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“ people.

“ House of Lords is not a court of record: that “ that the House of Lords has not the power " the House of Lords when exercising a legis- of inflicting this punishment, from the cir, “ lative capacity is not a court of record is un- 6 cumstance of its not exercising it on all occa, “ doubtedly true; but when sitting in a judi-sions. When lord Shaftesbury's Case came “ cial capacity, as in the present case, it is a on, there were some persons who wished to - court of record. Then it was objected, that abridge the privileges of the House of Lords : “ the defendant was condemned without being “ but Mr. Serjeant Maynard was one of those « beard in his detence: but the warrant of who argued in support of their privileges ; 6 commitment furnishes an answer to that; “ and he surely was not capable of concurring “ by that it appears, that he was informed of " in any attempt to infringe the liberties of the " the complaint made against him,' &c. and

It has been said, however, thal “ having been heard as to what he had to say “though many instances are to be found in « in answer to the said complaint, &c. he was

“ which the House of Lords has in point of " adjudged guilty of a high breach of the “ fact exercised this power, whenever that “ privileges of the House,' &c. so that it power has been resisted it has been resisted « clearly appears that he was heard in his de- “ with effect; from whence it is inferred, that • fence, and had the same opportunity of call- “ the House of Lords has not the authority 5 ing witnesses, that every other defendant has “ which it assumes: but in this case I may mt in a court of justice. Then insinuations are “ avail myself of the same argument in favour s thrown out against the encroachments by the “ of its jurisdiction, for no case has been found « House of Lords on the liberties of the sub- “ where it has been holden to be illegal in the “ject: but the good subjects of this country House of Lords to fine and imprison a person “ feel themselves protected in their

liberties by “guilty of a breach of privilege. We were “ both Houses of parliament. Government “ bound to grant this Habeas Corpus; but "' rests in a great degree on public opinion ; having seen the return to it, we are bound to " and if ever the time shall come, when fac- “ remand the defendant to prison, because the " tious men will overturn the government of “ subject belongs to alind examen. There is “ the country, they will begin their work by nothing unconstitutional in the House of “ calumniating the courts of justice and both “Lords proceeding in this mode for a breach · Houses of parliament.

“ of privilege ; and unless we wish to assist in “ The ground of this proceeding is, that the “ the attempt that is made to overset the Law “ defendant has been guilty of a breach of pri

“ of Parliament and the constitution, we must ** vileges of the House, and a contempt of the “ remand the defendant." “ House. This claim of right to punish by Grose, J.-" This question is not new; it “ fine and imprisonment for such an offence, is “ has fiequently been considered in courts of “ not peculiar to the House of Lords; it is fre- “ law; and the principles discussed to-day, " quently exercised by this and other courts of " and the cases cited, were examined not many “ record, and that not merely for contempts “ years ago ; and the result is very ably stated

committed in the presence of the court: One " by Lord Chief Justice De Grey, in 3 Wils, s instance of which was that of Mr. Beard

" 199.

• When the House of Commons (anú “ more", under sheriff of Middlesex, for a con- " • the same may be said of the House of "tempt of the court in not executing part of “ Lorrls) adjudge any thing to be a contempt “ the sentence pronounced on Dr. Shebbeare. " or a breach of privilege, their adjudication “ And that case answers another objection, “ • is a conviction, and their commitment in “ strongly insisted on by the defendant's coun- consequence, is execution; and no other « sel here, that if the party accused can be pu- 6 "court can discharge or bail a person that is in “ nished in any other manner, this mode of “ execution by the judgment of any other “ trial cannot be resorted to; for there Mr. “ court.' In another passage he said " Every “ Beardmore might have been indicted, but “court must be sole judge of its own coti“ yet he was attached, exainined upon inter- “tempts.' And again, • The counsel at the o rogatories, and fined and imprisoned. Again“ o bar have not cited one case where any court

it is objected, that the House of Lords cannot “ of this Hall ever determined a matter of “ impose a fine for such an offence: but this “ privilege which did not come immediately « and other courts of record have the power of “ • before them.' 6 fining in this summary manner; and why “Having stated this, I think I need not add “ should not the House of Lords have the same “ more in the present case.” * power of imposing a fine for a contempt of Per Curiam.t “ their privileges? Then several instances were “ alluded to, where the House did not choose

Let the defendant be remanded. " to exercise this privilege, but directed prose* cutions to be instituted in the courts of law.

