recital proceeds thus: -Containing matter of scandalous and li

Soit baill aux Senio's. bellous nature, reflecting on the Proceedings of the House-By Address, 16th June That al suts, accusementis, condempnacons,

And on that be it inacted by the seide autorité, xliv Jour. 463.

execucions, fynys, am'ciamentis, punyshe1795.-John REEVES.-As author of a pam- ments, correocons, grev?ncez, charges, & imphlet, entitled, “ Thoughts on the Er glish positions putt or hadde or her aft' to be put or Government;" which was adjudged by the hadde unto or apon the seide Richard, and House to be a malicious, scandalous, and to every other of the p’son or p’sons afore seditious libel, containing inatter tending to specyfyed that nowe be of this p’sent p’liament create jealousies and divisions among His Majesty's loyal subjects; to alienate their any bylle speyking, reasonying or deelarying

or that of any p’liament her after shall be for affections from our present happy form of off any mat' or maters conc'nying the pliaGovernment in King, Lords, and Commons, ment to be comenced and treated off, be utt'ly and to subvert the true principles of our

free voyde & of none effecte, and on that be byt Constitution ; and to be a high breach of inacted by the seid autorite, That if the seid the Privileges of the House. --By Address, Richard Strode or any of all the seide other 15tb December-li Jour, 119, 235.

p’son or persons her atter be vexyd, trobeled or other wyse charged for any causes as is afore

saide, that then he or they & every of them so APPENDIX (C.)

vexed or troubled off and for the same, hare Claim and RECOGNITION of the PRIVILEGES of acc'on upon the case agaynste ev'ry such plson PARLIAMENT, and the Power of COMMIT- or p’sons so vexying or trobelying any cot'rie

to this ordin'ns & p'vision, in the whych acc'on

the p'tie greyvd shall be recov’treby'll damages 11 Rich. 2. Rot. Parl. vol. iii. 244.

& costis & that no p'teccon, essoaie nor wager En ycest parlement, toutz les Seign'rs si of lawe yn the seide acc'on in anywise be ad. bien espiritels come temporels alors presentz mytted nor receyvid.—A Ce'st Bill Ley Seinos clamerent come lour libertee & franchise, q'les ss Assent. grosses matires moevez en cest parleme

1606.--Com. Journ. vol, i. p. 349. movers en autres parlementz en temps a venir, tochantz Pieres de la Terre, serroient de- The Commons tell the Lords " that they mesnez, ajuggez, & discus par le cours de par- doubt not, but the Commons House is a Couri, Jement, & nemye par la Loy Civile, ne par and a Court of Record.” la commune Ley de la Terre, usez

1620.-Com. Journ. vol. i. p. 545. autres plus bas Courtes du Roialme: quell claym, liberte, & franchise le Roy lour be

In a Report of Precedents by sir Edward nignement alloua & ottroia en plein parle- Coke, it is agreed, “ The House of Com

mons, alone, hath a power of punishment,

and that judicial.”-Hall's Case 23 Eliz., and 32 Hen. 6. Rot. Parl. vol. v. p. 239.- Long's Case 5 Eliz. cited. Thorp's Case.

1675, June 4th.-Com. Journ. vol. ix. p. 354. The seid Lordes Spirituelx and Temporelx not entendying to empeche or hurt the Liber- In the matter of the appellant jurisdiction of tees and privilegges of theym that were come'n the House of Lords, the Commons assert their for the commune of this lande to this present right“ to punish by imprisonment a Commoner parlement, but egally after the cours of lawe to that is guilty of violating their privileges, that mynystre justice, and to have knowlegge what being according to the known laws and custom the lawe will wey in that behalve, opened and of Parliament and the right of their privileges declared to the justices the premissez, and axed declared by the king's royal pre recessors in of them whether the seid Thomas ought to be former Parliaments and by himself in this;" delivered from prison, by force and vertue of and..." that neither the Great Charter, the the privelegge of parlement or noo.

