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giving courts of justice a power to vindicate “ I have examined very carefully to see if their own dignity, than any other chapter in I could find out any vestiges or traces of its inthat act of Parliament.
troduction, but can find none; it is as ancient - The power which the courts in West- as any other part of the Common Law; there minster Hall have of vindicating their own authority, is coeval with their first foundation and should deter others from committing the like, institution; it is a necessary incident to every and should admonish Parliaments, that instead enuri of justice, whether of record or not, to of this ordinary and precious trial, per legem fine and imprison for a contempt to the court, terra, they bring not in absolute, and partial acted in the face of it, 1 Vent. 1, and the issuing trials by discretion.” 3 Inst. 51. of attachments by the supreme courts of justice in Westminster Hall, for contempts out of
In commenting on the Statute of Marlebridge,
52 H. 3, lord Coke says: eurt, stands upon the same immemorial usage as supports the whole fabric of the common “ The preamble shews the mischiefs, which lax; it is as much the “ Lex Terrie,” and were four. within the exception of Magna Charta, as the “ 1. That in the time of the late troubles, issuing any other legal process whatever. * great men and others refused to be justified by
the king and his court, as they ought, for here of Hindson and Kersey, in the Court of it is said, . multi magnates et alii indignati Common Pleas, when he was Chief Jus- • fuerint recipere justitiam per dominum regem, to Judge' is the law of tyrants met is alleen rianged agraves ultiones fecerint,” That
ways unknown : It is different in different they (refusing the course of the king's laws) * men : It is casual, and depends upon constitu- took upon them to be their own judges in their * tion, temper, passion. In the best it is often- own causes, and to take such revenges as they times caprice : In the worst it is every vice, thought fit, until they had ransoms at their foly, and passion, to which human nature is pleasures. • Aliquis non debet esse judex in liable.
sua propria causa.' Mr. Burke in his Thoughts on the present 6 3. That some of them would not be justiDiscontents' goes so far as to assert that “ All fied by the king's officers." men possessed of an uncontrouled discretionary “ The body of the act consisteth of divers power leading to aggrandizement and profit of branches. their own body have always abused it.”
.“ First, a remedy in general for all the said * Lord Coke, commenting upon the words, mischiets. “Legem Terra," 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 in curia domini ment (11 H. 7, c. 3.] made, that as well jus-regis.'] This is the golden metewand, that tices of assize, as justices of peace (without the law hath appointed to measure the cases of any finding or presentment by the verdict of all and singular persons, high and low, to have twelve men) upon a bare information for the and receive justice in the king's courts ; for king before them made, should have full the king hath distributed his judicial power to power and authority by their discretions to several courts of justice, and courts of justice hear and determine all offences, and contempts ought to determine all causes, and that all pricommitted, or done by any person, or persons vate revenges be avoided. against the form, ordinance, and effect of any Upon this general law, four conclusions do statute made, and not repealed, &c. By colour follow. of which act, shaking this fundamental law, it “ 1. That all men, high and low, must be is not credible what horrible oppressions and justified, that is, have and receive justice in the exactions, to the undoing of infinite numbers king's courts of justice. of people, were committed by sir Richard “ 2. That no private revenge be taken, nor Empson, knight, and Edmund Dudley, being any man by his own arın or power revenge. justices of peace, throughout Englapd; and himself: and this article is grounded upon the upon this unjust and injurious act (as common- law of God, vindicta est mihi et ego retrily in like cases it falleth out) a new office was buam,' saith Almighty God. erected, and they made masters of the king's must come from God, or from bis lieutenant forfeitures.
the king, in some of his courts of justice. * But at the Parliament, holden in the first “ 3. That all the subjects of the realm ought year of 11. 8, this act of 11 H. 7, is recited, to be justified, that is, submit themselves to the and made soid, and repealed, and the reason king's officers of justice according to law.”. thereof is yielded, for that by force of the said See also Mr. Selden's Argument for sir Ed., act, it was manifestly known, that many sinis- mund Hampden, ante, vol. 3, p. 16, et seq. ter, and crafty, feigned, and forged informa- See, too, pp. 79, 128, 152, 153, 154, and the tions, had been pursued against divers of the 4th and 5th clauses of the Petition of Right, king's subjects, to their great damage and pp. 222, 223, of the same volume ; and a paswrongful vexation: and the ill success hereof, sage from Roger North, inserted in a Note to and the fearful ends of these two oppressors, the Case of Fitzharris, A.D. 1681, infra.
