66

6

"that the House of Lords has not the power "of inflicting this punishment, from the cir "cumstance of its not exercising it on all occa

66

"House of Lords is not a court of record: that "the House of Lords when exercising a legis"lative capacity is not a court of record is un"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 heard in his defence: but the warrant of "who argued in support of their privileges; "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 "people. It has been said, however, that "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 "ing witnesses, that every other defendant has "which it assumes: but in this case I may in a court of justice. Then insinuations are "avail myself of the same argument in favour "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 "the country, they will begin their work by "calumniating the courts of justice and both Houses of parliament.

66 6

Grose, J.-"This question is not new; it "has frequently been considered in courts of "law; and the principles discussed to-day, " and the cases cited, were examined not many "years ago; and the result is very ably stated by Lord Chief Justice De Grey, in 3 Wils 199. When the House of Commons (and "the same may be said of the House of "Lords) adjudge any thing to be a contempt or a breach of privilege, their adjudication is a conviction, and their commitment in consequence, is execution; and no other court can discharge or bail a person that is in "execution by the judgment of any other ""court.' In another passage he said Every "court must be sole judge of its own con"tempts.' And again, The counsel at the "bar have not cited one case where any court "of this Hall ever determined a matter of privilege which did not come immediately ""before them.'

66 6

"subject belongs to aliud examen.' There is "nothing unconstitutional in the House of "Lords proceeding in this mode for a breach "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 "fine and imprisonment for such an offence, is "not peculiar to the House of Lords; it is fre"quently exercised by this and other courts of "record, and that not merely for contempts "committed in the presence of the court: One "instance of which was that of Mr. Beard-" "more*, under sheriff of Middlesex, for a con"tempt of the court in not executing part of "the sentence pronounced on Dr. Shebbeare. "And that case answers another objection," "strongly insisted on by the defendant's coun"sel here, that if the party accused can be pu"nished in any other manner, this mode of "trial cannot be resorted to; for there Mr. "Beardmore might have been indicted, but "yet he was attached, examined upon inter"rogatories, and fined and imprisoned. Again "it is objected, that the House of Lords cannot "impose a fine for such an offence: but this". "and other courts of record have the power of "fining in this summary manner; and why "should not the House of Lords have the same "power of imposing a fine for a contempt of "their privileges? Then several instances were "alluded to, where the House did not choose "to exercise this privilege, but directed prose"cutions to be instituted in the courts of law. The same observations might equally be "made on the proceedings of this court, who "have sometimes directed indictments to be "preferred. We are not therefore to conclude

Vide 2 Burr. 792.

"Having stated this, I think I need not add "more in the present case." Per Curiam.t

Let the defendant be remanded.

being indisposed; and Mr. Justice Le Blanc, + Mr. Justice Lawrence was not in court, having attended at the Guildhall sittings for lord Kenyon, and not returning till the argument was closed; gave no opinion.

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.
ANALOGY.

In Michaelmas Term, 18 Edward 3. John De Northampton, an attorney of the Court of King's-bench, confessing himself guilty of writing a letter respecting the judges and court of King's-bench, which letter was adjudged by the court to contain no truth in it, and to be calculated to excite the king's indignation against the court and the judges, to the scandal of the said court and judges, was comfitted to the marshal, and ordered to find securities for his good behaviour.-3 Inst. 174.

Hilary Term, 11 Ann.

A Writ of Attachment was issued against Thomas Lawson, for speaking disrespectful words of the Courts of Queen's-bench, upon his being served with a rule of that Court.

respecting the warrants of the Lord Chief Justice of the Court of King's-bench, at a meeting of his parishioners in the Church-yard.

Easter Term, 9 Geo. 1.

