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of the said sir Bazil Brooke; and to use all Stanley ; Sir Thomas Clavering, bart. ; Ropossible diligence herein."
bert Henley Ongley, esq.; Thomas De Grey, 21 December 1660, vol. 8, p. 222. “ This esq. ; The right hon. lord John Cavendish; House baving formerly issued an order for the The right hon. lord George Sackville Germain; Seneant at Arms, &c. to send for in custody The hon. John Yorke; The bon. Charles William Nabbs and Mr. Maurice Tompson, Marsham; The Lord Advocate of Scotland; for violating the privilege of this House, in the Doctor William Burrell; John Buller, of Execase of sir Francis Lawley; and being inform- ter, esq. ; Sir Roger Newdigate, bart. ; Fre. ed that the said Nabbs withdraws himself; and derick Montagu, esq. that the serjeant's deputies, who had in charge This report is said to have been prepared by the warrant as to Mr. Tompson, were denied the Attorney General and Solicitor General. acimittance to him; and that slighting and contemptuous words were given touching the war- Thus it appears that there are abundance of rant; the said deputies were called in to the precedents of punishment by the House of har of this House, and examined; viz. Walter Commons for breach of privilege, and accordCarts and Simon Lowen.
ingly lord Hale (See 1 Hargrave, Juridical Ar. " Resolved, That Mr. Maurice Tompson be guments and Collections, p. 7.) says, “ surely sent for, in custody, as a delinquent; and that the right of criminal punishment of breaches of the Serjeant at Årms be empowered to break privilege of the members of the House of Comspen Mr. Tompson's house in case of resist- mons by long and ancient usage belongs to the ance, and also to bring in custody all such as House of Commons, but not to give dainages." shall make opposition therein ; and he is to call Precedents should not by any means be to his assistance the Sheriff of Middlesex, and slighted. On the contrary in the law of Engall other officers as he shall see cause, who land they are contemplated with very great are required to assist him accordingly. respect, or as Mr. Justice Blackstone (i Comm. January 24, 1670, vol. 9, p. 193. “ Infor-? 1.) expresses it, “ the decisions of courts are mation being given of a very bigh contempt held in the highest regard;” and this chiefly as and misdemeanor committed against the House, being evidence of what the law is ; but partly by assaulting and beating George Dudley, de- also, as it seems, for the preservation of uniputy to the Serjeant at Arms, and rescuing out formity and prevention of uncertainty, or, acof his custody Thomas Parsons, &c.
cording to his phrase, “ to keep the scale of jus"Which misdemeanor and rescue, the said tice even and steady, and not liable to waver Dudley did testify, was committed by Mr. with every new judges opinion.” (1. Comm. John Cox, under sheriff of the county of Glou- 69.) But this regard and respect for precedents cester, and his bailiff and others.
is not unlimited, for, as the same learned com" Resolved, That the Serjeant at Arms at- mentator instructs us, (vol. 1. p. 71.) “ the law tending this House, or such deputy or deputies and the opinion of the judge are not always as he shall appoint, do apprehend and take into convertible terms, or one and the same thing; custody Mr. John Cox, under sheriff of the since it sometimes may bappen that the judge county of Gloucester, William Forder, &c. &c. may mistake the law. In truth, as bishop Bur
" And the high sheriff of the county of net told sir William Jones (See vol. 6. p. 1421 Gloucester
, and other officers concerned, are to of this Collection) “ a precedent against reason be required, by warrant from Mr. Speaker, to may signify no more but that the like injustice be aiding and assisting in the execution of such has been done before." Accordingly the excelwarrant."
lent Chief Justice Vaughan said in the Case Vide also— Topham, as before, June 1, 1675. concerning “ Process out of the Courts at 26 February 1701, vol. 13, p. 767. “ Re-Westminster into Wales,” (Vaugh. Rep. 419.) solved, That" to assert, the House of Com- “ Precedents are useful to decide questions ; mons have no power of commitment, but of but in such
cases as depend upon fundamental their own members, tends to the subversion of principles from which demonstrations may be the constitution of the House of Commons.” | drawn, millions of precedents are to no purpose.” [Reports from Committees of the House
See too, upon the invalidity of the longest and
most uniform succession of precedents, in conof Commons, vol. 3, p. 6.]