All revenge is no priority or posteriority to be discovered the court, for which attachments are granted about it, and therefore cannot be said to inyade constantly, and coolly and deliberately printing the common law, but to act in'alliance and the most virulent and malignant scandal which friendly conjunction with every other provision fancy could suggest upon the judges them. which the wisdom of our ancestors has estab-selves. It seems to be material to fix the ideas lished for the general good of society. And of the words “ authority" and " contempt of though I do not mean to compare and contrast the court,” to speak wiih precision upon the attachments with trials by jury, yet truth com- question. pels me to say, that the mode of proceeding by “ The trial by jury is one part of that sysattachment stands upon the very same founda- tem, the punishing contempts of the court by tion and basis as trials by jury do, immemorial | attachments is another : we must not confound usage and practice; it is a constitutional re- the modes of proceeding, and try, contempts medy in particular cases; and the judges in by juries, and murders by attachment ; we those cases are as much bound to give an must give that energy to each which the con. activity to this part of the law, as to any other stitution prescribes. Jo many cases, we may part of it. Indeed it is admitted, that attach- not see the correspondence and dependance ments are very properly granted for resistance which one part of the system has and bears to of process, or a contuinelious treatment of it, another;, but we must pay that deference to or any violence or abuse of the ministers or the wisdom of many ages as to presume it. others employed to execute it. But it is said And I am sure it wants no great intuition to see, that the courts of justice in those cases is eb- that trials by juries will be buried in the same structed, and the obstruction must be instantly grave with the authority of the courts who are removed; that there is no such necessity in the to preside over them.” case of libels upon courts or judges, which may wait for the ordinary method of presecu
Trinity Term, 8 Geo. 3. tion, without any inconvenience whatsoever. Writs of attachment were granted against But where the nature of the offence of libel-Staples Steare, John Williams, and John Pride ling judges for what they do in their judicial den, for contempt, in publishing the North Bricapacities, either in court or out of court, comes ton Extraordinary, No. 4, containing a letter to be considered, it does, in my opinion, be addressed to lord Mansfield, Lord Chief Juscome more proper for an attachment than any tice, containing gross reflections on his lordship. other case whatsoever.
They were all examined upon interrogatories, “ By our constitution, the king is the foun- and reported in contempt. tain of every species of justice which is ad- And Michas. Term. 9 Geo. 3. Steare was ministered in this kingdom, 12 Co. 25. The sentenced to be imprisoned three calender king is . de jure to distribute justice to all his months. subjects; and because he cannot do it himself to all persons, he delegates his power to his [End of the Reports of the House of judges, who have the custody and guard of the
Commons, 1810, in the Case of Sir king's oath, and sit in the seat of the king
Francis Burdett.) • concerning his justice.'
“ The arraignment of the justice of the Mr. Wynn in his learned · Argument' bas citjudges is arraigning the king's justice; it is an ed other authorities in support of the uncontrollimpeachment of his wisdom and goodness in ed power of the House of Commons, to commit. the choice of his judges, and excites in the There are also three Reports of Precedents of mind of the people a general dissatisfaction punishment for contempt in the Journal of the with all judicial determinations, and indisposes House of Lords, viz. their minds to obey them; and whenever mens
Dec. 19, 1699. allegiance to the laws is so fundamentally shaken, it is the most fatal and the most dan- Ordered, That the committee appointed to gerous obstruction of justice, and, in my opi- inspect the Journals of this House, in relation nion, calls out for a more rapid and immediate to the punishing of persons, whose books or redress than any other obstruction whatsoever ; writings have been censured by this House, as not for the sake of the judges, as private indi- scandalous libe!s) be revived'; to meet previduals, but because they are the channels by sently. Then the House was adjourned during which the king's justice is conveyed to the pleasure. The House was resumed. people. To be impartial, and to be universally And the marquis of Normanby reported from thought so, are both absolutely necessary for the said committee the precedents following ; the giving justice that free, open and un- March 23, 1623, Thomas Morley. interrupted carrent, which it has for many March 22, 1623, Waterhouse. ages found all over this kingdom, and which so July 9, 1625, Ralph Brooke. eminently distinguishes and exalts it above all April 16, 1628, Anthony Lamplugh. uations upon the earth.
March 29, 1642, John Bond. “ In the moral estimation of the offence, and July 9, 1663, Fitton. in every public consequence arising from it, March 8, 1689, Downing. what an infinite disproportion is there between November 18, 1693, Pollard. speaking contumelious words of the rules of
December 18, 1667, William Care.