John Wyatt, a bookseller in St. Paul's Church-yard, publishing a pamphlet, written by Dr. Conyers Middleton, in the dedication of which to the vice-chancellor of Cambridge, were some passages reflecting upon a proceeding of the Court of King's-bench; the Court granted a rule against Wyatt, to shew cause why a Writ of Attachment should not issue against him for his contempt; and Wyatt having made an affidavit that Cornelius Crownfield had employed him to sell the pamphlet, and he having charged Dr. Conyers Middleton with being the author of it, Crownfield was discharged upon payment of the costs, and a Writ of Attachment was granted against Dr. Conyers Middleton, who, in the next term, gave bail to answer the contempt; he was afterwards examined upon interrogatories, and upon the report of the king's coroner and attorney he was adjudged to be in contempt, and was 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 contemptuously; and there being an intimation that he relied on the assistance of his fellow-workmen to rescue him, the Court sent for the sheriff of Middlesex into Court,

Hilary, 12 Ann.

A Writ of Attachment was granted against Edward Hendale, for speaking disrespectful words of the Lord Chief Justice of the Court of Queen's-bench, and his warrant.

Trinity Term, 5 Geo. 1.

A Writ of Attachment against

Jones,

and ordered him to take a sufficient force.-1 Strange 185.

Michaelmas Term, 6 Geo. 1.

A Writ of Attachment was granted to Richard Lamb, for contemptuous words concerning a warrant from a judge of the Court of King's

bench.

Easter Term, 6 Geo. 1.

-Wilkins having confessed himself guilty of publishing a libel upon the Court of King's-bench, the Court made a rule committing him to the marshal.

The next term Wilkin having made an affidavit charging doctor Colebatch with being the author of the libel, was sentenced to pay a fine of 5. and to give security for his good behaviour for a year.

Hilary Term, 7 Geo. 1.

An Attachment was granted against John Barber, esq. for contemptuous words of the Court of King's-bench, in a speech to the common council of London.-1 Strange, 443. Hilary Term, 9 Geo. 1.

Doctor Colebatch having been examined upon interrogatories, for contempt in publishing a libel, the interrogatories and answer were referred to the king's coroner and attorney;

and

In Easter Term, 9 Geo. 1. Dr. Colebatch, being in the custody of the marshal, was brought into Court, and was sentenced to pay a fine of 50l. and to give security for his good behaviour for a year, and was committed to the marshal in execution.

VOL. VIII.

tax the prosecutor's costs.

It is stated in Fortescue's reports that Dr. Middleton was sentenced to pay a fine of 501. and to give security for a year; but no rule for such sentence has at present been found; and Dr. Colebatch having received such a sentence, for a similar offence, in the preceding term, it is possible that this sentence may, by mistake, have been applied to Dr. Middleton.

Michaelmas Term, 5 Geo. 2.

The Court granted a Writ of Attachment against lady Lawley, for a contempt in publishing a paper reflecting upon the proceedings of the Court; and she having been examined upon interrogatories, was in Easter Term following reported by the officer of the Court to be in contempt, and was committed to the marshal.

And in Trinity Term 6 Geo. 2, she was brought into Court, and a rule made, stating that "fecit submissionem suam petivit veniam "de curia ;" and thereupon she was fined five marks and discharged.

Mark Halpenn, the husband of Lady Lawley, was also examined upon interrogatories, for publishing the same libel. 2 Barnardiston K.'s B. 45.

Extract from Atkyns's Reports, Book 2, p. 469.

First Seal after Michaelmas Term,
Dec. 3, 1742.

A motion against the printer of The Champion, and the printer of the St. James's Evening Post; that the former, who is already in the Fleet, may be committed close prisoner, and that the other, who is at large, may be E

committed to the Fleet, for publishing a libel against Mr. Hall and Mr. Garden, executors of John Roach, esq. late major of the garrison of Fort St. George in the East Indies, and for reflecting likewise upon governor Mackay, governor Pitt, and others, taxing them with turning affidavit-men, &c. in the cause now depending in this court; and insisting that the publishing such a paper is a high contempt of this Court, for which they ought to be com

There may be likewise a contempt of this Court, in abusing parties who are concerned in causes here.

