“occasion the utmost confusion, if every court
"of this Hall should have power to examine
"the commitments of the other courts of the
"Hall for contempts; so that the judgment"
"and commitment of each respective court as
"to contempts, must be final and without con-
*trol. It is a confidence that may, with per-
"fect safety and security, be reposed in the
"judges and the Houses of Parliament. The

Jury upon the whole matter, including of
course the question of libel or no libel, leaving
them at the same time to found their verdicts
upon such whole matter, so brought before
them as in all other criminal cases. The best
answer to the apprehensions of the great and
eminent Chief Justice, regarding this course of
proceeding, as then contended for by Mr. Er-
skine, and now established by the Libel Act, is
the experience of seventeen years since that act
passed.

"legislature since the revolution (see 9 and 10 · "W. 3, c. 15,) have created many new con"tempts. The objections which are brought, of abusive consequences, prove too much, be-"cause they are applicable to all courts of "dernier resort: et ab abusu ad usum non"valent consequentia,' is a maxim of law as "well as of logic. General convenience must always outweigh partial inconvenience; even of divers mischiefs both of state and commonwealth."

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It seems generally to happen, that persons, who either possess or lay claim to power of any, kind, are strongly disposed to be of opinion that they may be safely entrusted with such power. Thus in our own history, to omit the various instances of claims on the part of the 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 guilty even of the most malignant slander upon the vast power which they so mischievously private men; to connect his cause with the and oppressively assumed in the ancient Court 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 them Guilty upon the fact of publication; shutting members of the House of Commons, to comout 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 public 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 upon 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, &c. their consciences (except in matters of abstract Oxford 1766 vol. 1. p. 157 et seq.); that archlaw), to follow his opinion, and instead of that bishop Laud and his coadjutors thought they uncertainty anticipated by lord Mansfield, the might safely be intrusted 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 opinion, than when Juries were instru- trusted 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-azte, vol. 6, p. 951, 999, and the notes to those lie libels to the judgment and consideration of the people. This reformed state of the law, as it regards the liberty of the press, is now so universally acknowledged, that the highest magistrates have declared in the House of Lords, that no new laws are necessary either to support the state, or protect the people."

Sir Edward Coke (Proceedings and Debates of the House of Commons, in 1620 and 1621, vol. 2, p. 109) predicted that" if the mittimus of the Privy Council must contain the cause of commitment, it would hinder the finding out

cases;) and that Jefferies, Crew, Cartwright, Wright, Herbert, and Jenner, thought they m'ght be safely intrusted with the power which as Commisioners of Ecclesiastical Affairs' they employed for the purpose of subverting the protestant religion. It is to be regretted, that the learned judge did not adduce any proofs of his assertion, that, "this confidence may with perfect safety and security be reposed in the Judges and the Houses of Parliament;" for indeed the truth of the assertion is by no means self-evident. It is sufficiently obvious that the

"supposing (which in my conscience, I am "far from supposing) that in the present case "the House has abused its power. I know,

"and am sure that the House of Commons “are both able and well inclined to do justice. "How preposterous is the present murmur

Indeed the House of Commons has often manifested a very laudable jealousy of illegal commitments by others. While the statute, 16 Car. 1, c. 10, was in its passage, that House resolved, (see lord Camden's judgment in the Case of Entick against Carrington and others, A. D. 1765, in this Collection), "that the body of the Lords of the Council, nor any one of them in particular, as a privy counsellor, has any power to imprison any treeborn subject, except in such cases as they are authorized by the statutes of the realm.""It is all one," says lord Hale (Jurisdiction of the Lords House or Parliament, p. 109), “to make a law, and to have an authoritative power to judge according to that which the judge thinks should be law, though in truth there be no law extant for it."

How far the conclusion against the truth of the learned judge's dictum, to which the pre ceding considerations appear to lead, has been fortified by experience I cannot undertake to

so extensively as that would require into the precedents upon the subject: but if the exercise of this discretionary power shall be found to have been at all analogous to the exercise of other sorts of uncontrouled discretionary power as recorded in our history, the precedents will certainly not corroborate sir William Blackstone's gratuitous assertion. I will mention a few cases. And first au action of trespass brought in parliament in 18 Ed. 1.