Herald, for exhibiting a false and scandalous November 25, 1724.
petition against the earl Marshal, was senThe lord Delawar acquainted the House ienced to make his submission to the said earl "That the lords committees appointed to Marshal at the bar, to be imprisoned in the search precedents, as to what punishments Tower during pleasure, and fined 1,000 marks. have been inflicted, or methods taken to vindi- ** April 4, 1626. George Gardner, for buyeate the honour of this House, in cases of any ing and selling of counterfeited protections breach of their lordships privilege, or con- under the hand and seal of a peer in parliatempts to this House, had inspected precedents ment, was ordered to be set on the pillory at accordingły ; and had prepared a Report ; Westminster, with a paper on his head, declarwhich he was ready to make, when their lord- ing his offence; and afterwards to be carried ships will please to receive the same." down to Norwich, and there to stand on the
Ordered, That the said Report be now re- pillory, with the like paper. ceived.
“ 13th June following, The same Gardner, for Accordingly his lordship reported from the scandalizing the justice of this House, and for said committee, as follows:
unjustly slandering the lord keeper, was or** That the committee have inspected the dered to stand in the pillory at Westminster, Journals of this House, in relation to the mat. with a paper on his head, declaring his offence; tens to them referred ; and think proper to and to ride backward with the same paper to offer to your lordships consideration the follow- the cross in Cheapside, and to stand on the ing mstances; viz.
pillory there, and so to ride back to the Fleet : * February 27, 1620. Richard Reynolds and though the lord keeper did earnestly desire and Robert Wright, for arresting a servant to this punishment might be forgiven Gardner, the earl of Oxford, were ordered to be set on yet the House denied it. borseback, near Westminster Hall; neither of “ April 16, 1628. Anthony Lamplugh, for them to have cloak or hat; but to have on exhibiting an unjust and scandalous petition their breasts and backs papers, expressing their against the lord keeper and lord bishop of fault; (siz.), •[For a contemptuous breach of Lincoln, was sentenced to stand committed 10 " the privileges of parliament, aggravated by the Fleet; to acknowledge bere, at the bar, * contemptuous speeches ;'] and so to pass to • That the said petition is unjust and scandalous, the Fleet, where they are to be left prisoners. • and that he is sorry for it ;' and to ask their
* Nov. 27, 1621. Jolin Blunt, for counter- | lordships forgiveness; and to be brought to the feiting the lord Strafford's seal to a protection, chancery bar, and there to make the like acwas ordered to stand on the pillory, at West- knowledgment. minster and in Cheapside, with papers on his “ The next day, he having asked forgivehead shewing his offence; and then to beness at the bar, the remainder of the censure carried to Bridewell, and there to remain during was forgiven. his life, and to work for his living.
“ June 12, 1628. Eysign Reynde, for ig"March 22, 1623. Thomas Morley, for nominious speeches uttered by him against the publishing a printed petition, very scandalous lord viscount Say and Seale, and for his conagainst the lord keeper in particular, and by tempt of this high court of Parliament, was aspersion against the whole court of Star- adjudged never to bear arms hereafter, but acchamber in general, and at the bar insolently counted unworthy to be a soldier ; to be impriusing many insolent words of the lord-keeper, soned during pleasure; to stand under the pilin presence of their lordships, was imprisoned lory, with papers on his head shewing his ofin the Fleet, fined 1,0001. to the king ; set fence, at Cheapside, and at Banbury; to be with his neck in the pillory in Cheapside, with tined at 2001. to the king ; and to ask forgiveone 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 abHorse ; fined 500l. to the king ; to make sub- sconded, so that he could not be taken; not: mission, 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 and directed the court of Star-Chamber, to put petition, imprisoned in the Fleet, admonished the sentence against him in execution, it be not to print any more petitions ; and to make should happen to be apprehended after the submission and acknowledgment.
ending of the session, and out of time of Para “May 28, 1624. Upon a report from the liament, committee of privileges, the fine on Morley “ Jan. 13, 1640. James Faucet, for inso. was reduced to 5001, and he was discharged lent and abusive speeches against the eart of out of prison; and Waterhouse's punishment, Newport, was sentenced to stand committed to mpon his petition, was remitted.
the Fleet; to make his humble submission to the "July ), 1635. Ralph Brooke, Yorke said earl, and to pay him 500l, for damages.