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

* Vide Baker v, Hart, post. 488, Mrs. FarJey's Case, 2 Ves. 520,

Lord Chancellor an alleged contempt by the committee and his wife and other persons, as the authors printers and publishers of a pamphlet, with an address to the Lord Chancellor by way of dedication, reflecting upon the conduct of the petitioner and other acting in the management of the affairs of the lunatic under orders made in pursuance of the trusts of a will, the affidavit representing the conduct of the committee and his wife intruding into the master's office, and interrupting him, not only in the business of this particular lunacy, but all other business. The wife of the committee avowed herself to be the author of the pamphlet, alleging the innocence of her husband.

The Solicitor-General (Sir Samuel Romilly) and Mr. Hart, in support of the petition, were stopped by the Lord Chancellor, who called on the counsel against it.

be traversed, and the party admitting the act cannot deny the motive.-The maxim, Actus non facit reum, nisi mens sit rea,' cannot be made applicable to this subject in the ordinary administrations of justice, as the effect would be that the ends of justice would be defeated by contrivance.-But upon the satisfactory account given by three of these printers, though undoubtedly under a criminal proceeding, they would be in mercy in a case of contempt. Though I have the jurisdiction, I shall not use it.-The other printer appears upon the affidavits under different circumstances. Having made the observation, that this pamphlet ought not to be printed, being totally uninteresting to the public, yet he does print it; and though the locus penitentia was afforded to him, and he was called upon not to print any more, he proceeded until he had notice of this petition.

Extracts from Sir Eardley Wilmot's Opinions and Judgments; p. 253.

Hilary Term, 5 Geo. 3. 1765.

The KING 7. ALMON.

And it is

Mr. Plowden resisted the petition, contending 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 this instance, that is not left to conjecture; and whatever may be said as to a constructive contempt through the medium of a libel against persons engaged in controversy in the court, it never has been nor can be denied, that a publication not only with an obvious tendency but with the design to obstruct the ordinary course of justice, is a very high contempt.-Lord Hardwicke considered persons concerned in the business of the court as being under the protection of the court, and not to be driven to other remedies against libels upon them in that respect.—But without considering whether this is or is not a libel upon the petitioner, what excuse can be alleged for the whole tenor of this book, and introduced by this declaration of the purpose which the author intended it to answer? It might be sufficient to say of the book itself, stripped of the dedication, that it could be published with no other intention than to obstruct the duties cast upon the petitioner, and to bring into contempt the orders that had been made. But upon the dedication this is not a constructive contempt. It is not left to inference. In this dedication the object is avowed, by defaming the proceedings of the court standing upon its rules and orders, and interesting the public, prejudiced in favour of the author by her own partial representation, to procure a different species of judgment from that which would be administered in the ordinary course, and by flattering the judge, to taint the source of justice.-This pamphlet has been sent to me.

As to the printers, lord Hardwicke observes, it is no excuse that the printer was ignorant of the contents. Their intention may have been innocent; but, as lord Mansfield had said, the fact whence the illegal motive is inferred must

"It has been argued that the mode of pro ceeding by attachment is an invasion upon the rise from the statute of Westminster, ch. 2; ancient simplicity of the law; that it took its and Gilbert's History of the Practice of the Court of Common Pleas, p. 20, in the first edition, is cited to prove that position. said, that act only applies to persons resisting process; and though this mode of proceeding is very proper to remove obstructions to the treatment of it, or to any contempt to the auexecution of process, or to any contumelious thority of the court, yet that papers reflecting merely upon the qualities of judges themselves, that judges have proper remedies to recover a are not the proper objects of an attachment; satisfaction for such reflections, by actions of "Scandalum Magnatum;" and that in the case of a peer, the House of Lords may be ap plied to for a breach of privilege: That such libellers may be brought to punishment by in

*This opinion was not delivered in court, the prosecution having been dropped in consequence, it is supposed, of the resignation of the then Attorney General; but after the death of this eminent and very learned Chief Justice, was found in his own hand-writing among his papers by his son, who published it in Memoka of his Life, p. 243. The occasion of it was a motion in the Court of King's-Bench, for an attachment against Mr. Almon, for a contempt in publishing a libel upon the Court, and upon, the Chief Justice.