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“ occasion the utmost confusion, if every court " legislature since the revolution (see 9 and 10.

of this Hall should have power to examine “ W. 3, c. 15,) have created many new con- :
* the commitments of the other courts of the “ tempts. The objections which are brought,'
“ Hall for contempts; so that the judgment of abusive consequences, prove too much, be-
4 and commitment of each respective court as “ cause they are applicable to all courts of
** to contempts, must be final and without con- “ dernier resort :' et ab abušuo ad usum non
* trol. It is a confidence that may, with per- ««« valent consequentia,' is a maxim of law as
"fect safety and security, be reposed in the “ well as of logic. General convenience must
"judges and the Houses of Parliament. The “ always outweigh partial inconvenience; even
Jury upon the whole matter, including of of divers mischiefs both of state and common-
course the question of libel or no libel, leaving wealth.”
them at the same time to found their verdicts
upon such whole matter, so brought before * It seems generally to happen, that persons,
them as in all other criminal cases. The best who either possess or lay claim to power of any,
answer to the apprehensions of the great and kind, are strongly disposed to be of opinion
eminent Chief Justice, regarding this course of that they may be safely entrusted with suche
proceeding, as then contended for by Mr. Er- power. Thus in our own history, to omit the
skise, and now established by the Libel Act, is various instances of claims on the part of the
the experience of seventeen years since that act crown to exorbitant power, and to confine,

ourselves to a few judicial cases, it is not une * Before the statute it was not difficult for reasonable to believe that privy-counsellors of the most abandoned and profligate libeller, old thought they might be safely intrusted with gulty even of the laost malignant slander upon the vast power which they so mischievously private men; to connect his cause with the and oppressively assumed in the ancient. Couít. great privileges of the Jury, to protect inno- of Requests ;' that the council in James the, cence. Upon the Judge directing the Jury, first's time thought they might be safely in-, according to the old system, to find a verdict of trusted with the power to summon before then Guilty upon the fact of publication ; shutting members of the House of Commons, to comont altogether from their consideration the mand them to burn the notes, arguments and quality of the matter published, ingenious collections which they had made for preparing counsel used to seize that occasion to shelter a themselves to a conference with the Lords

upon guilty individual under the mask of supporting a most momentous constitutional question great pablic right; and Juries, to show that and afterwards to imprison and otherwise to they were not implicitly bound to find verdicts punish them for no other cause but that they of Guilty apon such evidence alone, were too had been assigned by the House of Commons successfully incited to find improper verdicts of to be agents in such conference (see Hargrave's acquittal : but since the passing of the Libel Preface to lord Hale's Treatise on the JurisdicAct, when the whole matter has been brought tion of the Lords House or parliament, p. ix. under their consideration ; when the quality of Note.); that lord Bacon thought he might safely the matter published has been exposed when be intrusted with the power by arbitrary incriminal, and defended when just or innocent, junctions to protect debtors 'from payment of Juries have listened to the Judge with atten- their just debts (see Proceedings and Debates of tion and reverence, without being bound in the House of Commons in 1620 and 1021, &e. their consciences (except in matters of abstract Oxford 1766 vol. 1: p. 157 et seq.),; that archa law), to follow his opinion, and instead of that bishop Laud and his coadjutors thought they uncertainty anticipated by lord Mansfield, the might safely be iutrusted with the arbitrary administration of justice has been in general power which they so cruelly exercised in the most satisfactory, and the public authority Courts of Star Chamber and High Commisbeen vindicated against unjust attacks, with sion; that Chief Justice Kelyng and other much greater security and more supported by judges thought they might be safely inpublic opiņion, than when Juries were instritrusted with the arbitrary power of fining ments in the hands of the fixed magistrates; and imprisoning jurors (as to which see the whilst at the same time public liberty has been cases of Penn and Mead, and of Bushell, secured by leaving the whole matter in all pub- arte, vol. 6, p. 951, 999, and the notes to those kic libels to the judgment and consideration of cases ;) and tlaat Jefferies, Crew, Cartwright, the people. This reformed state of the law, as Wright, Herbert, and Jenner, thought they it regards the liberty of the press, is now so m'ght be safely intrusted with the


which universally acknowledged, that the highest as Commisioners of Ecclesiastical Affairs’ they magistrates have declared in the House of employed for the purpose of subverting the Lords, that no new laws are necessary either to protestant religion. It is to be regretted, that support the state, or protect the people.' the learned judge did not adduce any proofs of

