of the said sir Bazil Brooke; and to use all possible diligence herein." 21 December 1660, vol. 8, p. 222. "This House having formerly issued an order for the Serjeant at Arms, &c. to send for in custody William Nabbs and Mr. Maurice Tompson, for violating the privilege of this House, in the case of sir Francis Lawley; and being informed that the said Nabbs withdraws himself; and that the serjeant's deputies, who had in charge the warrant as to Mr. Tompson, were denied admittance to him; and that slighting and contemptuous words were given touching the warrant; the said deputies were called in to the bar of this House, and examined; viz. Walter Curtis and Simon Lowen. "Resolved, That Mr. Maurice Tompson be sent for, in custody, as a delinquent; and that the Serjeant at Arms be empowered to break open Mr. Tompson's house in case of resistance, and also to bring in custody all such as shall make opposition therein; and he is to call to his assistance the Sheriff of Middlesex, and all other officers as he shall see cause, who are required to assist him accordingly." January 24, 1670, vol. 9, p. 193. "Information being given of a very high contempt and misdemeanor committed against the House, by assaulting and beating George Dudley, deputy to the Serjeant at Arms, and rescuing out of his custody Thomas Parsons, &c. "Which misdemeanor and rescue, the said Dudley did testify, was committed by Mr. John Cox, under sheriff of the county of Gloucester, and his bailiff and others. Stanley; Sir Thomas Clavering, bart.; Robert Henley Ongley, esq.; Thomas De Grey, esq.; The right hon. lord John Cavendish; The right hon. lord George Sackville Germain; The hon. John Yorke; The hon. Charles Marsham; The Lord Advocate of Scotland; Doctor William Burrell; John Buller, of Exeter, esq.; Sir Roger Newdigate, bart.; Frederick Montagu, esq. This report is said to have been prepared by the Attorney General and Solicitor General. Thus it appears that there are abundance of precedents of punishment by the House of Commons for breach of privilege, and accordingly lord Hale (See 1 Hargrave, Juridical Arguments and Collections, p. 7.) says, "surely the right of criminal punishment of breaches of privilege of the members of the House of Commons by long and ancient usage belongs to the House of Commons, but not to give damages." Precedents should not by any means be slighted. On the contrary in the law of England they are contemplated with very great respect, or as Mr. Justice Blackstone (1 Comm. 71.) expresses it, "the decisions of courts are held in the highest regard ;" and this chiefly as being evidence of what the law is; but partly also, as it seems, for the preservation of uniformity and prevention of uncertainty, or, according to his phrase, "to keep the scale of justice even and steady, and not liable to waver with every new judges opinion." (1. Comm. 69.) But this regard and respect for precedents is not unlimited, for, as the same learned commentator instructs us, (vol. 1. p. 71.) "the law and the opinion of the judge are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law." In truth, as bishop Burnet told sir William Jones (See vol. 6. p. 1421 of this Collection) " a precedent against reason may signify no more but that the like injustice has been done before." Accordingly the excellent 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 Commons have no power of commitment, but of their own members, tends to the subversion of the constitution of the House of Commons." [Reports from Committees of the House of Commons, vol. 3, p. 6.] "Resolved, That the Serjeant at Arms attending this House, or such deputy or deputies as he shall appoint, do apprehend and take into custody Mr. John Cox, under sheriff of the county of Gloucester, William Forder, &c. &c. "And the high sheriff of the county of Gloucester, and other officers concerned, are to be required, by warrant from Mr. Speaker, to be aiding and assisting in the execution of such warrant." "Precedents are useful to decide questions; but in such cases as depend upon fundamental principles from which demonstrations may be drawn, millions of precedents are to no purpose." See too, upon the invalidity of the longest and most uniform succession of precedents, in contradiction to the plain unambiguous words of by construction or otherwise, the powerful oba statute, or in departure from them, whether servations of Mr. Erskine at the Trial of John Horne Tooke, (a. D. 1794, infra), which observations were recognised and reasserted by his lordship in the House of Lords on the 7th of May in the present year 1810 [See Cobb. Parl. Deb. vol. xvi.] That zealous, eloquent, and potent friend of establishments, Mr. Burke, has, indeed, in his anxiety to preserve the fabric of our admirable constitution, by the removal of whatever is likely to impair or indanger its foundations, spoken of precedents with very little reverence. After introducing to the contempt of his hearers, those who are proud of the antiquity of their House, and defend their errors as if they were defending their inheritance, afraid of derogating from their nobility, and carefully avoiding a sort of blot in their scutcheon, which they think would degrade them for ever;" he proceeds, "It was thus that the unfortunate Charles the first defended himself on the practice of the Stuarts" [I conjecture he meant the Stuart] "who went before him, and of al the Tudors. His partisans might have gone to the Plantagenets. They might have found bad examples enough both abroad and at home, that could have shewn an illustrious desceat. But there is a time, when men will not suffer bad things, because their ancestors have suffered worse. There