To the Petition of Right, nor any other laws, do take which question the chefe justcez, in the name away the law and custom of Parliament, or of of all the justicez, after sadde communication either House of Parliament.” and mature deliberation hadde among theem, 1701.- Vol. xii. p. 767.-Kentish Petition. aunswered and said, that they ought not to aunswere to that question, for it hath not be

Resolved, That it is the opinion of this used afore tyme that the justicez should in eny committee, that to assert the House of Com. wyse determine the privilegge of this high court mons have no power of commitment, but of of parlement.

their own members, tends to the subversion of

the constitution of the House of Commons. . Hen. 8. The original Roll in the parlia- Resolved, That it is the opinion of this ment office.-Stroude's Case.

committee, That to print and publish any books This is the act conc'nyng Richard Stroude or libels reflecting upon the proceedings of the

en

ment.

House of Commons, or any member thereof, \ " barons of the Exchequer, are assistants to the for or relating to his service therein, is a high" Lords to inform them of the common law, violation of the rights and privileges of the “ and thereunto are called severally by writ: House of Commons

“ neither doth it belong to them (as hath been

“ said) to judge of any law, custom, or priAshby and White.

“ vilege of parliament: And to say the truth, Conferences between the two Houses. “ the laws, customs, liberties, and privileges of

The Commons at the second conference with “ parliament, are better to be learned out of the the Londs re-assert their Resolution of 1701 : “ rolls of parliament, and other records, and by

"For it is the ancient and undoubted right of “ precedents and continued experience, than the House of Commons to commit for breach - can be expressed by any one man's pen.” it of privilege; and the instances of their commit- 26 Car. 2.-1674.–State Trials, Soame's u ing persons (not members of the House) for

Case. "breach of privilege, and that to any her " majesty's prisons, are ancient, so many, and

Lord Chief Justice North said, “I can see * so well known to your lordships, that the

no other way to avoid consequences deroga* Commons think it needless to produce them.”

tory to the honour of the parliament, but to -Lords Journ. vol. xvii. p. 709.

reject the action; and all others that shalt

“relate either to the proceedings or privilege Lords Journ. vol. xvii. p. 714. “ of parliament, as

our predecessors have The Lords in answer say,--" The Lords

" done." ** nerer disputed the Commons power of com- “ For if we should admit general remedies in ti mitting for breach of privilege, as well per- “ matters relating to the parliament, we must ** sons who are not of the House of Commons " set bounds how far they shall go, which is a * as those who are,” &c.

“ dangerous province; for if we err, privilege

“ of parliament will be invaded, which we ought APPENDIX (D.)

“ not in any way to endamage.” RECOGNITION of the Law and Privilege of 1675.--State Trials, -Earl of Shaftesbury's

Case.* Parliament, and of the Power of the House of Cominons to commit for Con- In the case of the earl of Shaftesbury, who tempt, by Legal Authorities, and by the was committed by the House of Lords, Decision of Courts of Justice.

“ for high contempts committed against the

“ House,” on being brought up to the King'sCoke, 4 Inst. fo. 15.

bench on the return of an Habeas Corpus, Lord Coke observes, upon the claim of the the court unanimously determined against enLords, in 11 of Rich. 2. sanctioned by the tertaining the case; when Rainsford, Chiefking (as stated in the first paragraph of Appen- Justice, said, “ This court has no jurisdiction dix C.) under the head of Lex et Consuetudo " of the cause, and therefore the form of the

Parliamenti ;' as followeth—" And as every “ return is not considerable. We ought not to "court of justice hath laws and customs for its “extend our jurisdiction beyond its limits, and “ direction, some by the common law, some by the actions of our ancestors will not warrant " the civil law and common law, some by, pe

“ such an attempt. "culiar laws and customs, &c, so the high “ The consequence would be very mischiev“ court of Parliament-suis proprijs legibus et ous, if this court should deliver a member of "consuetudinibus subsistit-It is lex et consue

“ the House of Peers and Commons who are "tudo Parliamenti, that all weighty matters

“ committed, for thereby the business of par any Parliament, moved concerning the “ liament may be retarded ; for it may be the " Peers of the realm, or Commons in Par

« commitment was for evil behaviour, or inde " liament assembled, ought to be determined, “ cent reflections on other members, to the dis"adjudged, and discussed by the course of “ turbance of the affairs of parliament.