&r Edward Coke (Proceedings and Debates bis assertion, that,“ this confidence may with of the House of Commons, in 1620 and 1621, perfect safety and security be reposed in the vol. 2, p. 109) predicted that if the mittimus Judges and the Houses of Parliament ;" for of the Privy Council must contain the cause of indeed the truth of the assertion is by no means foramitnent; it tvould hinder the finding out self-evident. It is sutficiently obvious that the

1 found

“supposing (which in my conscience, I am “ and am sure that the House of Commons “ far from supposing) tha: in the present case

“ are both able and well inclined to do justice. “ the House bas abused its power. I know, “ How preposterous is the present murmur cases in which discretionary uncontrouled

Indeed the House of Commons has often power is most likely to be abused, and in which manifested a very laudable jealousy of illegal consequem!y it is most dangerous, are those in commitments by others. While the statute, which the interests or the personal feelings of 16 Car. 1, c. io, was in its passage, that the party, exercising such power are concerned. House resolved, (see lord Camden's judgment Now, if it be so indisputable, as the learned in the Case of Entick against Carrington and judge appears to have thought it was, that each others, A. D. 1765, in this Collection), “ that of the Houses of Parliament and that courts the body of the Lords of the Council, nor any may safely be intrusted with a discretionary one of them in particular, as a privy counsellor, uncontrouled power of imprisonment for what has any power to imprison any treeborn subever it may please them respectively to adjudge ject, except in such cases as they are authoto be a contempt towards themselves, in most rized by the statutes of the realm.” “ It is of which cases their personal feelings at least all one,” says lord Hale (Jurisdiction of the will be concerned; it may not perhaps be Lords House or Parliament, p. 109), “ to make

very easy to shew why they might not a law, and to have an authoritative power to a fortiori be still more safely intrusted with the judge according to that which the judge thinks like discretionary uncontrouled power of im- fit should be law,, though in truth there be no prisonment in other cases, in which their in- / law extant for it.” terests and their feelings are not concerned. How far the conclusion against the truth of But I apprehend the learned judge would the learned judge's dictum, to which the prescarcely have maintained that in such other ceding considerations appear to lead, has been cases they might be safely intrusted with dis- fortified by experience I cannot undertake to cretionary uncontrouled "power of imprison- affirın, because I have not been able to examine ment : seeing that, in the first volume of his so extensively as that would require into the Commentaries, p. 135, when illustrating “ the precedents upon the subject : but if the exergreat importance to the public of the preser- cise of this discretionary power shall be found vation of personal liberty,” he says, and with to have been at all analogous to the exercise of great truth, that “ If once it were left in the other sorts of uncontrouleu discretionary power power of any, the highest, magistrate to im- as recorded in our history, the precedents will prison arbitrarily whomever he or his officers certainly not corroborate sir William Blackthought proper,

there would soon be an end of stone's gratuitous assertion. I will mention all other rights and immunities." Yet indeed a few cases. And first an action of trespass it is very easily discoverable that if a vote or an brought in parliament in 18 Ed. I. adjudication of contempt by a House of Parlia- “ in an action of trespass brought in parment or a court be unexaminable elsewhere, and liament in 18 Ed. 1. (as was then the practice) if the power of imprisonment apon such vote or by the