is a time when the hoary head of inveterate abuse will neither draw reverence nor obtain protection." Speech in the House of Commons, Feb. 11th 1780. And it must be admitted that when consideration is had of the liability of the powerful to confound power with right (a topic the theory of which pervades the compositions of moralists of every age, and of every description, poets, orators, philosophers; and the practice of which is proclaimed in almost every page of history) it may perhaps be not unreasonable to entertain the opinion that precedents of acts of power exercised by individuals or bodies of men, possessing or supposed to possess sufficient strength, physical or moral, to enforce the exercise of such acts of power, are not of equal validity with precedents of other kinds, as evidence of right. This opinion will derive much support from many parts of this Collection. See the early State Trials as referred to by Foster 284, the great Case of Impositions in this Collection, vol. 2, p. 37, and Mr. Hargrave's admirable Introduction to that Case; the History of the Proceedings out of which arose the Petition of Right; and the History of the Proceedings out of which arose the Revolution in the year 1683. See also the Case of Penn and Mead, vol. 6. p. 921, and the notes thereto; and Chief Justice Vaughan's argument in Bushell's Case, vol. 6, p. 999 of this Collection. See too the particulars of lord Loughborough's attempt at the Summer Assizes 1789 to exact a fine of five hundred pounds upon the county of Essex, for defects in their jail; as to which attempt the difference is to be noted between fines imposed upon counties by a judge, and amercements upon counties assessed by a jury of the body of the county. The law relating to this last Case has been very profoundly investigated by Mr. Hargrave, and it is to be hoped that he will make public the result of his valuable lucubrations on the subject. "Judges," says lord Hale, (Jurisdiction of Lords House or Parliament, p. 93.)" commonly chuse rather to amplify, if it may be, than to abridge their own jurisdiction." The Case of Trewynniard has been much noticed in the late discussions concerning privilege of parliament. It is given as follows by Mr. Baron Maseres in his "Collection of Cases and Records concerning Privilege of Parliament,” p. 53. TREWYNNIARD'S CASE. Easter, 36 and 37 Hen. 8, A. D. 1544, in B. R. Vide Dyer, fol. 59, b. "In the King's-bench the case was this. One William Trewynniard was imprisoned upon a writ of Exigent that issued upon a Capias ad Satisfaciendum at the suit of one Skewis; and be being thereupon taken in execution, a writ of the privilege of parliament issued to Robert Chamond, at that time sheriff of the county of Cornwall, reciting that Trewynniard was a burgess of parliament, and likewise reciting the custom of privilege of parliament. The sheriff in obedience to this writ, during the last session of the last parliament held in the 35th year of the king that now is, let Trewynniard go at large. Hereupon the executors of Skewis bring an action of debt against the said Chamond; and they demurred in law upon this matter. "In this case there are three things to be considered: 1st. Whether the privilege of parliament lay in this case for a burgess of the parliament arrested upon a writ of execution. "2ndly. Supposing the privilege lay in this case, whether the party, upon his being enlarged in consequence of it, shall by such enlargement be absolutely discharged from all execution to be had against him by the other party at any time hereafter, or only during the time of parliament. "3rdly. Whether, if privilege should be held not to lie at all in this case, the having acted in obedience to this writ, as the king's warrant to him proceeding from the parliament, shall not be a sufficient excuse for the sheriff's conduct, and discharge him from being answerable to the plaintiff for the debt. "With respect to the first point, it seemeth that privilege is to be allowed in this case. For the proof of this it is necessary to consider the estate of parliament, which consists of three parts, namely, the king as the chief head, the lords chief and principal members of the body, and the commons, to wit, the knights, citizens, and burgesses, as the inferior members; and all together constitute the body of the parliament. It is also proper to consider the elections of these members, with what care and solemnity they are elected, the manner of performing which elections appears in the statutes made concerning them. And when they are chosen and returned to parliament, it is understood by all men they are the wisest and most discreet men in the kingdom, and the fittest to debate upon the good of the commonwealth; and accordingly the writ of summons to parliament directs that they be chosen de gravioribus et 'discretioribus viris,' &c. And after they are 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 authority 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 such 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 that cesty a que use' lege has always been granted by the king to his may enter and make a feoffiment, 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 fo 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 made 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 trahit ad se minus dig- this enlargement by writ is only a privilege of num; 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 trespassin perpetuum ;' as in the 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 seemeth, &c. It concluded 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 a subject; and the present case is stronger than the