tradiction to the plain unambiguous words of The Committee consisted of the following by construction or otherwise, the powerful ob
a statute, or in departure from them, whether
servations of Mr. Erskine at the Trial of John The right hon. Welbore Ellis ; Mr. Solicitor Horne Tooke, (A. D. 1794, infra), which obGeneral, (Alexander Wedderburne, afterwards servations were recognised and reasserted by his earl of Rosslyn and successively Lord Chief lordship in the House of Lords
on the 7th ot May Instice of the Court of Common Pleas and in the
present year 1810 (See Cobb. Parl. Deb. Lord Chancellor); Mr. Attorney General, (Ed- vol. xvi.] ward Thurlow, afterwards lord Thurlow and That zealous, eloquent, and potent friend of Lord Chancellor); Jeremiah Dyson, esq.; establishments, Mr. Burke, has, indeed, in his
The right hon. sir Gilbert anxiety to preserve the tabric of our admirable Eliot, bart.; Sir Henry Hoghton, bart. ; Sir constitution, by the removal of wha'ever is Wiliam Bagot, bart; The right'hon. Hans likely to impair or indanger its foundations,
spoken of precedents with very little reve-1 The Case of Trewynniard has been much rence. After introducing to the contempt of noticed in the late discussions concerning prihis hearers, those who are proud of the an- silege of partiament. It is given as follows by tiquity of their House, and defend their er. Mr. Baron Maseres in his “ Collection of Cases rors as if they were defending their inheritance, and Records concerning Privilege of Parliaafraid of derogating from their nobility, and ment,” p. 53. carefully avoiding a sort of blot in their scutcheon, which they think would degrade them TREWYNNLARD'S Case. Easter, 36 and 37 Hen. for ever ;' he proceeds, “ It was thus that 8, A. D. 1544, in B. R. Vide Dyer, fol. the unfortunate Charles the first defended him! self on the practice of the Stuarts” (I conjec. “ In the King's-bench the case was this. ture he meant the Stuart] “ who went before One William Trewinniard was imprisoned him, and of ail the Tudors. His partisans upon a wnt of Erigent that issued upon a Camight have gone to the Plantagenets. They pias ad Satisfaciendum at the suit of one might have found bad examples enough both. Skewis; and be being thereupon taken in exeabroad and at hoine, that could have shewn an curion, a writ of the privilege of parliament isilustrious descent. But there is a time, when sued to Robert Chamond, at that time sheriff men will not surfer bad things, because their of the county of Cornwall, reciting that Treancestors have suffered worse. There is a time wynniard was a burgess of pariiament, and when the boary bead of inveterate abuse will likewise reciting the custom of privilege of parneither draw reverence nor obtain protection.”, lament. The sheriff in oberience to this writ, Speech in the House of Commons, Feb. 11th during the last session of the last parliament 1780.