“ March 29th, 1642, post meridiem. John “ 26th of the same month. Consideration Bond, for being the author and contriver of a was had of the said paper; and the earl of false and scandalous letter, pretended to be sent Abingdon, in bis place, declared, That he did, from the queen in Holland to his majesty at in the name of his son, ask pardon of the York, was sentenced to stand on the pillory at House and the Lord Chancellor ; which the Westminster Hall door, and in Cheapside, with House accepted. a paper on his head, written, “A Contriver of * May 7, 1716. James Mynde, a solicitor, • False and Scandalous Libels ;' the said letters was ordered into custody, for putting counsel's to be called in, and burnt near him as he stands ; names to an appeal without their knowledge. and he to be committed to the house of correc- “ 12th of same May, Mynde was brought to tion.
the bar, and, by a petition, confessed himself “ April 28, 1642. Sir William San Ravy, guilty, and a committee was appointed, to in knight, for false, scandalous and malicious re- speci precedents of punishments inflicted. ports and speeches against the earl of Danby, “ 18th of that month, report was made from was fined, to the king, in the sum of 1001.; that committee; and Myndle fined 100l. to the ordered to pay the said earl, by way of damages, king. 500l. ; to make a submission at the bar, and to " June 4, 1716. He petitions to be disbe imprisoned in the Fleet.
charged out of custody; and his petition was “ July 9, 1663. Alexander Fitton, for con- rejected. triving and publishing an intamous libel against “ 12th of the same month. He was ordered the lord Gerrard of Brandon, fined 5001. to his to cause his fine to be paid into the clerk's majesty, committed to the King's Bench, and hands, in order to be estreated into the Exto find sureties for his behaviour during life. chequer, for the regular payment of the same.
December 18, 1667. William Carr, for “14th of the same month. The House bedispersing scandalous and seditious printed ing informed, That the clerk had received the papers against the lord. Gerrard of Brandon, said fine ; Mynde was ordered to be brought to fined 1,000l. to the king, to stand thrice in the the bar, to be discharged; and the next day he pillory, to be imprisoned in the Fleet, and the was brought, reprimanded, and discharged ac• papers to be burnt.
cordingly, (paying his fees).” « March 1, 1676. Dr. Cary was fined 1,000l. for refusing to discover bis knowledge
March 3, 1764. of a libel; and to be committed to the Tower The earl of Marchmont reported from the till he pays the same.
Lords' committees appointed to search prece“ March 8, 1688-9. William Downing, for dents, as to what punishments have been inprinticg a paper reflecting on the lord Grey of dicted, or methods taken to vindicate the ho. Warke, was committed to the Gatehouse, and nour of this House, in cases of any breach of fined 1,0001. to the king.
their lordships' privilege, or contempts to the “ June 11, 1689. Percy's petition, claim-House: ing the earldom of Northumberland, containing “ That the committee have taken into consiseveral reflections, was dismissed the House ; deration the matter to them referred, and have and the said Percy was ordered to be brought inspected the Journals in relation thereto; and before the four courts in Westminster Hall
, find that a long report was made from a comwearing a paper upon his breast, in which mittee, to this House, the 25th of November, these words shall be written, The False and 1724, of precedents of punishments inflicted, or • Impudent Pretender to the Earldom of Nor- methods taken to vindicate the honour of the "thumberland.'
House, in cases of breaches of privilege or con“ April 11, 1690. Thomas Garston, for tempts; which report being entered in the counterfeiting protections, to stand twice in the Journal, the committee think it unnecessary to pillory, and be committed to the Gatehouse till do more than to refer thereto. But they think he pays his fees.
it their duty to offer to the consideration of the « Feb. 22, 1695. The House was informed, House the following instances, which have That there was a paper delivered at the door, occurred since the making of the said report: reflecting on the House, by Robert Crosfield :" “ Feb. 4, 1724. Matthias Cater, for proWhereupon he was called in, and owned the curing and selling protections of the earl of paper ; but, refusing to give the House an ac- Suffolk, and for an unlawful combination to count who printed it, he was ordered into cus- charge certain persons falsely, was fined 20 tody.
nobles, ordered to be committed to Newgate March 17, 1697. A libel, intituled, · Mr. for three months, and until he pay the said • Bertie's Case, &c. with some Remarks on fine; and to be pat twice in the pillory, for the • the Judgment given therein,' was voted false, space of an hour each time, with a paper over malicious and scandalous, and ordered to be his head, signifying his offences. burnt; and a committee was appointed to con- “ April 21, 1725. Thomas Tooke an at. sider of the said paper.
torney, for a breach of the earl of Strafford's “ March 18, 1697. Report was made from privilege, was ordered into the custody of the the committee, That the printer had confessed gentleman usher of the black rod. that Mr. Robert Bertie, a member of the House “ Feb. 22, 1725. Upon a representation of Commons, had employed him to print it. of the black rod against Tooke and others, for
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 tody.
