giving courts of justice a power to vindicate their own dignity, than any other chapter in that act of Parliament. The power which the courts in Westminster Hall have of vindicating their own authority, is coeval with their first foundation and institution; it is a necessary incident to every court of justice, whether of record or not, to fine and imprison for a contempt to the court, acted in the face of it, 1 Vent. 1, and the issuing of attachments by the supreme courts of justice in Westminster Hall, for contempts out of court, stands upon the same immemorial usage as supports the whole fabric of the common law; it is as much the "Lex Terræ," and within the exception of Magna Charta, as the issuing any other legal process whatever." of Hindson and Kersey, in the Court of Mr. Burke in his Thoughts on the present Discontents' goes so far as to assert that "All men possessed of an uncontrouled discretionary power leading to aggrandizement and profit of their own body have always abused it." "I have examined very carefully to see if I could find out any vestiges or traces of its introduction, but can find none; it is as ancient as any other part of the Common Law; there should deter others from committing the like, and should admonish Parliaments, that instead of this ordinary and precious trial, per legem terra, they bring not in absolute, and partial trials by discretion." 3 Inst. 51. In commenting on the Statute of Marlebridge, 52 H. 3, lord Coke says: "The preamble shews the mischiefs, which were four. "1. That in the time of the late troubles, great men and others refused to be justified by the king and his court, as they ought, for here it is said, multi magnates et alii indignati 'fuerint recipere justitiam per dominum regem, 'et curiam suam.' "2. Sed graves ultiones fecerint,' That they (refusing the course of the king's laws) took upon them to be their own judges in their own causes, and to take such revenges as they thought fit, until they had ransoms at their pleasures. Aliquis non debet esse judex in 'sua propria causa.' 6 "3. That some of them would not be justified by the king's officers." "The body of the act consisteth of divers branches. "First, a remedy in general for all the said mischiefs. 66 Lord Coke, commenting upon the words, Legem Terre," in Magna Charta, says: (1). Provisum est, concordatum, et con"Against this antient and fundamental law, cessum, quod tam majores quam minores, and in the face thereof, I find an act of parlia-justitiam habeant et recipiant în curia domini ment [11 H. 7, c. 3.] made, that as well justices of assize, as justices of peace (without any finding or presentment by the verdict of twelve men) upon a bare information for the king before them made, should have full power and authority by their discretions to hear and determine all offences, and contempts committed, or done by any person, or persons against the form, ordinance, and effect of any statute made, and not repealed, &c. By colour of which act, shaking this fundamental law, it is not credible what horrible oppressions and exactions, to the undoing of infinite numbers of people, were committed by sir Richard Empson, knight, and Edmund Dudley, being justices of peace, throughout England; and upon this unjust and injurious act (as commonly in like cases it falleth out) a new office was erected, and they made masters of the king's forfeitures. regis.'] This is the golden metewand, that the law hath appointed to measure the cases of all and singular persons, high and low, to have and receive justice in the king's courts; for the king hath distributed his judicial power to several courts of justice, and courts of justice ought to determine all causes, and that all private revenges be avoided. "But at the Parliament, holden in the first year of H. 8, this act of 11 H. 7, is recited, and made void, and repealed, and the reason thereof is yielded, for that by force of the said act, it was manifestly known, that many sinister, and crafty, feigned, and forged informations, had been pursued against divers of the king's subjects, to their great damage and wrongful vexation: and the ill success hereof, and the fearful ends of these two oppressors, "Upon this general law, four conclusions do follow. "1. That all men, high and low, must be justified, that is, have and receive justice in the king's courts of justice. 2. That no private revenge be taken, nor any man by his own arm or power revenge. himself: and this article is grounded upon the law of God, vindicta est mihi et ego retribuam,' saith Almighty God. All revenge must come from God, or from his lieutenant the king, in some of his courts of justice. "3. That all the subjects of the realm ought to be justified, that is, submit themselves to the king's officers of justice according to law." See also Mr. Selden's Argument for sir Ed-. mund Hampden, aute, vol. 3, p. 16, et seq. See, too, pp. 79, 128, 152, 153, 154, and the 4th and 5th clauses of the Petition of Right, pp. 222, 223, of the same volume; and a pas sage from Roger North, inserted in a Note to the Case of Fitzharris, A. D. 1681, infra. is no priority or posteriority to be discovered about it, and therefore cannot be said to invade the common law, but to act in alliance and friendly conjunction with every other provision which the wisdom of our ancestors has established for the general