common ones, because the execution was sued during the time of parliament, and the plaintiff had his election whether he would sue out execution against his body or against his lands and goods. And further, every privilege is founded on prescription; and every prescription that promotes the public welfare is good, although it may be a prejudice to some private person: thus, in the time of Edw. 4, a prescription to dig in another man's ground adjoining to the sea, in order to erect bulwarks against the king's enemies, was held to be good. With 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 not 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 mainder over, and after the death of the tenant a capias or an exigent comes to the sheriff a 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 1 And as to the third point, it seemeth that the sheriff is not answerable: For if no default, or laches, can be ascribed to the sheriff, there can be no reason to charge him with the debt; and there seems to have been no default in him. For the office of sheriff consists chiefly in the execution and serving of writs and processes of the law: And to perform these he is the immediate officer, and he is sworn that he will perform them. And for this reason he is bound by his office and oath to make a just return. And the law supposes him to be a lay person, and not to have knowledge of the science of the law; and he is therefore unable to argue or 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 for the like reason the person of a man may be man was taken into custody by the special comprivileged for a certain time, and yet he may mandment of the king vel capitalis justificarii, and lives in antient demesne for a year, his lord afterwards be put in prison; as if a villain comes 'vel pro morte hominis, vel pro forestâ, vel pro 'aliquo alio recto quare secundum consuetudiaunot afterwards lay hands upon him; thenem Angliae non est replegiabilis. And furlaw is the same where the presence of the king ther by the statute of Marlbridge, cap. 8, the a sanctuary to him; and yet formerly the sheriff shall be amerced if he delivers a prisoner VOL. VIII. G And for redisseisin without special precept. The following accounts of the sentiments of SIR; Bath, Jan. 13, 1785. I feel myself very much honoured by your application to me, on an occasion so important to the public freedom; and I only lament, that neither my age nor experience are such as to give my opinion any authority with the court n which you practise; but wherever I have no doubt, I am always ready to say what I think, and you are, therefore, very welcome to my most public sentiments, if any use can be made of them. You have very properly confined your questions to the particular case, furnished me by the affidavit which you have transmitted to me; and my answers therefore need involve in them no general discussions upon the principles of civil government, which in the mere abstract are not often useful, nor always intelligible. The propositions, to which my answers are meant strictly to apply, are, First, Whether the facts charged by the affidavit, on which your court of King's-bench is proceeding against the magistrates of Leitrim, are sufficient to warrant any criminal prosecution for a misdemeanor whatsoever? Secondly, Whether, supposing them sufficient to warrant a prosecution by information or indictment, the court has any jurisdiction to proceed by attachment? As you are pushed in point of time, I can venture to answer both these questions at Bath, without the assistance of my books, because they would throw no light upon the first from its singularity, and the last is much too clear to require any from them. As to the first-The facts charged by the affidavit do of themselves neither establish nor exclude guilt in the defendants. In one state of society such proceedings might be highly criminal; and, in another, truly virtuous and legal. To create a national delegation amongst a free people, already governed by representation, can never be, under all circumstances, a crime: the objects of such delegation, and the purposes of those who seek to effect it, can alone determine the quality of the act, and the guilt or innocence of the actors. If it points (no matter upon what necessity) to supersede or to controul the existing government, it is self evident, that it cannot be tolerated by its laws. It may be a glorious revolution, but it is rebellion against the government which it changes. If, on the other hand, it extends no further than, to speak with certainty, the united voice of the nation to its representatives, without any derogation of their legislative authority and discretion; it is a legal proceeding, which ought not indeed to be lightly entertained, but which many national conjunctures may render wise and necessary. The Attorney General might, undoubtedly, convert the facts, contained in the affidavit, into a legal charge of a high misdemeanor; which, when properly put into the form of an information, the defendants could demur to: but he could not accomplish this, without putting upon the record averments of their criminal purposes and intentions; the truth of which averments are facts which he must establish at the trial, or fail in his prosecution. It is the province of the jury, who are the best judges of the state of the nation, and the most deeply interested in the 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 objects would be collected at the trial, from the conduct of the defendants in summoning the meeting, and the purposes of it when met. If the jury saw reason from the evidence to think that its objects, however coloured by expressions