bell in the 35th year of the king that now is, And it must be admitted that when conside- let Treu ynniard go at large. Hereupon the ration is had of the liability of the powerful to executors of Skewis bring an action of debt confound power with right* (a topic the theory against the said Chamond; and they demurred of which pervades the compositions of moral- in law upon this matter. ists of every age, and of every description, “ In this case there are three things to be poets, orators, philosophers; and the practice considered: of wbich is proclaimed in almost every page * 1st. Whether the privilege of parliament of history) it may perhaps be not unreasonable lay in this case for a burgess of the parliament to entertain the opinion that precedents of acts arrested upon a writ of execution. of power exercised by individuals or bodies of “ 2ndly. Supposing the privilege lay in this men, possessing or supposed to possess suffi- case, whether the party, upon his being encient strength, physical or moral, to enforce larged in consequence of it
, shall by such enthe exercise of such acts of power, are not of largement be absolutely discharged from all equal validity with precedents of other kinds, execution to be had against him by the other as evidence of right. This opinion will derive party at any time hereafter, or only during the much support from many parts of this Collec- time of parliainent. tion. See the early State Trials as referred to “Brily. Whether, if privilege should be held by Foster 284, the great Case of Impositions not to lie at all in this case, the having acted in in this Collection, vol. 2, p. 37, and Mr. Har- obedience to this writ, as the king's warrant to grave's admirable Introduction to that Case; the him proceeding from the parliament, shall not History of the Proceedings out of which arose be a sufficient excuse for the sheriff's conduct, the Petition of Right; and the History of the and discharge him from being answerable to the Proceedings out of which arose the Revolution plaintiff for the debt. in the year 1683. See also the Case of Penn “ With respect to the first point, it seemeth and Mead, vol. 6. p. 921, and the notes thereto; that privilege is to be allowed in this case. Por and Chief Justice Vaughan's argument in the proof of this it is necessary to consider the Bushell's Case, vol. 6, p. 999 of this Collection. estate of parliament, which consists of three See too the particulars of lord Loughborough's parts, namely, the king as the chief head, the attempt at the Summer Assizes 1789 to ex- lords chief and principal members of the body, act a fine of five hundred pounds upon the and the commons, to wit, the knights, citizens, county of Essex, for defects in their jail; as to and burgesses, as the inferior members; and all which attempt the difference is to be noted be together constitute the body of the parliament. tween fines imposed upon counties by a judge, It is also proper to consider the elections of and amercements upon counties assessed by a these members, with what care and solemnity jury of the body of the county. The law relat- they are elected, the manner of performin, ing to this last Case has been very profoundly which elections appears in the statutes madi. investigated by Mr. Hargrave, and it is to be concerning them. And when they are chosen hoped that he will make public the result of his and returned to parliament, it is understood by valuable lucubrations on the subject.
all men they are the wisest and most discree
men in the kingdom, and the fittest to debat * “ Judges," says lord Hale, (Jurisdiction of upon the good of the commonwealth ; and ac Lords House or Parliament, p. 93.)“commonly cordingly the writ of summons to parliamen chuse rather to ainplify, if it may be, than to directs that they be chosen de gravioribus e abridge their own jurisdiction."
• discretioribus viris, ' &c. And after they ar
thus returned, their personal attendance in the lord might have seized upon him afterwards : parliament is so necessary that they ought not by the same reason, &c. And there is a differfor any business whatsoever to be absent, and ance to be made where the body of a man that not one person can be well spared because he is is in execution is set at large by the authority of a necessary member; and for this reason, if any the law, and where it is done without anthority member dies during the parliament, a new one by the sheriff's own will and boldness : for the is to be chosen in his stead, to the end that the law will save all rights; as in the cases of vilwhole number may be kept up undiminished. lains above-mentioned, they are by the law priAnd from bence it follows that the person of vileged pro tempore;' but if the lord himself inevery sach member ought to be privileged from franchises them by manumission indeed or law being arrested at the suit of any private person for an hour, this infranchisement is good for during the time that he is busied about the af- ever, ' favorum libertatis. Also the law by a fairs of the king