king, the king's steward (of his houseadjudication be discretionary and uncontrouled; hold) Peter de Chanet, the king's marshal (of each House of Parliament and each court pos- his household) Walter de Fanecourt, the earl of sesses a discretionary and uncontrouled power Cornwall and the abbot of Westminster against of imprisonment for every action and every the prior of the Holy Trinity in London, and omission of a man's life ; nay, for the bare un- Bogo de Clare, (or, as the record expresses it, in proved imputation of any action or omission; which the two latter persons were attached to nay even without the imputation of any speci- answer the five former) for that the said prior fied act or omission. "ff” as Mr. Hargrave served an ecclesiastical citation upon the earl of (1 Jurid. Arg. and Cell. 16) very forcibly states Cornwall as he was going through Westminster it the doctrine of contempts be thus wide ; Hall to attend the parliament according to the if the House of Lords or Commons or the writ of summons he had received, by which Court of Chancery, or any of the great Courts citation the eart was commanded to appear on of Westminster Háll, may construe what they such a day at such a place before the arch. please into contempts, and may under that de- bishop of Canterbury, and the said Bogo de nomination without triał by jury convict all per. Clare procured the said prior to serve the said sons of crime, and have also an indefinite power citation, which serving the said citation is laid of punishing by fine and imprisonment, and if to have been in contempt of the lord the king, all this when done bethus unappealable and thus and to his disgrace of 10,000l. ; also to bavo unexaminable, what is there but their own wis- been to the prejudice of the ecclesiastical frandom and moderation, and the danger of abusing chise of the abbot of Westminster granted him so arbitrary a power, to prevent the House of by the court of Rome, by which Westminster Lords or the House of Commons, or any court Hall, as being within the jurisdiction of the of Westminster Hall, under shelter of the law abbot of Westminster, is exempted from all of contempts, from practising all the monstrous jurisdiction episcopal or archiepiscopal, and to tyranny which first disgraced and at length the abbot's damage thereby of 1,0001. also to overwhelmed the Star-Chamber ?”

have been to the prejudice of the office of the steward and marshal (of the king's household),

" and complaint! The House of Commons “ sons may be safely trusted with this power, " bave this power only in common with all the " they must surely be the Commons, who are #coarts of Westminster-Hall: and if any per- " chosen by the people; for their privileges to whose office alone it appertaineth, and to no passed upon Floyde may be seen at vol. 2, p. other, to serve all summonses and attachments 1153 of this Collection, in a brief report of his within the king's palace; and also to have case, which appears to have been throughout been to the dainage of the earl of Cornwall a tissue of irregularity, usurpation, and op

5,000l. The prior and Bogo de Clare con- pression. In illustration of the topic now fess the fact, and pat themselves upon the under consideration I will subjoin, at the end king' merey. And judgment is given against of this case, some passages respecting ther that they be committed to the Tower Floyd which occurred in the House of Comduring the king's pleasure. Afterwards Bogo mons, together with lord Oxford's reprobation de Clare is fined to the king in 2,000 marks, of the proceedings in the case. (a great sum now, in those days an immense In Michell's Case, 1621, (see a brief reme) and agrees to pay 1,000l. damages to the port of it, vol. 2, p. 1131, of this Collection,) earl of Cornwall for the trespass committed the House of Commons took upon them to against him, which the earl of Cornwall at the order : isstance of the bishops of Ely and Durbam, “ That he should be held unworthy to be a and other great med, afterwards remitted ex justice of the peace; and be declared disable cepting 1001.

and unworthy to be of that commission, or any Another early case is that of John de North other whatsoever. To be sent at two of the auptos referred to in the Appendix (E.) (Anse clock in the afternoon to the Tower through bogy) to the Report before us. This man was the street on foot."--He was pardoned to have an attorney of the Court of King's Bench, (to any farther punishment, in respect of his whicla circumstance attention should be given father's worth, who was secretary to Walsingin considering the case as an authority), and ham, and suffered much for religion in queen having written of the judges of that court, that Mary's time, and was then held to be a very they had independence enough, not to beswayed honest, religious gentleman : And so Michel by royal commands, he was adjudged in so doing was called to the bar to hear his sentence on his to have been guilty of a contempt of the court, knee.- After sentence passed be desired to be was committed into custody, and as it heard, but it was denied. seems was obliged to find mainperners. Lord Mr. Chancellor of the Dutchy. That he Coke thus relates the case, with some confu- might be heard after judgment, so as it be an sion of John and Robert.