before them any commoner, and of compelling * Jan. 21, 1726, July 4, 1727. The said his attendance;—and that this power and auTouke, not having made his submission, nor thority has ever extended as well to the city of paid his fees, was again ordered into custody. London, without exception on account of
* May 23, 1728. The yeoman usher and charters from the crown, or any pretence of sue of the doorkeepers, being examined con- separate jurisdiction instances of which appear cerning the behaviour of the said Tooke when in the cases (1) referred to in the margin) as to formerly in custody, the House adjudged that every other part of the realm. the said Tooke should pay a fine of 500l. to And that the House have ever considered the king, for breach of privilege and contempt every branch of the civil authority of this goof the House : And the sherits of London and vernment as bound (when required) to be aiding Middlesex were ordered to take him, and keep and assisting to carry into execution the warhimn in Newgate till he should pay the said fine, rants and orders of this House. and the fees and charges to the usher of the black In order to lay before the House the result rod, and other officers of this House.
of their enquiry with tolerable brevity, and some • Feb. 19, 1754. David Home, for forging degree of method, the Committee have reduced and selling protections in the name of the earl under three general headsthe obstructions which of Breadalbane and earl of Crawfurd, was or- have been given at different times to the orders dered to be committed to Newgate for one year, of the House, and under each of these heads and to be put twice in the pillory for the space have ranged the different modes in which these of an hour each time, with a paper over his breaches of privileges and contempts have been bead signifying his offence.
offered; and then submit to the consideration * December 16, 1756. George King, for of the House the several methods of proceeding being concerned in printing and publishing a which the House hath opposed to these Offences, spurious and forged printed paper, dispersed the proofs of which proceedings appear by cases and publicly sold as his majesty's speech to referred to in the margin of this Report. both Houses of Parliament, was fined 50l. and The three general Heads of breaches of pricommitied to Newgate for six months, and vilege and contempts of this House are, namely, until he pay the said fine:
those arising from, First, Evasion. Secondly, " April 1, 1757. Upon his petition, express Force. Thirdly, Colour of Law. ing his abhorrence of his crime, and sorrow for Offences under the First and Second of these the saine, and humbly imploring forgiveness heads have been committed—by the absconding and mercy, he was ordered to be brought to of the parties summoned-by open resistance to the bar.
the officers of the House and by riots and tu“ April 4, 1757. He was brought to the mults—by the refusal of civil officers to assist bar accordingly; where he, on his knees, re- the serjeants or messengers of this House, or to ceiving a reprimand from the Speaker, his release persons entitled to the privilege of this fine was remitted ; and he was ordered to be House when detained in their custody. discharged out of Newgate, paying his fees.” It appears also to your Committee, as well from REPORT CONCERNING PRIVILEGE. searching the Journals of this House, as from
other authentic evidence, that, in order to reOn the soth of April, 1971, a Committee medy the abuses, and to remove the obstructions of the House of Commons which had been “ap- above recited, this House has proceeded to suppointed to examine into the several facts and port their privileges, and to enforce the execucircumstances relative to the late obstructions to the execution of the orders of the House," made (1) Ferrers' Case, in Crompton, fo. 9 & 10.a report in which, after having stated the evi- Stanman, 6 E. 6. Ist vol. p. 18.- Boswell, 12 denee of the facts and circumstances relative to and 3 P. and M. 1555.-Nov. 20, 1st vol. p. those obstructions, they stated that they had 44.—Corbet, 5 and 6 P. and M. 1557, Nov. 10, proceeded to the other part of what was given ist vol. p. 51.-Six Servants of Sir H. Jones, them in charge; namely, " to consider what 10 Feb. 1562, 1st vol. p. 65.—Wm. Jones, 29 "further proceedings may be requisite to en- Oct. 8 Eliz. 1566, 1st vol. p. 75.-Sir J. Shirley, "force a due obedience to the orders of the March 22, 1608, 1st vol. p. 169.—Sterling, " House;" and, in order to form their Judg- 1666, vol. viii
. p. 335.-—4 June 1675, vol. ix. ment upon that matter, they have made a dili- p. 354, " 'Tis not against the King's dignity gent search in the Journals, to see what the for the House of Commons to punish, by improceedings of the House have been on similar prisonment, a commoner that is guilty of viooccasions; or, if no cases strictly analogous lating their privileges, that being according to should occur, at least to deduce, from the ge- the known laws and custom of parliament, and Deral practice of the House, such principles of the right of their privileges, declared by the parliamentary law as might be applicable to king's royal Predecessors in former parliathe present matter referred to their consider- ments, and by himself in this.”—1 April 1697, ation.
vol. xi. p. 765, John Salusbury.-3 Jan. 1703, And in this place the Committee beg leave to vol. xiv. p. 269, Tutchin, How, and Brag.--27 observe, that it appears to them that this House May 1721, vol. xix. p. 562, Mist.