and kingdom. And this privi- particular statute directs tható cest:y a que use' lege has always been granted by the king to his may enter and make a feoffinent, and this shall Commons at the request of the Speaker of the bind his feoffees; yet if a cestuy a que in use' parliament the first day, &c. Therefore com- tail makes a feoffment, this is no discontinuance. mon reason directs that, inasmuch as the king Also the law directs that, if a bishop presents to and all his kingdom have an interest in the per- a benefice by lapse upon default of the right son of each of the said members, the private patron, yet his presentation, which is male by convenience of any particular man ought not to authority of the law, shall not prejudice the right be regarded : for it is a maxim in the law, patrons. For these reasons in the present case
Quod magis dignum trabit ad se minus dig- this enlargement by writ is only a privilege of atin;' as in the case in the 6th year of Edw. the burgess • pro tempore,' and not a discharge 4,p. 11, that if a man is condemned in trespass in perpetuum ;'as in tbe case mentioned above or redisseisin, and is in execution for the fine to that happened in 6 Edw. 4. the execution of the the king, if he is outlawed for felony, his body party to have the body in prison was suspended shall not be imprisoned at the suit of the party, pro tempore' until the king had pardoned him because the king has an interest in his body, the felony, but afterwards is revived, 'prout adupon which account, &c. It may therefore be judicatur ibidem,' by which it seemeih, &c. It condoded that this court of parliament is the therefore follows that no action is given against highest of all courts, and has more privileges the sheriff for the escape, unless in respect that than any
other court of the kingdom ; for the principal debtor is discharged, there being which reason it seemeth that in every case, no reason that the plaintiff should be twice sawithout any exception, every burgess is intitled tisfied for the same debt, for
which, &c. to privilege when the arrest is only at the suit of And as to the third point, it seemeth that the
subject ; and the present case is stronger sheriff is not answerable: For if no default, or than the common ones, because the execution laches, can be ascribed to the sheriff, there can Was sued during the time of parliament, and the be no reason to charge him with the debt ; and plaintif had his election whether he would sue there seems to have been no default in him. aut execution against his body or against his For the office of sheriff consists chiefly in the lands and goods. And further, every privilege execution and serving of writs and processes of is founded on prescription ; and every prescrip- the law : And to perfor these he is the imtion that promotes the public welfare is good, mediate officer, and he is sworn that he will although it may be a prejudice to some private perform them. And for this reason he is bound person : thus, in the time of Edw. 4, a prescrip- by his office and oath to make a just return. tion to dig in another man's ground adjoining And the law supposes him to be a lay person, to the sea, in order to erect bulwarks against the and not to have knowledge of the science of king's enemies, was held to be good.
the law; and he is therefore unable to argue or respect to the 2d point, it seemeth dispute whether any writ that he receives comes that the party is not discharged from execution to him with or without sufficient authority : for ever, but only
for a certain time: for it is and upon this ground, if a capias comes to him apt absurd or unreasonable that a judgment without any original writ, and he serves it, he should be at one time executed, and at another will be excused for so doing in an action of executory; as when a fine is levied with a re- false imprisonment. The law is the same if
over, and after the death of the tenant a capias or an exigent comes to the sheriff stranger abates, and he in remainder recovers against a duke or an earl, against whom it by scire facias, and afterwards the recovery is does notice. And, to prove that the sheriff is reversed for ever, he or his heir shall have a not bound to to take notice of the law, the writ new scire facias notwithstanding it was once
de homine replegiando' directs that the sheriff executed; for the cause will then cease : and shall make deliverance of the body, unless the envileged for a certain time, and yet he may mandment of the king vel capitalis justificarii, afterwards be put in prison ; as if a villain comes and lives in antient demesne for a year, his lord
vel pro morte hominis, vel pro foresta, vel pro
aliquo alio recto quare secundùm consuetudijautrict afterwards lay hands upon him ; the nem Angliæ
non est replegiabilis. And furis a sanctuary to hira ; handsyet formerly the Sheriff'shall be amerced if he delivers a prisoner above is the same
where the presence of the’king ther by the statute of Maribridge, cap. 8, the
for redisseisin without special precept.