+ Mr. Justice Lawrence was not in court, “ The same observations might equally be being indisposed; and Mr. Justice Le Blane

, made on the proceedings of this court, who having attended at the Guildhall sittings for " have sometimes directed indictments to be lord Kenyon, and not returning till the argu“ preferred. We are not therefore to conclude

ment was closed; gave no opinion. * Vide 2 Burr. 792.

APPENDIX (E.)

Michaelmas Term, 9 Geo. 1. CASES of Commitments for Contempt by John Bolton, clerk, for contemptnous words

A Writ of Attachment was granted against Courts of Justice.

respecting the warrants of the Lord Chief ANALOGY.

Justice of the Court of King's-bench, at a meetIn Michaelmas Term, 18 Edward 3. ing of his parishioners in the Church-yard. John De Northampton, an attorney of the

Easter Term, 9 Geo. 1. Court of King's-bench, confessing himself guilty of writing a letter respecting the judges Church-yard, publishing a pamphlet

, written

John Wyatt, a bookseller in St. Paul's and court of King's-bench, which letter was by Dr. Conyers Middleton, in the dedication of adjudged by the court to contain no trath in it, which to the vice-chancellor of Cambridge, ant to be calculated to excite the king's indig were some passages reflecting upon a proceednation against the court and the judges, to the ing of the Court of King's-bench; the court sandal of the said court and judges, was committed to the marshal, and ordered to find se

granted a rule against Wyatt, to shew cause curities for his good behaviour.—3 Inst. 174.

why a Writ of Attachment should not issue

against him for his contempt; and Wyatt Hilary Term, 11 Ann. A Writ of Attachment was issued against field had employed him

to sell the pamphlet,

having made an affidavit that Cornelius CrownThomas Lawson, for speaking disrespectful and he having charged Dr. Conyers Middleton words of the Courts of Queen's-bench, upon with being the author of it, Crownfield was dishis being served with a rule of that Court.

charged upon payment of the costs, and a Writ Hilary, 12 Ann. A Writ of Attachment was granted against yers Middleton, who, in the next term, gave

of Attachment was granted against Dr. ConEdward Hendale, for speaking disrespectful bail to answer the contempt; he was afterwords of the Lord Chief Justice of the Court wards examined upon interrogatories, and upon of Queen's-bench, and his warrant.

the report of the king's coroner and attorney Trinity Term, 5 Geo. 1. : A Writ of Attachment against

he was adjudged to be in contempt, and was Jones,

committed to the marshal in execution quousfor treating the process of the Court of King’s- que, &c. and it was referred to the master to bench coatemptuously; and there being an intimation that he relied on the assistance of

tax the prosecutor's costs. his fellow-workmen to rescue him, the Court Middleton was sentenced to pay a fine of 50l.

It is stated in Fortescue's reports that Dr. sent for the sheriff of Middlesex into Court, and to give security for a year ; but no rule

for and ordered him to take a sufficient force.-1 such sentence has at present been found ; and Strange 185. Michaelmas Term, 6 Geo. 1.

Dr. Colebatch having received such a sentence, A Writ of Attachment was granted to Richard is possible that this sentence may, by mistake,

for a similar offence, in the preceding term, it Lamb, for contemptuous words concerning a warrant from a judge of the Court of King's

have been applied to Dr. Middleton. bench.

Michaelmas Term, 5 Geo. 2.
Easter Term, 6 Geo. 1.