Parliament, and not by civil law, nor yet by “ The commitment in this case is not for safe "the common laws of this realm used in infe- “ custody; but he is in execution of the judg"rior courts; which was so declared to be,"ment given by the Lords for contempt; and "secundum legem et consuetudinem Parlia- “ therefore, if he should be bailed, he would menti

i-concerning the Peers of this realm," be delivered out of execution ; for a contempt by the King, and all the Lords spiritual and" in fucie curiæ there is no other judgment or temporal; And the like, pari ratione, is for “ execution. " the Commons for any thing moved or done “ This court has no jurisdiction, and there"in the House of Commons."

“ fore he ought to be remanded. I deliver no

“ opinion whether it would be otherwise in case Coke, 4 Inst. fo. 50.

" of a prerogative.” And on another occasion, in treating of the laws, customs, liberties and privileges of the 1751, Feb. 7th.—1 Wilson, p. 200.-Murray's

Case. court of Parliament, which he saith, “ hath " been much desired, and are the very heart- When he was brought up to the King's " strings of the commonwealth :” Lord Coke says, “ All the justices of England and See vol. 6, p. 1270 of this Collection.

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bench by a Habeas Corpus, and the court Lord Mayor, who was committed to the Tower unanimously refused to discharge him, Mr. by order of this House, under the Speaker's Justice Wright said, “ It appears upon the Warrant, on 25th March 1771, was brought up “ return of this Habeas Corpus, that Mr. by Habeas Corpus before the Court of Common “ Murray is committed to Newgate by the Pleas in Easter Term. The question was fully “ House of Commons, for an high and dan- argued, and, by the unanimous judgment of “gerous contempt of the privileges of that the Court, he was remanded. « House; and it is now insisted on at the bar, The Lord Chief Justice de Grey, in giving " that this is a bailable case, within the mean- the opinion of the Court, stated, " That this “ing of the Habeas Corpus act.

power (viz, of commitment) must be inherent “To this I answer, that it has been deter- in the House of Commons, from the very “ mined by all the judges to the contrary; that “ nature of its institution; and therefore is part « it could never be the intent of that statute to “ of the law of the land. They certainly al“ give a judge at his chamber, or this court, “ ways could commit in many cases; in mat

power to judge of the privileges of the House “ ter of elections, they can commit sheriffs, 66 of Commons.

mayors, officers, witnesses, &c. and it is now " The House of Commons is undoubtedly an agreed, that they can commit generally for “ high court; and it is agreed on all hands “ all contempts. All contempts are either pu. “ that they have power to judge of their own “ nishable in the Court contemned, or in some

privileges; it need not appear to us what the “ higher court. Now the parliament has no “ contempt was for; if it did appear, we could “ superior court; therefore the contempt “ not judge thereof.

“ against either House, can only be punished “ Lord Shaftesbury was committed for a " by themselves.” “ contempt of the House; and being brought «i The Stat. of James 1. cap. 13, sufficiently “ here by an Habeas Corpus, the court re- proves that they have power to punish it, in “ manded him; and no case bas been cited “ these words : "Provided always, that this " wherever this court interposed.

Act or any thing therein contained shall not * The House of Commons is superior to this “ extend to the diminishing of any punishment “ court in this particular; this court cannot “ to be hereafter by censure in parliament in" admit to bail a person committed for a con- “ flicted upon any person which hereafter shall “ tempt in any other court in Westminster- “ make or procure to be made any such arrest 6hall."