humble suit ; or any thing not concerning the

sentence given by the House. Mc. 18 E. 3, coram rege Rot. 151. Libellum. Sir Edward Cooke. That he ought not to John de Northamptop, an attorney of the by the Vote of the whole House.

be heard after judgment: And so it was agreed King's-Bench, wrote a letter to John Ferrers one of the king's counsel , that neither sir Wm. tenced John Blount (this, Mr. Hargrave, Juri

In the same year the House of Lords senScot chief justice, nor his fellows the kings

jus: dical Arguments and Collections, 197, tells us tices

, nor their clerks, any great thing would is the first privilege precedent he finds for imdo by the commandment of our lord the king, any other of the realm ; which said John being Bridewell for life. His offence was counterbor of queen Philip, in that place, more then of prisonment for a term certain by the Lords) to

the pillory, and to imprisonment and labour in called, confessed the said letter by him to be feiting a peer's

protection. In 1623,

the Lords written with his own proper hand. • Judicium sentenced Morley for a libel on the Lord, Curiæ. Et quia prædictus Johannes cognovit Keeper (this, Mr. Hargrave, ub. sup. tells us is dictam literam per se scriptam Roberto de the first privilege precedent of a fine by the Ferrers, qai est de concilio regis, quæ litera Lords) to a fine of 1,000l. and the pillory: continet in se pullam veritatem : prætextu Two other cases I will report in the words of cujus dominus rex erga curiam et justiciarios Mr. Hargrave, (Preface to lord Hale's Tract suos hic in casu babere posset indignationem, on the Jurisdiction of the Lords' House or Par, good esset in scandalum justic' et curiæ.

liament.) Ideo dictus Johannes committitur maresc' et

“ Another case, in which judicature as be. * postea invenit 6 manucaptores pro bono gestu.'|tween the two Houses became the subject of