the most guarded and legal, were in effect, and intended to be, subversive of government and order, or calculated to stir up discontent, without adequate objects to vindicate the active attention of the public, they would be bound in conscience and in law to convict them: but if, on the other hand, their conduct appeared to be vindicated by public danger or necessity, directed to legal objects of reformation, and animated by a laudable zeal for the honour and prosperity of the nation; then no departure from accustomed forms in the manner of assembling; nor any incorrect expressions in the description of their object, would hind, or even justify, a jury to convict them as libellers of the government, or disturbers of the peace. To constitute a legal charge of either of these offences, the crown (as I before observed) must aver the criminal intention, which is the essence of every crime; and these averments must be either proved at the trial, or, if to be inferred, prima facie, from the facts themselves, may be rebutted by evidence of the defendants innocent purposes. If the criminal intent charged by the information be not established to the satisfaction of the jury, the information, which charges it, is not true; and they are bound to say so by a verdict of acquittal. I am therefore of opinion (in answer to the first question), that the defendants are liable to be prosecuted by information; but that the success of such prosecution ought to depend upon the opinion which the people of Ireland, forming a jury, shall entertain of their intention in summoning the meeting, and the real bona fide objects of the assembly when met. It is unnecessary to enlarge upon these principles, because their notoriety has no doubt suggested this novel attempt to proceed by attachment, where they have no place; and I cannot help remarking, that the prosecutor (if his prosecution be founded in policy or justice) has acted with great indiscretion, by shewing that he is afraid to trust the people with that decision upon it, which belongs to them by the constitution; and which they are more likely to give with impartial justice, than the judges whom he desires to decide upon it at the expence of their oaths and of the law. This is a strong expression, which perhaps, I should not have used in answering the same case in the ordinary course of business; but writing to you as a gentleman, I have no scruple in saying, that the judges of the court of King'sbench cannot entertain a jurisdiction by attachment over the matter contained in the affidavit which you have sent me, without such a gross usurpation and abuse of power, as would make me think it my duty, were I a member of the Irish parliament, to call them to account for it by impeachment. The rights of the superior courts to proceed by attachment, and the limitations imposed upon that right, are established upon principles too plain to be misunderstood. Every court must have power to enforce its own process, and to vindicate contempts of its authority; otherwise the laws would be despised, and this obvious necessity at once produces and limits the process of attachment. Wherever any act is done by a court which the subject is bound to obey, obedience may be enforced, and disobedience punished, by that summary proceeding.-Upon this principle attachments issue against officers for contempts in not obeying the process of courts directed to them, as the ministerial servants of the law and the parties on whom such process is served, may, in like manner, be attached for disobedience. Many other cases might be put, in which it is a legal proceeding, since every act which goes directly to frustrate the mandates of a court of justice, is a contempt of its authority. But I may, venture to lay down this distinct and absolute limitation of such process, viz.-That it can only issue in cases where the court, which issues it, has awarded some process-given some judgment-made some legal order-or done some act, which the party against whom it issues, or others on whom it is binding, have either neglected to obey, contumaciously refused to submit to: excited others, to defeat by artifice or force, or treated with terms of contumely and disrespect. But no crime however enormous, even open treason and rebellion, which carries with them a contempt of all law, and the authority of all courts, can possibly be considered as a con tempt of any particular court, so as to be pumishable by attachment, uniess the act, which is the object of that punishment, be in direct violation or obstruction of something previously done by the court which issues it, and which the party attached was bound, by some antecedent proceeding of it, to make the rule of his conduct. A constructive extension of contempt beyond the limits of this plain principle would evidently involve every misdemeanor, and deprive the subject of the trial by jury, in all cases where the punishment does not extend to touch his life. The peculiar excellence of the English government consists in the right of being judged by the country in every criminal case, and not by fixed magistrates appointed by the crown. In the higher order of crimes the people alone can accuse, and without their leave, distinctly expressed by an indictment found before them, no man can be capitally arraigned; and in all the lesser misdemeanors, which either the crown or individuals borrowing its authority, may prosecute, the safety of individuals and the public freedom absolutely depend upon the well known immemorial right of every defendant to throw himself upon his country for deliverance by the general plea of―Not Guilty. By that plea, which in no such case can be demurred to |