as aforesaid ;' so that it is most clear that the Dennison, Justice.-—This court has no legislature have recognized this power of the “ jurisdiction in the present case. We granted “ House of Commons. In the case of the “ the Habeas Corpus, not knowing what the “ Aylesbury men, the counsel admitted, Lord “ commitment was; but now it appears to be “ Chief Justice Holt owned, and the House of “ for a contempt of the privileges of the House “ Lords acknowledged, that the House of “ of Commons: what those privileges (of ei- “ Commons had power to commit for con“ ther House) are, we do not know; nor need “ tempt or breach of privilege. Indeed, it " they tell us what the contempt was, because “ seems they must have power to commit for ** we cannot judge of it; for I must call this any crime. When the House of Commons 4 court inferior to the House of Commons with s adjudge any thing to be a contempt or a “ respect to judging of their privileges, and « breach of privilege, their adjudication is a “ contempts against them. I give my judgment o conviction, and their commitment in conse“ so suddenly, because I think it a clear case, quence an execution;t and no Court can " and requires no time for consideration." s discharge or bail a person that is in execu

Foster, Justice.-" The law of Parliament - tion by the judgment of any other Court." " is part of the law of the land ; and there

And he concluded his judgment in these cs would be an end of all law, if the House of

words : “ Commons could not commit for a contempt. “ All courts of record (even the lowest) may “ I am perfectly satisfied that if lord Holt “ commit for a contempt; and lord 'Holt, “ himself were to have determined it, the Lord “ though he differed with the other judges, yet “ Mayor would have been remanded. In the “ agreed the House might commit for a con- < case of Mr. Murray, the judges could not “ tempt in the face of the House. As for the “ hesitate concerning the contempt by a man * prisoner's illness, we can take no notice of it, « who refused to receive his sentence in a pro“ having no power at all in this case.”

per posture; all the judges agreed, that he The prisoner was remanded.

« must be remanded, because he was com.

“ mitted by a Court having competent juris1771.-3 Wils. 188.-Crosby's Case.*

- diction. Courts of justice have no cogni In the year 1771, Brass Crosby, esq. the

* The Commitment in Rudyard's Case, * See this Case hereafter in this Collection. Vent. 22, was a Commitment in execution It seems rather surprising that notice of the and therefore it was necessary in that case te earl of Devonshire's Case (in this Collection, A. state the evidence, per lord Camden in Wilkes' D. 1687) was not taken either in Wilkes's Case, Habeas Corpus Case, A. D. 1763, in' this Col or Crosby's Case.

lection.

case

148.

* gance of the acts of the Houses of Parlia- , " by the judgment of his own house. All "ment, because they belong ad aliud eramen. “ courts, by which I mean to include the two * I have the most perfect satisfaction in my “ Houses of parliament and the courts of WestI own mind in that determination. Sir Mar- “ minster-Hall, can have no control in matters * tin Wright, who felt a generous and distin

“ of contempt.* The sole adjudication of con* gnished warmth for the liberty of the sub-"tempts, and the punishment thereof, in any "ject; Mr. Justice Denison, who was so free manner, belongs exclusively, and without « from connections and ambition of every kind ; |“ interfering, to each respective court. In* and Mr. Justice Foster, who may be truly “ finite confusion and disorder would fellow, if * called the Magna Charta of liberty, of per- “ courts could by writ of Habeas Corpus exa* sons as well as fortune; all these revered “ mine and determine the contempts of others.t “ judges concurred in this point. I am there“fore clearly and with full satisfaction of opi- • Here is a laxity of expression which might "nion, that the Lord Mayor must be re- not have been expected from the learned au* manded."

thor of the · Commentaries.' The meaning Gooid, Just.-" I entirely concur in opinion seems to be, that the two Houses of Par"bith my Lord Chief Justice, that this Court liament and the courts of Westminster-hall, * bath nó cognizance of contempt or breach of are not subject to control in matters of con** privilege of the House of Commons; they tempt, but that other courts are subject to " are the only judges of their own privileges; control in such matters. See Clarke's case, " and that they may be properly called judges, Tremaine's Pleas of the Crown, 442. 2 Le* appears in 4 Inst. 47, where my lord Coke vinz. 200. 1 Vent. 302. 327. 3 Keb. 764. 799. " says, an alien cannot be elected of the par- 811. Dr. Bentley's 8 Mod.