In 1621 the House of Commons proceeded consideration, occurred soon after the impeachagainst one Edward Floyde for speaking con- ment of lord Clarendon. It arose on petition temptuous-words against Elizabeth daughter of to the Commons from a Mr. Fitton, complain, king James the first, and her husband the Elec- ing of some exercise of jurisdiction by the tor Palatine. It is, perhaps, not quite clear whe- Lords: and on a report of the case from a comther the House of Commons did or did not con- mittee that the matter of jurisdiction was fit to sider these words alledged to have been spoken be argued at the bar of the House of Commons, against the prince and princess to be a breach the House appointed a day to hear it accordof their owo privileges, or a contempt toward ingly, and at the same time appointed a comabemselves, but the barsh sentence which they mittee to inquire into precedents in cases of e " and powers are the privileges and powers of " House have acted according to their right or " the people. There is a great fallacy in my “ not ? Can any good man think of involving “ brother Glynn's whole argument, when he " the judges in a contest with either House of “ makes the question to be, Whether the parliament, or with one another? And yet like kind; and amongst the Committee were brought the two Houses to a direct issue on one named, solicitor general Finch, afterwards lord great branch of the jurisdiction claimed by the ehancellor Nottingham, Mr. Serjeant Maynard, Lords but denied by the Commons: or perhaps Mr. Vaughan, afterwards lord chief justice, the Commons thought this case of Fitton and and Mr. Prynne ; and the three latter were de- that of Carr too much mixed with contempt sired to take special care in the business. and breach of privilege to be convenient cases What was the precise, nature of this case ot to make their stand upon. However these two: Mr. Fitton, is not stated in the Journal of the cases should not be forgotten. Either they Commons, or in the printed account of the de- were cases of breach of privilege and contempt, bate. But from various entries in the Journal or they were not. If they were, the continuof the Lords the substance of the case appears ance of imprisonment after the prorogation of on the whole to have been to this effect. Mr. parliament, the fining, and every other part of Fitton and three others had been formerly pro- the sentence in both cases, became disputable : ceeded against before the Lords for contriving for it may be asked, how on breach of privilege and publishing a libel upon lord Gerrard of are the Lords warranted to do more than can be Brandon ; and the Lords in July 1663 had sen- done by the Commons in a like case ? On the tenced Fitton in a fine of 5001. to imprisonment other hand, if they were not cases of privilege in the King's-Bench prison till he should pro- and contempt, then the proceedings of the Lords duce Abraham Granger, whose name was to against Fitton and Carr were open to the objecthe libel, and to find securities for good beha- tion of an exercise by the Lords of an original viour during life, with direction to the chief jurisdiction over crime, of having adjudged a justice of the King's-Bench to take such secu- commoner for misdemeanor without impeachrities. Under this sentence in a case at least ment of the Commons or the verdict of jury, mixed with privilege, Fitton, notwithstanding and of having so expressed the imprisonment a prorogation of parliament, which confessedly part of their sentence in both cases as to make terminates imprisonment by the House of Com- it imprisonment for life, that is, in Fitton's unmons in privilege cases, still continued in pri- less they should interpose to declare it terminson; and one William Carr, on his owning the ated, and in Carr's unless the king should please same libel and his having dispersed it, had been to determine it. . To some of these objections recently adjudged by the Lords to pay a fine of Mr. Omey did in effect advert in arguing Fit1,000l. and to imprisonment in the Fleet during ton's case. In remarking also upon the conthe king's pleasure, and to the pillory. Being sequence of such an exercise of criminal juris. both thus imprisoned by the Lords, Fitton and diction by the peers, he pointedly said, the Carr resorted by several petitions to the Com- jurisdiction of the Star-Chamber is now transmons for relief. A Committee was appointed formed into the House of Lords, but someupon Carr's petition as well as upon Fitton's. what in a nobler way! It did not occur to However no report appears to have been ever him to add, that the jurisdiction of the Starmade upon the petition of Carr, and what be- Chamber, thougli justly odious both for the came of his case is not mentioned, except that mode of trial and the excessive punishments it three years afterwards he published a relation had inflicted, and therefore wisely abolished, of it and of his sufferings, with a plea against was in some degree sanctioned by the statutes the jurisdiction of the House of Lords. But of the realm : but that it remained to explain, Fitton's petition was reported upon as fit for how the House of Lords had obtained the like solemn argument at the bar of the House of or any other sufficient sanction for exercising Commons as to the jurisdiction of the House of the same jurisdiction; and how it could be Lords, and was ordered to be argued accord- proper to tolerate that in an hereditary kind of ingly in the manner before mentioned. It ap- Star-Chamber, without the sanction of statute pears also, that the case was argued at the bar and without any other limitation than such as of the Commons by Fitton's counsel Mr. Offey, their own moderation should prescribe, which who said some strong things against the juris the legislature had so indignantly abolished, in diction of the Lords, but is reproached with hav- the case of a court sanctioned by statute and ing so closely borrowed from a prior argument not pretending to adjudge crime of a higher of the solicitor general Finch, afterwards lord order than misdemeanor." ehancellor Nottingham, at the bar of the Lords, It may be questioned, whether in answer though in what case is not mentioned, as to to what has been stated, it will be thought suffi. have induced the latter to leave the Commons. cient to alledge, in support of Mr. Justice BlackWhen the argument was over, the debate was stone's assertion, that the moderation, the upadjourned for a week. But the Journal of the rightness, the integrity, the regard to justice Commons is silent as to any further proceeding and to rational liberty, which now characterise upon the case. Probably this case became ab- the proceedings of our Houses of Parliament borbed in the consideration of the great case, and of our Courts afford us security, that similar which almost immediately followed, and proceedings will not hercalier occur. What ham

" this manner of putting the question would “ judges in this point, but we must be governed * produce such a contest. The House of “ by the eleven, and not by the single one. * Commons is the only judge of its own pro

“ It is a right inherent in all supreme courts ; ** cædinys : Holt differed from the other “ the House of Commons have always exer

“ cised it. Little nice objections of particular been, may be. Laws are provided, all the insti- “ words, and forms and ceremonies of execututions of society are established, not upon con- “tion, are not to be regarded in the acts of the fidence of the good which we hope men will do, “ House of Commons; it is our duty to prebut upon apprehension of the evil, which we know “ sume the orders of that House, and their exemen may do. True it is, there is no immediate “cution, are according to law. The Habeas cause for apprehension that men will be set Corpus in Murray's Case was at common upon the pillory and condemned to hard labour “ law. I concur entirely with my Lord Chief for life in a gaol, for counterfeiting a Lord's pro- " Justice." tection ; but that most powerful advocate for legitimate constitutional goverment, Mr. Burke