The Court_granted a Writ of Attachment Wilkins having confessed himself against lady Lawley, for a contempt in pubguilty of publishing a libel upon the Court of lishing a paper reflecting upon the proceedings King's-bench, the Court made a rule com- of the Court; and she having been examined mitting him to the marshal.

upon interrogatories, was in Easter Term folThe next term Wilkin having made an affi- lowing reported by the officer of the Court to darit charging doctor Colebatch with being the be in contempt, and was committed to the anthor of the libel, was sentenced to pay a fine marshal. of 31. and to give security for his good be- And in Trinity Term 6 Geo. 2, she was haviour for a year.

brought into Court, and a rule made, stating Hilary Term, 7 Geo. 1.

that “ fecit submissionem suam petivit veniam An Attachment was granted against John “ de curia ;" and thereupoli she was fined five Barber, esq. for contemptuous words of the marks and discharged. Court of King's-bench, in a speech to the Mark Halpenn, the husband of Lady Lawley, common council of London.- 1 Strange, 443. was also examined upon interrogatories, for Hilary Term, 9 Geo. 1.

publishing the same libel. 2 Barnardiston ; Doctor Colebatch having been examined | K.'s B. 48. upon interrogatories, for contempt in publishing a libel, the interrogatories and answer were Extract from Atkyns's Reports, Book 2, p. 469. referred to the king's coroner and attorney ; First Seal after Michaelmas Term, and

Dec. 3, 1742. In Easter Term, 9 Geo. 1. Dr. Colebatch, being in the custody of the A motion against the printer of The Chammarshal, was brought into Court, and was sen- pion, and the printer of the St. James's Eventenced to pay a fine of 50l. and to give security ing Post ; that the former, who is already in for his good behaviour for a year, and was the Fleet, may be committed close prisoner, kummitted to the marshal in execution. and that the other, who is at large, may be

VOL. VIII.

committed to the Fleet, for publishing a libel There may be likewise a contempt of this against Mr. Hall and Mr. Garden, executors of Court, in abusing parties who are concerned in John Roach, esq. late major of the garrison of causes here. Fort St. George in the East Indies, and for There may also be a contempt of this Court, reflecting likewise upon governor Mackay, in prejudicing mankind against persons before governor Pitt, and others, taxing them with the cause is heard. turning affidavit-men, &c. io the cause now de- There cannot be any thing of greater consepending in this court; and insisting that the quence than to keep the streams of justice publishing such a paper is a high contempt of clear and pure, that parties may proceed with this Court, for which they ought to be com- safety both to themselves and their characters. mitted.

The case of Raikes, the printer of the Lord Hardwicke, Lord Chancellor, Gloucester Journal, who published a libel in Nothing is more incumbent upon courts of one of the Journals against the commissioners! justice than to preserve their proceedings from of Charitable Uses at Burford, calling his adverbeing misrepresented; nor is there any thing tisement, A Hue and Cry after a Commission of more pernicious consequence, than to preju- of Charitable Uses, was of the same kind as dice the minds of the public against persons this, and the Court in that case committed him. concerned as parties in causes, before the cause There are several other cases of this kind : is finally heard.* It has always been my opi- one strong instance, where there was nothing nion, as well as the opinion of those who have reflecting upon the court, in the case of cap. ! sat here before me, that such a proceeding tain Perry, who printed his brief before the ought to be discountenanced.

cause came on ; the offence did not consist in But to be sure Mr. Solicitor-General has put the printing, for any man may give a printed it upon the right footing, that notwithstanding brief as well as a written one to counsel ; but this should be a libel, yet unless it is a con- the contempt of tbis Court was prejudicing the tempt of the Court, I have no cognizance of it; world with regard to the merits of the cause for whether it is a libel against the public, or before it was heard. private persons, the only method is to proceed Upon the whole, there is no doubt but this at law,

is a contempt of the Court. The defendants' counsel have endeavoured With regard to Mrs. Read, the publisher of two things-1st, to shew this paper does not Saint James's Evening Post, by way of allecontain defamatory matter; 2dly, if it does, viation, it is said, that she did not know the yet there is no abuse upon the proceedings of nature of the paper; and that printing papers this Court: and therefore there is no room for and pamphlets is a trade, and what she gets me to interpose.