good of society. And though I do not mean to compare and contrast attachments with trials by jury, yet truth compels me to say, that the mode of proceeding by attachment stands upon the very same foundation and basis as trials by jury do, immemorial usage and practice; it is a constitutional remedy in particular cases; and the judges in those cases are as much bound to give an activity to this part of the law, as to any other part of it. Indeed it is admitted, that attachments are very properly granted for resistance of process, or a contumelious treatment of it, or any violence or abuse of the ministers or others employed to execute it. But it is said that the courts of justice in those cases is ob- | structed, and the obstruction must be instantly removed; that there is no such necessity in the case of libels upon courts or judges, which may wait for the ordinary method of presecution, without any inconvenience whatsoever. But where the nature of the offence of libelling judges for what they do in their judicial capacities, either in court or out of court, comes to be considered, it does, in my opinion, become more proper for an attachment than any other case whatsoever. "By our constitution, the king is the fountain of every species of justice which is administered in this kingdom, 12 Co. 25. The king is de jure' to distribute justice to all his subjects; and because he cannot do it himself to all persons, he delegates his power to his judges, who have the custody and guard of the king's oath, and sit in the seat of the king concerning his justice.' "The arraignment of the justice of the judges is arraigning the king's justice; it is an impeachment of his wisdom and goodness in the choice of his judges, and excites in the mind of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey then; and whenever mens allegiance to the laws is so fundamentally shaken, it is the most fatal and the most dangerous obstruction of justice, and, in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the judges, as private individuals, but because they are the channels by which the king's justice is conveyed to the people. To be impartial, and to be universally thought so, are both absolutely necessary for the giving justice that free, open and uninterrupted current, which it has for many ages found all over this kingdom, and which so eminently distinguishes and exalts it above all uations upon the earth. "In the moral estimation of the offence, and in every public consequence arising from it, what an infinite disproportion is there between speaking contumelious words of the rules of the court, for which attachments are granted constantly, and coolly and deliberately printing the most virulent and malignant scandal which fancy could suggest upon the judges themselves. It seems to be material to fix the ideas of the words " authority" and "contempt of the court," to speak with precision upon the question. "The trial by jury is one part of that system, the punishing contempts of the court by attachments is another: we must not confound the modes of proceeding, and try contempts by juries, and murders by attachment; we must give that energy to each which the constitution prescribes. In many cases, we may not see the correspondence and dependance which one part of the system has and bears to another; but we must pay that deference to the wisdom of many ages as to presume it. And I am sure it wants no great intuition to see, that trials by juries will be buried in the same grave with the authority of the courts who are to preside over them." Trinity Term, 8 Geo. 3. Writs of attachment were granted against Staples Steare, John Williams, and John Pridden, for contempt, in publishing the North Briton Extraordinary, No. 4, containing a letter addressed to lord Mansfield, Lord Chief Jus tice, containing gross reflections on his lordship. They were all examined upon interrogatories, and reported in contempt. And Michas. Term. 9 Geo. 3. Steare was sentenced to be imprisoned three calender months. [End of the Reports of the House of Commons, 1810, in the Case of Sir Francis Burdett.] MR. WYNN in his learned Argument' bas cited other authorities in support of the uncontrolled power of the House of Commons, to commit. There are also three Reports of Precedents of punishment for contempt in the Journal of the House of Lords, viz. Dec. 19, 1699. Ordered, That the committee appointed to inspect the Journals of this House, in relation to the punishing of persons, whose books of writings have been censured by this House, as scandalous libels) be revived; to meet presently. Then the House was adjourned during pleasure. The House was resumed. And the marquis of Normanby reported from March 8, 1689, Downing. November 25, 1724. The lord Delawar acquainted the House "That the lords committees appointed to search precedents, as to what punishments have been inflicted, or methods taken to vindicate the honour of this House, in cases of any breach of their lordships privilege, or contempts to this House, had inspected precedents accordingly; and had prepared a Report; which he was ready to make, when their lordships will please to receive the same." Ordered, That the said Report be now received. Accordingly his lordship reported from the said committee, as follows: Herald, for exhibiting a false and scandalous petition against the