1771.-Oliver's Case. (Thoughts on the Causes of the Present Disconlents), has left us most wholesome warning, in the Court of Exchequer on the 27th of April

And in Mr. Alderman Oliver's Case, argued * That public liberty will be among us, as among 1771, the four judges, Chief Baron Parker, Mr. our ancestors, obnoxious to some person or other; and that opportunities will be furnished, Baron Smythe, Mr. Baron Adams, and Mr. fut attempting at least, some alteration to the Baron Perrot, unanimously acknowledged in prejudice of our constitution. These attempts

like manner the right of the House of Com.

mons to commit. wil naturally vary in their mode, according to times and circumstances. For ambition, though 1799.-Durnford and East's Reports, K. B. it has ever the same general views, has not at

Book 8, p. 314. all times the same means, nor the same particular objects. A great deal of the furniture of

Flower's Case.t wcient tyranny is worn to rags; the rest is entirely out of fashion. Besides, there are few House of Lords, for a libel on the bishop of

In the case of Flower, committed by the statesmen so very clumsy and awkward in their business as to fall into the identical snare which Landaff, on his being brought up to the King's

Bench upon Habeas Corpus. bas proved fatal to their predecessors. * When an arbitrary imposition is attempted entertained any doubts upon this subject, it

Lord Kenyon, Chief Justice, said—“ If we upon the subject, undoubtedly it will not bear

" would be unbecoming in on its forehead the name of Ship-money. There is no danger that an extension of the forest

“ speedy decision without looking through all laws should be the chosen mode of oppres

“ the cases cited by the defendant's counsel; son in this age. And when we hear any in

“ but not having any doubts, I think it best to stance of ministerial rapacity, to the prejudice

dispose of the case at once. The cases that

“ have been referred to are all collected in lord of the rights of private life, it will certainly not

“ Hale's Treatise on the Jurisdiction of the be the eraction of two hundred pullets from a

“ Lords' House of parliament, and that valuaFoman of faslion, for leave to lie with her own

“ ble Preface to it published by Mr. Hargrave; busband.” (Uxor Hugonis de Nevil dat Domino

« but in the whole of that publication the de Regi ducentas gallinas eò quòd possit jacere

“ fendant's counsel has not found one case apuna nocte cum Domino suo II ugone de Nevill. Plegii , Thomas de Sanford de centum gallinis

plicable to the present. This is one of the

plainest questions that ever was discussed in et ipse Hugo de centum gallinis reddendis

a court of law. Some things, however, have infra caput Quadragesimae ; et si que illarum fuerint ad tunc reddenda, reddantur ad proxi

“dropped from the learned counsel, that re

quire an answer :- First, it is said that the mum. Pasch. Rot. fin. 6. J. m. 8. dorso.] "Every age has it own manners and its po

Accordingly those who have been of the litics dependent upon them; and the same atlempts will not be made against a constitution of the court, have at the same time been the

most known devotion to the will and pleasure folly formed and matured, that were used to destroy it in the cradle, or to resist its growth the House of Commons,

most forward in asserting an high authority in

When they knew during its infancy.

who were to use that authority, and how it was " Against the being of parliament I am satisfied no desigus have been ever entertained to be employed, they thought it never could be

It must be always the wish ceive that it is strongly the interest of the court House of Commons who are entirely depento have some second cause interposed between dant upon him, should have every right of the the ministers and the people. The gentlemen uf the House of Commons have an interest

us to rush to a

carried too far. since the revolution. Every one must per- of an unconstitutional statesman, that an

people dependant upon their pleasure." equally strong in sustaining the part of that * See Mr. Hargrave's observations on this intermediate cause.

However they may hire case, 1 Jurid. Arg. and Coll. 17. out the usufruct of their voices, they oever will + See this case hereafter in this Collec. part with the fee and inheritance,


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