You have very properly confined your quesalso the statute of Westm. 2, c. 11, de servi- tions to the particular case, furnished me by the
entibus et ballivis,' ordains that, if any man affidavit which you have transmitted to me; is condemned in arrearages before auditors and and my answers therefore need involve in them committed to the next gaol, the sheriff or gaoler no general discussions upon the principles of shall not deliver him by a writ. de homine re- civil government, which in the mere abstract
plegiando, nec aliter,' without the consent of are not often useful, nor always intelligible. his master. And yet if the party sues by bis . The propositions, to which my answers are friends and obtains a writ of Ex parte talis meant strictly to apply, are, returnable in the Exchequer, he may let him First, Whether the facts charged by the affi. go at large : and, notwithstanding that he is davit, on wbich your court of King's-bench is once discharged, if it'appears upon the exami- proceeling against the magistrates of Leitrim, nation of his accounts that he was in arrears are sufficient to warrant any criminal prosecuand duly committed to prison, he shall be re- tion for a misdemeanor whatsoever ? manded to prison quousque, &c. And let us sup- Secondly, Whether, supposing them suffipose that the sheriff in the present case had dis. cient to warrant a prosecution by information obeyed this writ; what damage must he not have or indictment, the court has any jurisdiction suffered ? He would have been in danger of per- to proceed by attachment? jury, and also of imprisonment of his body, and As you are pushed in point of time, I can ransom at the king's wil: and this was done in venture to answer both these questions at Bath, this same parliament against Hill and Suckley without the assistance of my books, because the sheriff's of London, who were committed to they would throw no light upon the first from the Tower for their contempt because they its singularity, and the last is much too clear to would not let George Ferris, who was arrested require any from them, upon an execution, go at large when the ser- As to the first-The facts charged by the afjeant at arms came to demand him, though fidavit do of themselves neither establish nor without a writ. And it is probable this prece- exclude guilt in the defendants. In one state dent was a terror to Chamond, and made him of society such proceedings might be highly fearful of disobeying the writ of parliament criminal; and, in another, truly virtuous and which is the highest court of the kingdom. legal. And it appears plainly by the writ that they To create a national delegation amongst a were clearly of opinion in the parliament that free people, already governed by representathe party ought to have his privilege in tion, can never be, under all circumstances, a this case ; for otherwise the writ wouli only crime: the objects of such delegation, and the have been an Habeas Corpus cum causâ, purposes of those who seek to effect it, can which writ is oftentimes granted before the jus- alone determine the quality of the act, and the tices are agreed whether privilege lies in the guilt or innocence of the actors. case or no ; and if they find that privilege If it points (no matter upon what necessity) does not lie in the case before them, they re- to supersede or to controul the existing governmand the matter with a procedendo &c. And ment, it is self evident, that it cannot be toletherefore, although the parliament should have rated by its laws. It may be a glorious revoluacted erroneously in grantin gthe writ, yet their tion, but it is rebellion against the government act cannot be revised by any other court : and which it changes. therefore there is no default in the sheriff. It, on the other hand, it extends no further
than, to speak with certainty, the united voice The following accounts of the sentiments of of the nation to its representatives, without any two great men on matters connected with this derogation of their legislative authority and subject are very well worth preserving.
discretion; it is a legal proceeding, which Mr. Erskine's Opinion of the Proceedings of which many national conjunctures may render
ought not indeed to be lightly entertained, but the Court of King's-Bench in Ireland, by wise and Attachment, written to a Gentleman of high
The Attorney General might, undoubtedly, Reputation at the Bar in Dublin."
convert the facts, contained in the affidavit, inBath, Jan. 13, 1785. to a legal charge of a high misdemeanor; which, I feel myself very much honoured by your when properly put into the form of an informaapplication to me, on an occasion so important tion, the defendants could demur to : but he to the public freedom; and I only lament, that could not accomplish this, without putting upon neither my age por experience are such as to the record averments of their criminal purposes give my opinion any authority with the court and intentions; the truth of which averments in which you practise ; but wherever I have no are facts which he must establish at the trial, doubt, I am always ready to say what I think, or fail in his prosecution. It is the province of and you are, therefore, very welcome to my | the jury, who are the best judges of the state of most public sentiments, if any use can be made the nation, and the most deeply interested in the of' them.
preservation of its tranquillity, to say, by their
verdict, whether the defendants acted from * Published in the Morning Chronicle news- principles of public spirit, and for the support paper, 1810.
of good government, or sought seditiously to
disturb it.—The one or the other of these ob- The rights of the superior courts to proceed jects would be collected at the trial, from the by attachment, and the limitations imposed conduct of the defendants in summoning the upon that right, are established upon principles meeting, and the purposes of it when met. too plain to be misunderstood.