earl Marshal, was sentenced to make his submission to the said earl Marshal at the bar, to be imprisoned in the Tower during pleasure, and fined 1,000 marks. "April 4, 1626. George Gardner, for buying and selling of counterfeited protections under the hand and seal of a peer in parlia ment, was ordered to be set on the pillory at Westminster, with a paper on his head, declaring his offence; and afterwards to be carried down to Norwich, and there to stand on the pillory, with the like paper. "13th June following, The same Gardner, for scandalizing the justice of this House, and for unjustly slandering the lord keeper, was ordered to stand in the pillory at Westminster, with a paper on his head, declaring his offence; and to ride backward with the same paper to "That the committee have inspected the Journals of this House, in relation to the mat. ters to them referred; and think proper to offer to your lordships consideration the follow-the cross in Cheapside, and to stand on the ing instances; viz. pillory there, and so to ride back to the Fleet: and though the lord keeper did earnestly desire this punishment might be forgiven Gardner, yet the House denied it. 66 April 16, 1628. Anthony Lamplugh, for exhibiting an unjust and scandalous petition against the lord keeper and lord bishop of Lincoln, was sentenced to stand committed to the Fleet; to acknowledge here, at the bar, February 27, 1620. Richard Reynolds and Robert Wright, for arresting a servant to the earl of Oxford, were ordered to be set on horseback, near Westminster Hall; neither of them to have cloak or hat; but to have on their breasts and backs papers, expressing their fault; (viz.), [For a contemptuous breach of the privileges of parliament, aggravated by contemptuous speeches ;'] and so to pass to the Fleet, where they are to be left prisoners. "Nov. 27, 1621. John Blunt, for counterfeiting the lord Strafford's seal to a protection, was ordered to stand on the pillory, at West-knowledgment. minster and in Cheapside, with papers on his head shewing his offence; and then to be carried to Bridewell, and there to remain during his life, and to work for his living. That the said petition is unjust and scandalous, ' and that he is sorry for it;' and to ask their lordships forgiveness; and to be brought to the chancery bar, and there to make the like ac "The next day, he having asked forgiveness at the bar, the remainder of the censure was forgiven. "June 12, 1628. Ensign Reynde, for ignominious speeches uttered by him against the lord viscount Say and Seale, and for his contempt of this high court of Parliament, was adjudged never to bear arms hereafter, but accounted unworthy to be a soldier; to be imprisoned during pleasure; to stand under the pillory, with papers on his head shewing his offence, at Cheapside, and at Banbury; to be fined at 2007. to the king; and to ask forgive ness. "March 22, 1623. Thomas Morley, for publishing a printed petition, very scandalous against the ford keeper in particular, and by aspersion against the whole court of Starchamber in general, and at the bar insolently using many insolent words of the lord-keeper, in presence of their lordships, was imprisoned in the Fleet, fined 1,000l. to the king; set with his neck in the pillory in Cheapside, with one of the petitions on his head; ordered to make submission, and acknowledgment of" his "And as to the precedent last mentioned, fault, at the bar and in the Star-chamber. The the committee think proper to observe to the next day one Waterhouse, who penned the first House, That it appears by the Journal, that draught of Morley's petition, was adjudged to their lordships utmost endeavours were used, be a prisoner in the Fleet, and debarred pen, to apprehend and bring the said Reynde in ink, and paper, during the pleasure of the person, before them, to justice; but he abHouse; fined 500l. to the king; to make sub-sconded, so that he could not be taken; notmission, and acknowledgment of this his fault, withstanding which, the House, in his absence, at the bar, in the Star-chamber, and to the lord-proceeded to the censure above-mentioned; keeper: and Bernard Alsop, the printer of the petition, imprisoned in the Fleet, admonished not to print any more petitions; and to make submission and acknowledgment. "May 28, 1624. Upon a report from the committee of privileges, the fine on Morley was reduced to 5004, and he was discharged out of prison; and Waterhouse's punishment, apon his petition, was remitted. *July 9, 1625. Ralph Brooke, Yorke and directed the court of Star-Chamber, to put the sentence against him in execution, if he should happen to be apprehended after the ending of the session, and out of time of Par liament. "Jan. 13, 1640. James Faucet, for inso lent and abusive speeches against the earl of Newport, was sentenced to stand committed to the Fleet; to make his humble submission to the said earl, and to pay him 5007, for damages. "March 29th, 1642, post meridiem. John Boud, for being the author and contriver of a false and scandalous letter, pretended to be sent from the queen in Holland to his majesty at York, was sentenced to stand on the pillory at Westminster Hall door, and in Cheapside, with a paper on his head, written, A Contriver of False and Scandalous Libels;' the said letters to be called in, and burnt near him as he stands ; and he to be