her livelihood by: Now take the whole together, though the But though it is true it is a trade, yet they letter is artfully penned, there can remain no must take care to do it with prudence and caudoubt in every common reader at a coffee- tion; for if they print any thing that is libel, house but this is a defamatory libel.

lous, it is no excuse to say that the printer had It is plain therefore who is meant; and as a no knowledge of the contents, and was entirely jury, if this fact was before them, could make ignorant of its being libellous: and so is the no doubt, so, as I am a judge of facts as well as rule of law, and I will always adhere to the law, I can make none.

strict rules of law in these cases. I night mention several strong cases, where Therefore Mrs. Read must be committed to even feigned names have been construed a the Fleet according to the common order of libel upon those persons who were really meant the court upon contempts. to be libelled.

But as to Mr. Huggonson, who is already a Upon the whole, as to the libellous part, if so prisoner in the Fleet, I do not think this any far there should remain any doubt whether motive for compassion; because these persons the executors are meant, it is clear beyond all generally take the advantage of their being contradiction upon the last paragraph, in which prisoners, to print any libellous or defamatory are these words : " This case ought to be a matter which is brought to them, withou “ warning to all fathers to take care with scruple or hesitation. ” whom they trust their children and their for- If these printers had disclosed the name o " tunes, lest their own characters, their widows the person who brought this paper to them S and their children be aspersed, and their for- there might have been something said in miti “ tunes squandered away in law-suits.” gation of their offence; but as they think pro

And likewise, though not in so strong a de- per to conceal it, I must order Mrs. Read to b gree, the words “ turned affidavit-men,” is a committed to the Fleet, and Huggonson to b libel against those gentlemen who have made taken into close custody of the warden of the them.

Fleet. There are three different sorts of contempt :

One kind of contempt is, scandalizing the 13th Vesey, jun. page 237.-Lord Erskine Court itself.

Lord Chancellor. Dec. 20, 23, 1806.

Exparte Jones. • Vide Baker v, Hart, post. 483, Mrs. Far- The object of this petition was to remove th qey's Case, 2 Ves, 520,

Committee of a lunatic, and to bring before u Lord Chancellor an alleged contempt by the be traversed, and the party admitting the act committee and his wife and other persons, as cannot deny the motive. The maxim, Actus the authors printers and publishers of a non facit reom, nisi mens sit rea,' cannot be pamphlet, with an address to the Lord Chan- made applicable to this subject in the ordinary cellor by way of dedication, reflecting upon the administrations of justice, as the effect would conduct of the petitioner and other acting in be that the ends of justice would be defeated by the management of the affairs of the lunatic contrivance. But upon the satisfactory acunder orders made in pursuance of the trusts count given by three of these printers, though of a will, the affidavit representing the conduct undoubtedly under a criminal proceeding, they of the committee and his wife intruding into the would be in mercy in a case of contempt. master's office, and interrupting him, not only Though I have the jurisdiction, I shall not use in the business of this particular lunacy, but all it. The other printer appears upon the affidaother business. The wife of the committee vits under different circumstances. Having arowed herself to be the author of the pamphlet, made the observation, that this pamphlet ought allezing the innocence of her husband. not to be printed, being totally uninteresting to

The Solicitor-General (Sir Samuel Romilly) the public, yet he does print'it; and though and Mr. Hart, in support of the petition, were the locus penitentia was afforded to him, and stopped by the Lord Chancellor, who called on he was called upon not to print any more, the counsel against it.

he proceeded until he had notice of this peMr. Plowden resisted the petition, contend-tition. ing that the petitioners had a remedy at law. Let the Committee, and his wife, and the