If the jury saw reason from the evidence to Every court must have power to enforce its think that its objects, however coloured by ex- own process, and to vindicate contempts of its pressions the most guarded and legal, were in authority; otherwise the laws would be deeffet, and intended to be, subversive of govern- spised, and this obvious necessity at once proment and order, or calculated to stir up discon- duces and limits the process of attachment fent, without adequate objects to vindicate the Wherever any act is done by a court which active attention of the public, they would be the subject is bound to obey, obedience may be bound in conscience and in law to convict them: enforced, and disobedience punished, by that but if, on the other hand, their conduct ap- summary proceeding.–Upon this principle atpeared to be vindicated by public danger or ne- tachments issue against officers for contempts. erssity, directed to legal objects of reforma- in not obeying the process of courts directed to tion, and animated by a laudable zeal for the them, as the ministerial servants of the law and honour and prosperity of the nation; then no the parties on whom such process is served, departure from accustomed forms in the man- may, ia like manner, be attached for disnet of assembling ; nor any incorrect expres- obedience. sions in the description of their object, would Many other cases might be put, in which it bind, or even justify, a jury to convict them as is a legal proceeding, since every act which goes libellers of the government, or disturbers of the directly to frustrate the mandates of a court of
justice, is a contempt of its authority. But I To constitute a legal charge of either of these may, venture to lay down tbis distinct and absooffences, the crown (as I before observed) must lutė limitation of such process, viz.—That it aver the criminal intention, which is the es- can only issue in cases where the court, which sence of every crime; and these averments issues it, has awarded some process-given must be either proved at the trial, or, if to be some judgment—made some legal order-or inferred, prima facie, from the facts themselves, done some aet, which the party against whom may be rebutted by evidence of the defendants it issues, or others on whom it is binding, have innocent purposes. If the criminal intent either neglected to obey, contumaciously recharged by the information be not established fused to submit to: excited others, to defeat by to the satisfaction of the jury, the information, artifice or force, or treated with terms of conwhich charges it, is not true; and they are tumely and disrespect. bound to say so by a verdict of acquittal. I But no crime however enormous, even open am therefore of opinion (in answer to the first treason and rebellion, which carries with them question), that the defendants are liable to be a contempt af all law, and the authority of all prosecuted by information ; but that the suc- courts, can possibly be considered as a concess of such prosecution ought to depend upon tempt of any particular court, so as to be puthe opinion which the people of Ireland, form- nishable by attachment, uniess the act, which ing a jury, shall entertain of their intention in is the object of that punishinent, be in direct summoning the meeting, and the real bona fide violation or obstruction of something previously objects of the assembly when met.
done by the court which issues it, and which It is unnecessary to enlarge upon these prin- the party attached was bound by some anteciples, because their notoriety has no doubt cedent proceeding of it, to make the rule of suggested this novel attempt to proceed by at his conduct. A constructive extension of contachment, where they have no place; and I tempt beyond the limits of this plain principle cannot help remarking, that the prosecutor (if would evidently involve every misdemeanor, his prosecution be founded in policy or justice) and deprive the subject of the trial by jury, in has acted with great indiscretion, by shewing all cases where the punishment does not extend that he is afraid to trust the people with that to touch his life. decision upon it, which belongs to them by the The peculiar excellence of the English goconstitution; and which they are more likely vernment consists in the right of being judged to give with impartial justice, than the judges by the country in every criminal case, and not whom be desires to decide upon it at the ex- by fixed magistrates appointed by the crown. pence of their oaths and of the law.
In the higher order of crimes the people alone This is a strong expression, which perhaps, can accuse, and without their leave, distinctly I should not have used in answering the same expressed by an indictment found before them, case in the ordinary course of business; but no man can be capitally arraigned; and in all writing to you as a gentleman, I have no scruple the lesser misdemeanors, which either the crown jin saying, that the judges of the court of King's or individnals borrowing its authority, may bench cannot entertain a jurisdiction by attach- prosecute, the safety of individuals and the ment over the matter contained in the affidavit public freedom absolutely depend upon the well which you have sent me, without such a gross known immemorial right of every detendant to usurpation and abuse of power, as would make throw himself upon his country for deliverance me think it my duty, were I a member of the by the general plea of —Not Gaiity. By that Irish parliament, to call them to account for it plea, which in no such case can be demurred to by impeachment.