committed to the house of correction. "April 28, 1642. Sir William San Ravy, knight, for false, scandalous and malicious reports and speeches against the earl of Danby, was fined, to the king, in the sum of 100.; ordered to pay the said earl, by way of damages, 500l.; to make a submission at the bar, and to be imprisoned in the Fleet. "July 9, 1663. Alexander Fitton, for contriving and publishing an infamous libel against the lord Gerrard of Brandon, fined 500l. to his majesty, committed to the King's Bench, and to find sureties for his behaviour during life. "December 18, 1667. William Carr, for dispersing scandalous and seditious printed papers against the lord Gerrard of Brandon, fined 1,000l. to the king, to stand thrice in the pillory, to be imprisoned in the Fleet, and the papers to be burnt. "March 1, 1676. Dr. Cary was fined 1,000/. for refusing to discover his knowledge of a libel; and to be committed to the Tower till he pays the same. "March 8, 1688-9. William Downing, for printing a paper reflecting on the lord Grey of Warke, was committed to the Gatehouse, and fined 1,000l. to the king. "June 11, 1689. Percy's petition, claiming the earldom of Northumberland, containing several reflections, was dismissed the House; and the said Percy was ordered to be brought before the four courts in Westminster Hall, wearing a paper upon his breast, in which these words shall be written, The False and Impudent Pretender to the Earldom of Northumberland.' "April 11, 1690. Thomas Garston, for counterfeiting protections, to stand twice in the pillory, and be committed to the Gatehouse till he pays his fees. Feb. 22, 1695. The House was informed, That there was a paper delivered at the door, reflecting on the House, by Robert Crosfield:" Whereupon he was called in, and owned the paper; but, refusing to give the House an account who printed it, he was ordered into custody. March 17, 1697. A libel, intituled, Mr. Bertie's Case, &c. with some Remarks on the Judgment given therein,' was voted false, malicious and scandalous, and ordered to be burnt; and a committee was appointed to consider of the said paper. "March 18, 1697. Report was made from the committee, That the printer had confessed that Mr. Robert Bertie, a member of the House of Commons, had employed him to print it. "26th of the same month. Consideration was had of the said paper; and the earl of Abingdon, in his place, declared, That he did, in the name of his son, ask pardon of the House and the Lord Chancellor; which the House accepted. "May 7, 1716. James Mynde, a solicitor, was ordered into custody, for putting counsel's names to an appeal without their knowledge. "12th of same May, Mynde was brought to the bar, and, by a petition, confessed himself guilty; and a committee was appointed, to in. spect precedents of punishments inflicted. "18th of that month, report was made from that committee; and Mynde fined 100l. to the king. June 4, 1716. He petitions to be discharged out of custody; and his petition was rejected. "12th of the same mouth. He was ordered to cause his fine to be paid into the clerk's hands, in order to be estreated into the Exchequer, for the regular payment of the same. "14th of the same month. The House being informed, That the clerk had received the said fine; Mynde was ordered to be brought to the bar, to be discharged; and the next day he was brought, reprimanded, and discharged ac cordingly, (paying his fees)." March 3, 1764. The earl of Marchmont reported from the Lords' committees appointed to search prece dents, as to what punishments have been inflicted, or methods taken to vindicate the ho nour of this House, in cases of any breach of their lordships' privilege, or contempts to the House: "That the committee have taken into consideration the matter to them referred, and have inspected the Journals in relation thereto; and find that a long report was made from a committee, to this House, the 25th of November, 1724, of precedents of punishments inflicted, or methods taken to vindicate the honour of the House, in cases of breaches of privilege or contempts; which report being entered in the Journal, the committee think it unnecessary to do more than to refer thereto. But they think it their duty to offer to the consideration of the House the following instances, which have occurred since the making of the said report: "Feb. 4, 1724. Matthias Cater, for procuring and selling protections of the earl of Suffolk, and for an unlawful combination to charge certain persons falsely, was fined 20 nobles, ordered to be committed to Newgate for three months, and until he pay the said fine; and to be put twice in the pillory, for the space of an hour each time, with a paper over his head, signifying his offences. "April 21, 1725. Thomas Tooke an attorney, for a breach of the earl of Strafford's privilege, was ordered into the custody of the gentleman usher of the black rod. "Feb. 22, 1725. Upon a representation of the black rod against Tooke and others, for tody. merly ordered into custody for breaches of pri- | has, from the earliest times, asserted and exervilege, they were all ordered again into cus-cised the power and authority of summoning before them any commoner, and of compelling his attendance;-and that this power and authority has ever extended as well to the city of London, without exception on account of