Lord Erskine: (The Lord Chancellor.) As printer to whom I have last alluded, be comto remedy at law, the subject of this applica- mitted to the Fleet Prison. Dismiss the Comtion is not the libel against the petitioner.— mittee from that office ; and direct a reference The case of Roach v.Garvan[2Atk.469] and ano- to the master, as to the appointment of another ther, there mentioned, were cases of constructive Committee. contempt, depending upon the inference of an intention to obstruct the course of justice. In Extracts from Sir Eardley Wilmot's Opinions this instance, that is not left to conjecture; and

and Judgments ; p. 253. whatever may be said as to a constructive contempt through the medium of a libel against

Hilary Term, 5 Geo. 3. 1765. persons engaged in controversy in the court, it

The KING O. ALMON. nerer has been nor can be denied, that a publication not only with an obvious tendency but ceeding by attachment is an invasion upon the

“ It has been argued that the mode of prox with the design to obstruct the ordinary course ancient simplicity of the law; that it took its of justice, is a very high contempt.- Lord rise from the statute of Westminster, ch. 2; Hardwicke considered persons concerned in and Gilbert's History of the Practice of the the business of the court as being under the Court of Common Pleas, p. 20, in the first ediprotection of the court, and not to be driven to tion, is cited to prove that position. And it is other remedies against libels upon them in said, that act only applies to persons resisting that respect. But without considering whether this is or is not a libel upon the petitioner, what process; and though this mode of proceeding excuse can be alleged for the whole tenor of is very, proper to remove obstructions to the

execution of process, or to any contumelious this book, and introduced by this declaration of the purpose which the author intended it to an- | treatment of it, or to any contempt to the auswer? It might be sufficient to say of the book thority of the court, yet that papers reflecting itself, stripped of the dedication, that it could merely upon the qualities of judges themselves, be published with no other intention than to that judges have proper remedies to recover a

are not the proper objects of an attachment; obstruct the duties cast upon the petitioner, and satisfaction for such reflections, by actions of to bring into contempt the orders that had been made. But upon the dedication this is not a

“Scandalum Magnatum ;” and that in the constructive contempt. It is not left to infer- case of a peer, the House of Lords may be apence. In this dedication the object is avowed, plied to for a breach of privilege: That such

may by defaming the proceedings of the court

be brought to punishment by instanding upon its rules and orders, and interesting the public, prejudiced in favour of the * This opinion was not delivered in court, author by her own partial representation, to the prosecution having been dropped in conseprocure a different species of judgment from quence, it is supposed, of the resiguation of the that which would be administered in the ordi- then Attorney General; but after the death of bary course, and by flattering the judge, to this eminent and very learned Chief Justice, tain the source of justice. This pamphlet has was found in his own hand-writing among his been sent to me.

papers by his son, who published it in Memok's As to the printers, lord Hardwicke observes, of his Lite, p. 243. The occasion of it was a it is no excuse that the printer was ignorant of motion in the Court of King's-Bench, for an the contents. Their intention may have been attachment against Mr. Almon, for a contempt innoeent; but, as lord Mansfield had said, the in publishing a libel upon the Court, and upon, fact whence the illegal motive is inferred must the Cbief Justice.

dictment or information, that there are but ment is read, it is impossible to draw the com few instances of this sort upon libels on courts mencement of such a proceeding out of it; it or judges; that the Common Pleas lately re- empowers the sheriff to imprison persons refused to do it; that libels of this kind have sisting process, but has no more to do with been prosecuted by actions and indictment ; and that attachments ought not to be extended pleasure, but that the offender must afterwards to libels of this nature, because judges would be brought in, to answer by due process of law, be determining in their own cause ; and that it and receive sentence of punishment from a is more proper for a jury to determine quo animo jury. For, though the stat. Westm. 2, c. 39, such libels were published.