hament, because such a person can hold nu Fortescue 202. 2 Lord Raym. 1331. Strange " place of judicature. Much stress has been 557. 2 Kyd on Corporations 70. In Murray's * Laid

upon an objection, that the Warrant of case Mr. Justice Foster says, that, “ all courts " the Speaker is not conformable to the order of Record, even the lowest, " (as the Copit

of the House; and yet no such thing ap- of Piepoudre we may suppose) have power to

pears upon the return, as has been pretended. imprison for contempts. And as to contempts • The Order says, that the Lord Mayor shall in facie curiæ,' which obstruct the proceedings " be taken into the custody of the serjeant or of the court, it seems that they must of neces

bis deputy ; it does not say, by the serjeant sity have power to remove the obstruction ; to " or his deputy. This Court cannot know the abate the nuisance, and so is. Moor 247. Si "uature and power of the proceedings of the un dit al Judge, Magistrate, ou auter officer

House of Commons : it is founded on a dif- paroles que luy disable defaire son office ou « ferent law; the · lex et consuetudo parlia- / fait auter contempt, il peut luy imprison.” So "menti,' is known to parliament men only. tou Dean's case, Croke, Eliz. 689.

Trewynniard's Case, Dier, 59, 60. When may be imprisoned for a contempt done in " matters of privilege come incidentally before court but not for a contempt out of court.” " the Court, it is obliged to determine them, to So, too, is Sparkes, and others, .. Martin, 1

prefent a failure of justice. It is true this Vent. 1. " The Court of Admiralty may "court did, in the instance alluded to by the punish one that resists the process of their “ counsel at the bar, (Wilkes's Case, 2 Wils. court, and may fine and imprison for a con" 151.) determine upon the privilege of parlia- tempt to their court acted in the face of it.” "ment in the case of a Libel; but then that So, too, sir George Newman says, (Proceed" privilege was promulged and known; it ings and Debates of the House of Commons in " existed in records and law books, and was al- 1621, p. 109.) “ The Judges have oft-times " lowed by parliament itself. But even in that cause to commit for contempt in the Court."

case, we now know that we were mistaken; If there he any principles of law whereby the “ for the House of Commons have since deter- sufficiency of a commitment for contempt may * mined, that privilege does not extend to mat- be judged of in the case of one court, it is not " ters of Libel. The cases produced respect- very apparent why the same principles should “ing the High Commission Court, &c. are not be applied to the judging of the suf" not to the present purpose, because those ficiency of commitments for contempts by " courts had not a legal authority. The reso- any other court. That courts of Westmin"lation of the House of Commons is an adju- ster-hall will take conusance of each others "dication, and every court must judge of its commitments for contempts, see the argu. * own contempts."

ment of Chief Justice Vaughan in Bushell's Blackstone, Justice.-" I concur in opinion, case in this Collection, vol. 6, p. 999, and the " that we cannot discharge the Lord Mayor cases of Astwick, Apsley, and Milton, cited in * The present case is of great importance, be- that Case, pp. 1004, 1022. "cause the liberty of the subject is materially † Lord Mansfield, in the case of Hassells * concerned. The House of Commons is a and another against Simpson (93 Dougl. Rep.

sopreme court, and they are judges of their in note 2d edit.), speaking of Mr. Justice Blackown privileges and contempts, more espe- stone, warned his hearers against implicit re

cially with respect to their own members.- liance on great names. It would have been " Here is a member committed in execution more satisfactory if Mr. Justice Blackstone

D

" A inan

VOL, VIII,

to pu

6

“ This power to commit results from the first “nish. No other court shall scan the judg,

principles of justice ; for if they have power “ ment of a superior court, or the principal * to decide, they ought to have power