cases in which discretionary uncontrouled power is most likely to be abused, and in which consequently it is most dangerous, are those in which the interests or the personal feelings of the party exercising such power are concerned. Now, if it be so indisputable, as the learned judge appears to have thought it was, that each of the Houses of Parliament and that courts may safely be intrusted with a discretionary uncontrouled power of imprisonment for whatever it may please them respectively to adjudge to be a contempt towards themselves, in most of which cases their personal feelings at least will be concerned; it may not perhaps be found very easy to shew why they might not a fortiori be still more safely intrusted with the like discretionary uncontrouled power of im-fit prisonment in other cases, in which their interests and their feelings are not concerned. But I apprehend the learned judge would scarcely have maintained that in such other cases they might be safely intrusted with discretionary uncontrouled power of imprison-affirin, because I have not been able to examine ment: seeing that, in the first volume of his Commentaries, p. 135, when illustrating "the great importance to the public of the preservation of personal liberty," he says, and with great truth, that "If once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, there would soon be an end of all other rights and immunities." Yet indeed it is very easily discoverable that if a vote or an adjudication of contempt by a House of Parliament or a court be unexaminable elsewhere, and if the power of imprisonment upon such vote or adjudication be discretionary and uncontrouled; each House of Parliament and each court possesses a discretionary and uncontrouled power of imprisonment for every action and every omission of a man's life; nay, for the bare unproved imputation of any action or omission; nay even without the imputation of any specified act or omission. "If" as Mr. Hargrave (1 Jurid. Arg. and Cell. 16) very forcibly states it, "the doctrine of contempts be thus wide; if the House of Lords or Commons or the Court of Chancery, or any of the great Courts of Westminster Hall, may construe what they please into contempts, and may under that denomination without trial by jury convict all persons of crime, and have also an indefinite power of punishing by fine and imprisonment, and if all this when done be thus unappealable and thus unexaminable, what is there but their own wisdom and moderation, and the danger of abusing so arbitrary a power, to prevent the House of Lords or the House of Commons, or any court of Westminster Hall, under shelter of the law of contempts, from practising all the monstrous tyranny which first disgraced and at length overwhelmed the Star-Chamber ?"

"In an action of trespass brought in parliament in 18 Ed. 1. (as was then the practice) by the king, the king's steward (of his household) Peter de Chanet, the king's marshal (of his household) Walter de Fanecourt, the earl of Cornwall and the abbot of Westminster against the prior of the Holy Trinity in London, and Bogo de Clare, (or, as the record expresses it, in which the two latter persons were attached to answer the five former) for that the said prior served an ecclesiastical citation upon the earl of Cornwall as he was going through Westminster Hall to attend the parliament according to the writ of summons he had received, by which citation the earl was commanded to appear on such a day at such a place before the archbishop of Canterbury, and the said Bogo de Clare procured the said prior to serve the said citation, which serving the said citation is laid to have been in contempt of the lord the king, and to his disgrace of 10,000/.; also to have been to the prejudice of the ecclesiastical franchise of the abbot of Westminster granted him by the court of Rome, by which Westminster Hall, as being within the jurisdiction of the abbot of Westminster, is exempted from all jurisdiction episcopal or archiepiscopal, and to the abbot's damage thereby of 1,000l. also to have been to the prejudice of the office of the steward and marshal (of the king's household),

"and powers are the privileges and powers of "the people. There is a great fallacy in my "brother Glynn's whole argument, when he "makes the question to be, Whether the

"House have acted according to their right or "not? Can any good man think of involving "the judges in a contest with either House of "parliament, or with one another? And yet brought the two Houses to a direct issue on one great branch of the jurisdiction claimed by the Lords but denied by the Commons: or perhaps the Commons thought this case of Fitton and that of Carr too much mixed with contempt and breach of privilege to be convenient cases to make their stand upon. However these two cases should not be forgotten. Either they were cases of breach of privilege and contempt, or they were not. If they were, the continuance of imprisonment after the prorogation of parliament, the fining, and every other part of the sentence in both cases, became disputable: for it may be asked, how on breach of privilege are the Lords warranted to do more than can be done by the Commons in a like case? On the other hand, if they were not cases of privilege

like kind; and amongst the Committee were named, solicitor general Finch, afterwards lord chancellor Nottingham, Mr. Serjeant Maynard, Mr. Vaughan, afterwards lord chief justice, and Mr. Prynne; and the three latter were desired to take special care in the business. What was the precise nature of this case of Mr. Fitton, is not stated in the Journal of the Commons, or in the printed account of the debate. But from various entries in the Journal of the Lords the substance of the case appears on the whole to have been to this effect. Mr. Fitton and three others had been formerly proceeded against before the Lords for contriving and publishing a libel upon lord Gerrard of Brandon; and the Lords in July 1663 had sentenced Fitton in a fine of 500l. to imprisonment 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 belia- 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. Offley did in effect advert in arguing Fit1,000. 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 jurisboth 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 trans. mons 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, though 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. Offley, 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, though in what case is not mentioned, as to have induced the latter to leave the Commons. When the argument was over, the debate was adjourned for a week. But the Journal of the Commons is silent as to any further proceeding upon the case. Probably this case became absorbed in the consideration of the great case, which almost immediately followed, and

It may be questioned, whether in answer to what has been stated, it will be thought sufficient to alledge, in support of Mr. Justice Black stone's assertion, that the moderation, the uprightness, the integrity, the regard to justice and to rational liberty, which now characterise the proceedings of our Houses of Parliament and of our Courts afford us security that similar proceedings will not hereafter occur. What hap