declares, That such person as shall be convicted “ As to the origin of attachments, I think of resisting the Sheriff, shall be punished at they did not take their rise from the statute of the king's pleasure, yet my lord Coke, in his Westminster, ch. 2; the passage out of Gil- exposition of these words, says, “That is, acbert does not prove it; but he only says, “the cording to that which shall be, upon due proW origin of commitments for contempt, seems' 'ceeding, adjudged coram rege in the King's “ to be derived from this statute;" but read Court of Justice ; for no man can be punishthe paragraph through, the end contradicts the ed hy absolute power, but secundum legem, es seeming' mentioned in the beginning of it; consuetudinem Angliæ, as hath been said be. and shews, that it was a part of the law of the . fore, in the exposition of Magna Charta, and land to commit for contempt, confirmed by this elsewhere hath been often said.' (2 Inst. statute. And indeed when that act of Parlia- 454.) If a Judge could imprison for a libel,

he must necessarily become what our law never * Thus Mich. 8 Eliz. Rot. 1, Walsh was in- warrants, that is, a Judge in his own cause ; dicted for scandalising vne sir Robert Catling, and if he could imprison during his pleasure, and the Court of Queen's-Bench, by saying, he would be possessed of an absolute power, “ My Lord Chief Justice is incensed against which our constitution does not allow. The me; I cannot have justice, nor can I be heard, fact is, that great and good men have, at all for it is made a court of conscience." See the times, been very tender of the liberty of the Attorney General's Argument in the Case of subject. Chief Baron Gilbert says, that the City of London, Quo lurrunto, a. D. 1683, When the Common Pleas proceeded on Clauinfra.

sum fregit, the defendant was under the same + On this subject the following passage taken disadvantages as when he was arrested on from Mr. Evans's letter to sir Samuel Romilly a Latitat." Upon which the annotator (who is deserving attention :

was well acquainted with the laws and consti“ As a great deal has been urged in favour tution of his country,) observes— Here the of the privilege of the Commons to imprison Chief Baron candidly allows, that the arrest for a Libel, by way of analogy to the practice . by Clausum fregit in the Common Pleas, and of Courts of Justice, which, it is said, may • by the Latitat in the King's Bench, did lay commit for contempts, I shall beg leave to add

• the defendant under disadvantages. If the a few words on that part of the subject. Lord • Chief Baron had said, “under unwarrantable Chief Baron Gilbert has stated, ihat, . It is oppressions in open violation of King John's 6 one part of the law of the land to commit for “Great Charter, not only by subverting and

contempts, and confirmed by the stat.Westm. “ perverting the ancient process of the law in 2, c. 39.” (Hist. of Com. Pleas, p. 25)

.trespass, but also by an arbitrary and bar. Now, I must declare, that after looking into " " barous abuse of special bail : If the Chief that statute, I cannot find any thing to war- "Baron had stigmatized this process by Latitat rant his assertion. All that the statute says, is, " with the seemingly harsh, but richly merited that many great men (who in those days bad terms above mentioned, as sir Orlando castles, fortresses, and liberties, wherein they Bridgeman, Chief Justice of the Commor used to secure themselves) had resisted the . Pleas did, when the Latitat was first introSheriff in executing the King's writs ; which, duced into the King's Bench, he would percreating great inconvenience, the Sheriff is haps have done no more than an honest indig ordered to remove all obstructions to the execu- nation, at the innovation, would warrant. tion of the process. The act, therefore, only (Hist. of Com. Pleas, 3d. ed. p. 183.

) As for applies to persons resisting the King's writs, discretion, I am for investing the Judges with and does not say a word about any other con- as little as possible. We know, that some tempt. I must confess, that I cannot under- men view matters in a different light from stand how Courts of Justice can imprison for that in which they are seen by others. The a libel, without infringing upon Magna Charta. discretion of the Judge,' says Mr. Gibbon All that they can do, in a constitutional man- very truly), is the first engine of tyranny der, is, in my opinion, to imprison such per- the laws of a free people should foresee and sons as commit contempts in facie curiæ; or, determine every question that may probably in other words, who occasion an immediate ob- arise in the exercise of power and the trans. struction to the administration of justice, and, actions of industry.'. (Decline and Fall, &e, as such, are disturbers of the peace. But, v. 8. p. 111.)” cven in those cases, I conceive that the Courts To this I will add the memorable words cannot constitutionally imprison during their which were used by lord Camden in the case

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