“ seat of justice. As I said before, it would Rad specified some particulars of the infinite right to determine in such prosecutions any * confusion and disorder' which, he lays it other matters, than the mere fact of publication, down 'would follow, if courts could by writ of and the application of the innueridoes. The * Habeas Corpus examine and determine the declaratory statute 32 Geo. 3, c. 60, has fully • contempts of others;' and had also given established the right of juries in such cases to some proof that this . infinite confusion and dis- give a general verdict of Guilty or Not Guilty order must follow, together with some account upon the whole matter put to issue on the inof the way in which it would follow. For díctment or information. This statute origithere appears not to be any absurdity in sup- nated in the House of Commons, where the posing that the examinability of commitments motion for the bill was made by Mr. Fox and for contempts, might tend to render those who seconded by Mr. Erskine. Most undoubtedly should order such commitments more circum- the success of the bill is in a very high degree 'spect and cautioas in the exercise of that power to be attributed to the inflexible constancy and than otherwise they might be; that it would unremitted zeal, with which the latter of these tend to render their respective courses of pro- two great men had exerted the vast powers of ceedings less capricious, more consistent, and his eloquence in maintenance of those rights of ‘more uniform, than they otherwise might be; juries, which the statute asserts. And a most that in consequence of those tendencies it striking illustration it is of the fallibility of sucia "might probably by degrees produce an intelli- predictions, as that of Mr. Justice Blackstone in gible definite practical code, respecting con- Crosby's case, that whereas, previously to the tempts and the punishments for them ; that if passing of the act of 32 Geo. 3, c. 60, disagree these consequences should ensue, confusion and ments and altercations between the court and the disorder' would be prevented rather than pro- counsel, and the jury, took place in a great promoted ; and that, it from the operation of com- portion of the trials which were had on crimipetitions for pre-eminence, of erroneous no- nal prosecutions for libels ; and notwithstandtions of dignity, or of any other cause, con- ing it had been declared as we have seen by * fusion and disorder' should in fact arise, such magistrates of the greatest learning, that the

confusion and disorder' probably would not establishment of such a system would produce be infinite, but might be speedily, easily and infinite confusion and disorder; nevertheless so completely suppressed by a legislative defini- it is, that since the indisputable establishment tion of at least the limits of contempts, and of of this system, no confusion whatever has octhe punishments applicable to them. Predic- curred, the functions of judges and juries have tions of confusion, disorder,' and other mischief been executed within their respective limits; to ensue from interruption of the exercise of without any competition for jurisdiction ; to the irregular powers, have not always been verified. advancement of justice, and to the dignity of When the powers of issuing general warrants its administration. The change which has and warrants for seizure of papers, which had been operated by the statute cannot be more been sanctioned by numerous precedents, were perspicuously stated, nor can its beneficial questioned (See the cases in this Collection of effects be more happily illustrated than in the Leach v. Money, and others, A. D. 1765, and of following passage, which I extract from a note * Entick v. Carrington, and others, in the same on the subject of the trial of the dean of St. yeat), many such predictions were made, but Asaph' in the Speeches of the honourable since the exercise of those powers has been an- • Thomas Erskine' (now jord Erskine), &c. vol. nulled, I have not met with any complaint (except 1, p. 382. indeed one which occurs in sir John Hawkins's 6. The venerable and learned Chief Justice life of Dr. Johnson, but which is too frivolous [lord Mansfield] undoubtedly established by to deserve notice; it relates to the detention his argument, that the doctrine so soon afterof artizans who attempt to emigrate) that this wards condemned by the unanimous sense of annulment has produced a single bad conse- the Legislature when it passed the Libel Act, quence. In like manner while the judges did not originate with himself; and that he claimed the right of deciding two questions of only pronounced the law as he found it, estabfact (for such they are), viz. those of inten- lished by a train of modern decisions. But tion' and of • tendency in criminal prosecu- supported as we now are, by this judgment o tions for libels, which claim was supported by Parliament, we must venture humbly to diff the precedents of Clarke's case, before lord from so truly great an authority. The Libe Raymond, of Franklin's case before the same Bill does not confer upon the Jury any juris judge (in this Collection, A. D. 1731,) and of diction over the law, inconsistent with ti numerous other cases, it was repeatedly stated general principle of the constitution : bat een · by magistrates of transcendant talents, learning, sidering that the question of libel or no libel experience and authority (such, for instances, frequently a question of fact rather than of lav as lord Mansfeld, lord Thwlow, lord Kenyon, and in many cases of faet and law almost ins and Mr. Justice Buller,) that mhivite disorder parably blended together ; it directs the Jud And confusion would tisue,. if juries had the as in other cases, to deliver his opinion to

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