charters from the crown, or any pretence of separate jurisdiction (instances of which appear in the cases (1) referred to in the margin) as to every other part of the realm. Jan. 21, 1726, July 4, 1727. The said Tooke, not having made his submission, nor paid his fees, was again ordered into custody. "May 23, 1728. The yeoman usher and one of the doorkeepers, being examined concerning the behaviour of the said Tooke when formerly in custody, the House adjudged that the said Tooke should pay a fine of 500l. to the king, for breach of privilege and contempt of the House: And the sheriffs of London and Middlesex were ordered to take him, and keep him in Newgate till he should pay the said fine, and the fees and charges to the usher of the black rod, and other officers of this House. "Feb. 19, 1754. David Home, for forging and selling protections in the name of the earl of Breadalbane and earl of Crawfurd, was ordered to be committed to Newgate for one year, and to be put twice in the pillory for the space of an hour each time, with a paper over his head signifying his offence. "December 16, 1756. George King, for being concerned in printing and publishing a spurious and forged printed paper, dispersed and publicly sold as his majesty's speech to both Houses of Parliament, was fined 50%. and committed to Newgate for six months, and until he pay the said fine : "April 1, 1757. Upon his petition, expressing his abhorrence of his crime, and sorrow for the same, and humbly imploring forgiveness and mercy, he was ordered to be brought to the bar. 66 April 4, 1757. He was brought to the bar accordingly; where he, on his knees, receiving a reprimand from the Speaker, his fine was remitted; and he was ordered to be discharged out of Newgate, paying his fees." REPORT CONCERNING PRIVILEGE. On the 30th of April, 1771, a Committee of the House of Commons which had been "appointed to examine into the several facts and circumstances relative to the late obstructions to the execution of the orders of the House," made a report in which, after having stated the evidence of the facts and circumstances relative to those obstructions, they stated that they had proceeded to the other part of what was given them in charge; namely, "to consider what "further proceedings may be requisite to en"force a due obedience to the orders of the “House ;" and, in order to form their Judgment upon that matter, they have made a diligent search in the Journals, to see what the proceedings of the House have been on similar occasions; or, if no cases strictly analogous should occur, at least to deduce, from the general practice of the House, such principles of parliamentary law as might be applicable to the present matter referred to their consider ation. And in this place the Committee beg leave to observe, that it appears to them that this House VOL. VIII. And that the House have ever considered every branch of the civil authority of this government as bound (when required) to be aiding and assisting to carry into execution the warrants and orders of this House. In order to lay before the House the result of their enquiry with tolerable brevity, and some degree of method, the Committee have reduced under three general heads the obstructions which have been given at different times to the orders of the House, and under each of these heads have ranged the different modes in which these breaches of privileges and contempts have been offered; and then submit to the consideration of the House the several methods of proceeding which the House hath opposed to these Offences, the proofs of which proceedings appear by cases referred to in the margin of this Report. The three general Heads of breaches of privilege and contempts of this House are, namely, those arising from, First, Evasion. Secondly, Force. Thirdly, Colour of Law. Offences under the First and Second of these heads have been committed-by the absconding of the parties summoned-by open resistance to the officers of the House and by riots and tumults-by the refusal of civil officers to assist the serjeants or messengers of this House, or to release persons entitled to the privilege of this House when detained in their custody. It appears also to your Committee, as well from searching the Journals of this House, as from other authentic evidence, that, in order to remedy the abuses, and to remove the obstructions above recited, this House has proceeded to support their privileges, and to enforce the execu (1) Ferrers' Case, in Crompton, fo. 9 & 10.— Stanman, 6 E. 6. 1st vol. p. 18.—Boswell, [2 and 3 P. and M.1555.-Nov. 20, 1st vol. p. 44.-Corbet, 5 and 6 P. and M. 1557, Nov. 10, 1st vol. p. 51.-Six Servants of Sir H. Jones, 10 Feb. 1562, 1st vol. p. 65.-Wm. Jones, 29 Oct. 8 Eliz. 1566, 1st vòl. p. 75.-Sir J. Shirley, March 22, 1608, 1st vol. p. 169.-Sterling, 1666, vol. viii. p. 335.-4 June 1675, vol. ix. p. 354, ""Tis not against the King's dignity for the House of Commons to punish, by imprisonment, a commoner that is guilty of violating their privileges, that being according to the known laws and custom of parliament, and the right of their privileges, declared by the king's royal Predecessors in former parliaments, and by himself in this."-1 April 1697, vol. xi. p. 765, John Salusbury.-3 Jan. 1703, vol. xiv. p. 269, Tutchin, How, and Brag.--27 May 1721, vol. xix. p. 562, Mist. F |